HomeMy WebLinkAboutResolution 2020-056 N.C.S. 05/04/2020Resolution No. 2020-056 N.C.S.
of the City of Petaluma, California
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PETALUMA
APPROVING AN AGREEMENT BETWEEN THE CITY OF PETALUMA AND THE
SONOMA MARIN AREA RAIL TRANSIT DISTRICT FOR DESIGN AND
CONSTRUCTION OF CORONA STATION IMPROVEMENTS
WHEREAS, Lomas Corona Station LLC, the owner of property at 890 North McDowell
Boulevard, APN 137-061-019, in Petaluma ("Corona Property") and Lomas SMART LLC,
which is in contract to purchase property owned by SMART located at 315 East D Street, APN
007-131-003, in Petaluma ("Downtown SMART Property") are under the same management and
ownership, and are referred to in this resolution as the "Developer;" and
WHEREAS, the Downtown SMART property is adjacent to property owned by SMART
located on A.P.N. 007-131-004 ("Depot Property") that contains SMART station and depot and
other improvements and that is subject to a lease agreement between SMART and the City
("Depot Lease"), and the City licenses the Depot Property to the Downtown Business
Association and the Petaluma Arts Alliance for office space use; and
WHEREAS, Developer has submitted applications to the City for approval of
development of the Corona Station Residential Project (the "Corona Project") on the Corona
Property, including applications for a Zoning Text Amendment ("Corona Zoning Amendment"),
a Development Agreement ("Development Agreement"), a Density Bonus and Development
Concession/Incentive ("Corona Density Bonus"), a Tentative Subdivision Map ("Corona
Tentative Map"), Conditional Use Permit ("Corona Use Permit"), and Site Plan and
Architectural Review ("Corona SPAR") for a 110 unit residential project within the MUIB zone
with Flood Plain -Combining (FP -C) Overlay, on the Corona Property; and
WHEREAS, Developer is in contract with SMART to purchase the Downtown SMART
Property which shall in turn be sold to the Hines company ("Hines") for development of a
residential project ("Downtown Project") on the Downtown SMART Property; and
WHEREAS, Developer has provided the City conceptual plans for the Downtown
Project, but no application has been submitted to the City for the Downtown Project, and the
conceptual plans for the Downtown Project indicate a project consisting of 402 residential units
and ground floor tenant amenity uses; and
WHEREAS, Developer plans to use the proceeds from Developer's sale of the Corona
Project to purchase the Downtown SMART Property from SMART, and to sell the Downtown
SMART Property to Hines, including City -approved alternative inclusionary housing
Resolution No. 2020-056 N.C.S. Page 1
compliance, but otherwise subject to future City approval of subsequent entitlement applications
to be submitted by Hines; and
WHEREAS, Developer's fee ownership of the Corona Property entitles Developer to
engage in the development of the Corona Property in accordance with Section 23.030 of the City
Development Agreement Requirements; and
WHEREAS, Developer's contractual obligation to purchase the Downtown SMART
Property in accordance with the Developer/SMART Agreement entitles the Developer to engage
in Development of the Downtown SMART Property in accordance with Section 23.030 of the
City Development Agreement Requirements subject to the terms of the Developer/SMART
Agreement; and
WHEREAS, the agreement between Developer and SMART dated October 12, 2019
("Developer/SMART Agreement") is attached to and made a part of the Development
Agreement, and in accordance with Section 9(a) of the Developer/SMART Agreement, the close
of escrow on the purchase of the Downtown SMART Property is required to occur on May 19,
2020; and
WHEREAS, Section 2(a) of the Developer/SMART Agreement requires as
consideration for purchase of the Downtown SMART Property a payment of $8 million, and in
accordance with Section 9(c) of the Developer/SMART Agreement, Developer must deposit into
escrow the remainder of the $8 million purchase amount, less a non-refundable $500,000 deposit
already given by Developer and closing costs allocable to Developer by May 17, 2020; and
WHEREAS, Section 9(e), the Developer/SMART Agreement also requires Developer to
dedicate to SMART 1.27 acres of land at the corner of McDowell Boulevard and Corona Road in
Petaluma for the Corona SMART Station improvements, and the Corona Tentative Map includes
such 1.27 acres of land as a remainder parcel; and
WHEREAS, SMART intends to use the proceeds from sale of the Downtown SMART
Property for the cost of design and construction of the Corona SMART Station on land at
McDowell Boulevard and Corona Road in Petaluma, with terms regarding the design and
construction of the Corona SMART Station being the subject of the proposed agreement to be
executed between SMART and the City pursuant to the authorization provided by this resolution;
and
WHEREAS, in 2016, the City contracted with Willdan Financial Services ("Willdan") to
perform a nexus analysis to determine the City's ability to fund the cost of parking
improvements for the Corona Station project fiom the City's traffic development impact fees;
and
Resolution No. 2020-056 N.C.S. Page 2
WHEREAS, Willdan determined that a nexus exists for including parking structure
improvements for the Corona SMART Station in the City's traffic impact fee program, that
similar to other transit improvements included in the fee program, 22.43% of the cost of the
Corona Station parking improvements could be attributed to future development, and that based
on an estimated parking structure improvement cost of $10,500,000, $2,355,134 of the parking
structure improvement costs could be recovered through an increase in the City's traffic impact
fees; and
WHEREAS, on May 16, 2016, the City Council approved Resolution No. 2016-076
N.C.S. repealing and replacing Resolution No. 2015-191 N.C.S and modifying the City's traffic
impact fee program based on the Willdan analysis to add up to $2,355,134 in funding for parking
improvements for the Corona SMART Station; and
WHEREAS, the City has anticipated since updating City traffic impact fees on May 16,
2016 that City funding for the Corona SMART station would come entirely from traffic impact
fee proceeds, and that City funding for the Corona SMART station would be allocated entirely to
parking improvement costs; and
WHEREAS, as a result of changing cost estimates for the Corona Station project, the
City financial contribution must be designated more generally for Corona Station improvements,
which may include station design, construction, parking improvements and other costs, pursuant
to SMART's design/build contract; and
WHEREAS, Willdan, the consultants that prepared the 2016 update to the City's Traffic
Impact fees have confirmed that using City traffic fee proceeds for Corona Station costs is
permitted under the City's existing Traffic Impact Fee legislation because the nexus - traffic
relief due to Corona Station SMART ridership - is unchanged, and the costs are also comparable,
and, as a result, the City may rely entirely on Traffic Impact Fee proceeds to provide $2 million
toward the Corona Station project costs; and
WHEREAS, the attached, proposed City/SMART Agreement provides for allocation of
$2 million in City funds for the Corona SMART Station improvements, which will provide
traffic relief in Petaluma via commuter use of the Corona SMART Station consistent with the
purposes of use of Traffic Impact fee proceeds for the Corona SMART Station; and
WHEREAS, Developer's payment for purchase of the Downtown SMART Property in
accordance with the Developer/SMART Agreement, the proceeds of which are to be used to
fund construction of the Corona SMART Station, and Developer's dedication of 1.27 acres of
land at McDowell Boulevard and Corona Road for the Corona SMART Station are critical
elements of achieving the Corona SMART Station and essential consideration regarding the
Resolution No. 2020-056 N.C.S. Page 3
City's review of the Corona Project, the Downtown Project, and the Development Agreement;
and
WHEREAS, the City's payment of $2 million in City traffic impact fee proceeds
allocated the Corona SMART Station improvements is also a critical element of achieving the
Corona SMART Station and essential consideration for purchase of the Downtown SMART
Property and the Development Agreement; and
WHEREAS, SMART indicates that construction work for the Corona SMART Station
must coincide with the construction work on the planned Windsor SMART station originally
scheduled for March 2020, such that Developer's payment for the Downtown SMART Property
and dedication of 1.27 acres at Corona Road and Mc Dowell Boulevard must occur before the
scheduled closing on the Downtown SMART Property purchase on May 19, 2020 for the Second
Petaluma Station construction to proceed in conjunction with the Windsor station; and
WHEREAS, the justification for entering into the Development Agreement with the
Developer regarding the Corona Station Residential Project and the Downtown Project and the
special long-term project considerations that make preservation of existing zoning requirements
desirable throughout the life of the Corona Project, or so long as otherwise provided in the
Development Agreement, consist of dedication of land for, and funding of, construction of the
Corona SMART Station on land at McDowell Boulevard and Corona Road in Petaluma, as well
as considerations regarding inclusionary housing compliance of the Corona and Downtown
projects; and
WHEREAS, the potential environmental impacts of the Corona Project were identified
and analyzed in accordance with the requirements of the California Environmental Quality Act
("CEQA") and the CEQA Guidelines, and an Initial Study/Mitigated Negative Declaration
("IS/MND") was prepared to address potential environmental impacts of the Project; and
WHEREAS, pursuant to the State Development Agreement Law and the City
Development Agreement Requirements, notice of a public hearing before the Planning
Commission on the Corona Project Approvals, including the Development Agreement was
mailed to all property owners within a 1,000 foot radius of the Corona Property, and a public
hearing notice was published once in the Petaluma Argus Courier on October 17, 2019, twenty-
seven days prior to the Planning Commission hearing on the Corona Project and the
Development Agreement; and
WHEREAS, on November 12, 2019, November 19, 2019, and January 14, 2020, the
Planning Commission held public hearings on the Corona Project Approvals, including the
Development Agreement, at which time interested persons had an opportunity to testify either in
support or opposition; and
Resolution No. 2020-056 N.C.S. Page 4
WHEREAS, at the November 19, 2019 public hearing on the Corona Project Approvals,
including the Development Agreement, the Planning Commission considered the IS/MND
prepared for the Corona Project, and deliberated on the IS/MND and the Corona Project
Approvals, including the proposed Development Agreement, and by a vote of 5-2 adopted
Resolution no. 2019-017 recommending approval of the IS/MND, Resolution no. 2019-018
recommending City Council denial of the Development Agreement, Resolution No. 2019-019
recommending denial of the Corona Density Bonus, and Resolution no. 2019-020 recommending
denial of the Corona Tentative Map; and
WHEREAS, at the January 14, 2020 public hearing on the Corona Zoning Amendment
the Planning Commission by a vote of 6-1 adopted Resolution No. 2020-01 denying the Corona
Zoning Amendment; and
WHEREAS, on January 15, 2020 the Developer submitted an application appealing the
Planning Commission's denial of the Corona Zoning Amendment; and
WHEREAS, pursuant to the State Development Agreement Law and the City
Development Agreement Requirements, notice of a public hearing before the City Council on the
Project Approvals, including the Development Agreement, was mailed to all property owners
within a 1,000 foot radius of the Corona Property, and a public hearing notice was published
once in the Petaluma Argus -Courier on January 16, 2020, 11 days prior to the City Council
hearing on the Project Approvals, including the Development Agreement; and
WHEREAS, on January 27, 2020 the City Council held a public hearing on the Corona
Project Approvals, including the Development Agreement, at which time interested persons had
an opportunity to testify either in support or opposition; and
WHEREAS, at the January 27, 2020 public hearing on the Corona Project Approvals,
including the Development Agreement, the City Council considered Planning Commission
Resolution no. 2019-017 recommending approval of the IS/MND prepared for the Corona
Project, Resolution no. 2020-001 denying the Corona Zoning Amendment, Resolution no. 2019-
018 recommending denial of the Development Agreement, Resolution no. 2019-019
recommending denial of the Corona Density Bonus, and Resolution no. 2019-020 recommending
denial of the Corona Tentative Map, and deliberated on the IS/MND and the Corona Project
Approvals sought, including the Development Agreement; and
WHEREAS, following the January 27, 2020 public hearing on the Corona Project
Approvals, the City Council continued the hearing to a date certain of February 10, 2020; and
WHEREAS, the planned February 10, 2020 City Council meeting was cancelled; and
Resolution No. 2020-056 N.C.S. Page 5
WHEREAS, pursuant to the State Development Agreement Law and the City
Development Agreement Requirements, notice of a public hearing before the City Council on the
Corona Project Approvals on February 24, 2020, including the Development Agreement, was
mailed to all property owners within a 1,000 radius of the Property, and a public hearing notice
was published once in the Petaluma Argus Courier on February 13, 2020, 11 days prior to the
City Council hearing on the Corona Project Approvals, including the Development Agreement;
and
WHEREAS, on February 24, 2020 the City Council held a public hearing on the Corona
Project Approvals, including the Development Agreement, at which time interested persons had
an opportunity to testify either in support or opposition; and
WHEREAS, at the February 24, 2020 public hearing on the Corona Project Approvals,
including the Development Agreement, the City Council considered Planning Commission
Resolution no. 2019-017 recommending approval of the IS/MND prepared for the Corona
Project, Resolution no. 2020-001 denying the Corona Zoning Amendment, Resolution no. 2019-
018 recommending denial of the Development Agreement, Resolution no. 2019-019
recommending denial of the Corona Density Bonus, and Resolution no. 2019-020 recommending
denial of the Corona Tentative Map, and deliberated on the IS/MND and the Corona Project
Approvals sought, including a resolution approving the IS/MND, an ordinance approving the
appeal and introducing the Corona Zoning Amendment, an ordinance introducing the
Development Agreement, a resolution approving the Corona Density Bonus, and a resolution
approving the Corona Tentative Map, and considered all of the information contained in the
record concerning the proposed Project Approvals including the Development Agreement, and
approved the Project Approvals, including the ordinance introducing the Development
Agreement; and
WHEREAS, in accordance with Article XI, Section 7, of the California Constitution, the
City may make and enforce within its limits all local, police, sanitary, and other ordinances and
regulations not in conflict with general laws; and
WHEREAS, in accordance with Article, XI, Section 5, of the California Constitution, as
a charter City, the City may make and enforce all ordinances and regulations in respect to
municipal affairs, subject only to restrictions and limitations provided in its charter, and with
respect to municipal affairs, the City's ordinances and regulations shall supersede all inconsistent
state laws; and
WHEREAS, in accordance with Article XI, Section 9, of the California Constitution, the
City may establish, purchase and operate public works to furnish residents with light, water,
power, heat, transportation, and means of communication; and
Resolution No. 2020-056 N.C.S. Page 6
WHEREAS, in accordance with Section 54 of the Petaluma Charter, the City, by and
through its council and other officials, shall have and may exercise all powers necessary or
appropriate to the municipal corporation and the general welfare of its inhabitants, which are not
prohibited by the constitution, and the specifications in the Petaluma Charter of any particular
powers shall not be held to be exclusive or any limitation of the City's general grant of powers;
and
WHEREAS, in accordance with Section 54981 of the Government Code, the City may
contract with any other local agency for the performance of municipal services or functions
within the City's territory; and
WHEREAS, in accordance with Section 105032 of the Public Utilities Code, the
SMART Board has the power to own, operate, manage, and maintain a passenger rail system
within the territory of the district, and to determine the rail transit facilities, including ancillary
bicycle and pedestrian pathways, to be acquired and constructed by SMART, the manner of
operation, and the means to finance them; and
WHEREAS, in accordance with Section 105070 of the Public Utilities Code, SMART
may make contracts and enter into stipulations of any nature whatsoever, employ labor, and do
all acts necessary and convenient for the full exercise of SMART's granted powers; and
WHEREAS, in accordance with Section 105085 of the Public Utilities Code, SMART
may take by grant, purchase, devise, or lease, or condemn in proceedings under eminent domain,
or otherwise acquire, and hold and enjoy, real property of every kind within or without the
district necessary to the full or convenient exercise of its powers, and may lease, mortgage, sell,
or otherwise dispose of any real or personal property when in its judgment it is in the best
interests of SMART to do so; and
WHEREAS, in accordance with Section 105096 of the Public Utilities Code, SMART
may acquire, construct, own, operate, control, or use rights-of-way, rail lines, stations, platforms,
switches, yards, terminals, parking lots, and any and all other facilities necessary or convenient
for rail transit within and without the district, together with all physical structures necessary or
convenient for the access of persons and vehicles thereto, including ancillary bicycle and
pedestrian pathways, and may acquire or contract for any interest in or rights to the use or joint
use of any or all such facilities; and
WHEREAS, in accordance with Section 105101 of the Public Utilities Code, SMART
may enter into agreements for the joint use of any property and rights by SMART and any city,
public agency, or public utility operating transit facilities and may enter into agreements with
Resolution No. 2020-056 N.C.S. Page 7
any city, public agency, or public utility operating any transit facilities, wholly or partially within
or without the district, for the joint use of any property of SMART or of the city, public agency,
or public utility, or for the establishment of through routes, joint fares, transfer of passengers, or
pooling agreements; and
WHEREAS, approval of the City/SMART agreement is exempt from the requirements
of the California Environmental Quality Act ("CEQA") under the "common sense" exception in
CEQA Guidelines Section 15061(b)(3) which establishes the general rule for projects concerning
which it can be seen with certainty that there is no possibility that the activity in question may
have a significant effect on the environment, which activities are not subject to CEQA, because
the City/SMART agreement relates to the provision of funds for the design and construction of
the Corona SMART station, and the agreement expressly provides that the future project to
construct the Corona Station will be evaluated under all applicable environmental laws and
regulations.
NOW, THEREFORE, the Council of the City of Petaluma does hereby resolve as follows:
1. Recitals Made Findings. The above recitals are hereby declared to be true and
correct and are incorporated into this resolution as findings of the City Council.
2. Agreement Exempt from CEQA. Approval of the City/SMART Agreement is
exempt from the requirements of CEQA under the "common sense" exception in
CEQA Guidelines Section 15061(b)(3) which establishes the general rule for projects
concerning which it can be seen with certainty that there is no possibility that the
activity in question may have a significant effect on the environment, which activities
are not subject to CEQA, because the City/SMART agreement relates to the provision
of funds for the design and construction of the Corona SMART station, and the
Agreement expressly provides that the future project to construct the Corona Station
will be evaluated under all applicable environmental laws and regulations.
3. Agreement for Corona Station Improvements Approved. The Agreement
between the City of Petaluma and the Sonoma Marin Are Rail Transit District
("SMART") for Construction of Corona Station Improvements in the City of
Petaluma and Related Matters ("Corona Station Improvements Agreement") which is
attached to and made a part of this resolution as Exhibit A is hereby approved.
4. City Manager Authorized to Execute Agreement. The City Manager is hereby
authorized and directed to execute an agreement for Corona Station Improvements
with SMART substantially in accordance with that attached as Exhibit A, subject to
such changes to the agreement deemed necessary or appropriate by the City Manager
and approved by the City Attorney to affect the intended purposes of this resolution.
Resolution No. 2020-056 N.C.S. Page 8
5. Construction of the Corona Station Improvements Subject to All Applicable
Laws. SMART's construction of the Corona Station Improvements shall be subject
to compliance with all laws and regulatory approvals applicable thereto, including,
without limitation, approvals required pursuant to the California Environmental
Quality Act ("CEQA").
6. Severability. The City Council hereby declares that every section, paragraph,
sentence, clause, and phrase of this resolution is severable. If any section, paragraph,
sentence, clause or phrase of this resolution is for any reason found to be invalid or
unconstitutional, such invalidity, or unconstitutionality shall not affect the validity or
constitutionality of the remaining sections, paragraphs, sentences, clauses, or phrases.
7. Resolution Effective Immediately. This Resolution shall take effect immediately
upon its adoption.
Under the power and authority conferred upon this Council by the Charter of said City.
REFERENCE:
I hereby certify the foregoing Resolution was introduced and adopted by the
Approved as to
Council of the City of Petaluma at a Regular meeting
on the 41h day of May 2020,
f
by the following vote:
City Attorney
AYES:
Healy; Kearney; King; McDonnell; Miller
NOES:
Mayor Barrett; Vice Mayor Fischer
ABSENT:
None
ABSTAIN:
None
ATTEST:
City Clerk
Mayor
Resolution No. 2020-056 N.C.S. Page 9
Exhibit A
Agreement
between
the City of Petaluma
and
the Sonoma Marin Area Rail Transit District
for
Construction of Corona Station Improvements in the City of Petaluma
and Related Matters
This agreement ("Agreement") is entered into as of , 2020 by and between the
City of Petaluma, a California municipal corporation and charter city ("City"), and the Sonoma
Marin Area Rail Transit District ("SMART"), a regional transportation district.
Recitals
A. Lomas Corona Station LLC, the owner of property at 890 North McDowell
Boulevard, APN 137-061-019, in Petaluma ("Corona Property") and Lomas SMART LLC,
which is in contract to purchase property owned by SMART located at 315 D Street, APN 007-
131-003, in Petaluma ("Downtown SMART Property") are under the same management and
ownership, and are referred to in this Agreement as the "Developer."
B. The Downtown SMART property is adjacent to property owned by SMART,
A.P.N. 007-131-004 ("Depot Property") that contains SMART station and depot and other
improvements and that is subject to a lease agreement between SMART and the City ("Depot
Lease"). The Depot Lease was originally entered on August 1, 2003. The original parties to the
Depot Lease were the Northwestern Pacific Railroad Authority as property owner the Petaluma
Community Development Commission as lessee. SMART succeeded the original property
owner by operation of law and the Petaluma Community Development Commission assigned its
interest as lessor to the City pursuant to an Assignment and Assumption Agreement dated
August 22, 2013. The City licenses the Depot Property to the Downtown Business Association
and the Petaluma Arts Alliance for office space use.
C. The agreement between Developer and SMART dated October 12, 2019
("Developer/SMART Agreement"), provides for the close of escrow on the purchase of the
Downtown SMART Property to occur on May 19, 2020.
D. Section 2(a) of the Developer/SMART Agreement requires as consideration for
purchase of the Downtown SMART Property a payment of $8 million, and in accordance with
Section 9(c) of the Developer/SMART Agreement, Developer must deposit into escrow the
remainder of the $8 million purchase amount, less a non-refundable $500,000 deposit already
given by Developer and closing costs allocable to Developer by May 15, 2020.
E. Section 9(e), the Developer/SMART Agreement also requires Developer to
transfer all rights, title and interest in the remainder parcel to SMART of 1.27 acres of land at the
corner of McDowell Boulevard and Corona Road in Petaluma and the Developer's Corona
Tentative Map application includes such 1.27 acres of land as a remainder parcel.
F. On October 12, 2019 SMART entered into an agreement to sell SMART's
Downtown properly to Developer (for 8 million and 1.27 remainder parcel).
Resolution No. 2020-056 N.C.S. Page 10
G. City intends to place into the escrow for purchase of the Downtown SMART
Property $2 million of the $8 million purchase price. The City contribution will be funded by
traffic impact fee proceeds that were established in 2016 for this purpose, and will be used to
fund Corona Station improvements which will provide traffic relief in Petaluma via commuter
use of the Corona SMART station.
H. Developer's payment for the Downtown SMART Property and dedication of 1.27
acres at Corona Road and Mc Dowell Boulevard must occur by the scheduled closing on the
Downtown SMART Property purchase on May 19, 2020 in order for SMART to request a
Change Order and proposal from SMART's existing train system contractor for the Second
Petaluma Station design and construction to proceed approximately concurrently with the
Windsor station.
I. In accordance with Article XI, Section 7, of the California Constitution, the City
may make and enforce within its limits all local, police, sanitary, and other ordinances and
regulations not in conflict with general laws.
J. In accordance with Article, XI, Section 5, of the California Constitution, as a
charter City, the City may make and enforce all ordinances and regulations in respect to
municipal affairs, subject only to restrictions and limitations provided in its charter, and with
respect to municipal affairs, the City's ordinances and regulations shall supersede all inconsistent
state laws.
K. In accordance with Article XI, Section 9, of the California Constitution, the City
may establish, purchase and operate public works to furnish residents with light, water, power,
heat, transportation, and means of connnunication.
L. In accordance with Section 54 of the Petaluma Charter, the City, by and through
its council and other officials, shall have and may exercise all powers necessary or appropriate to
the municipal corporation and the general welfare of its inhabitants, which are not prohibited by
the constitution, and the specifications in the Petaluma Charter of any particular powers shall not
be held to be exclusive or any limitation of the City's general grant of powers.
M. In accordance with Section 54981 of the Government Code, the City may contract
with any other local agency for the performance of municipal services or functions within the
City's territory.
N. In accordance with Section 105032 of the Public Utilities Code, the SMART
Board has the power to own, operate, manage, and maintain a passenger rail system within the
territory of the district, and to determine the rail transit facilities, including ancillary bicycle and
pedestrian pathways, to be acquired and constructed by SMART, the manner of operation, and
the means to finance them.
O. In accordance with Section 105070 of the Public Utilities Code, SMART may
make contracts and enter into stipulations of any nature whatsoever, employ labor, and do all
acts necessary and convenient for the full exercise of SMART's granted powers.
P. In accordance with Section 105085 of the Public Utilities Code, SMART may
take by grant, purchase, devise, or lease, or condemn in proceedings under eminent domain, or
otherwise acquire, and hold and enjoy, real property of every kind within or without the district
necessary to the full or convenient exercise of its powers, and may lease, mortgage, sell, or
Resolution No. 2020-056 N.C.S. Page 1 I
otherwise dispose of any real or personal property when in its judgment it is in the best interests
of SMART to do so.
Q. In accordance with Section 105096 of the Public Utilities Code, SMART may
acquire, construct, own, operate, control, or use rights-of-way, rail lines, stations, platforms,
switches, yards, terminals, parking lots, and any and all other facilities necessary or convenient
for rail transit within and without the district, together with all physical structures necessary or
convenient for the access of persons and vehicles thereto, including ancillary bicycle and
pedestrian pathways, and may acquire or contract for any interest in or rights to the use or joint
use of any or all such facilities,.
R. In accordance with Section 105101 of the Public Utilities Code, SMART may
enter into agreements for the joint use of any property and rights by SMART and any city, public
agency, or public utility operating transit facilities and may enter into agreements with any city,
public agency, or public utility operating any transit facilities, wholly or partially within or
without the district, for the joint use of any property of SMART or of the city, public agency, or
public utility, or for the establishment of through routes, joint fares, transfer of passengers, or
pooling agreements.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the City and SMART agree as follows:
1. Recitals. The above recitals are true and correct and are made a part of this
Agreement.
2. Corona Station Project.
2.1 Within 60 days of close of escrow on the Developer's purchase of the Downtown
SMART Property pursuant to the Developer/SMART Agreement, (1) SMART will initiate a
request for change notice and proposal from SMART's existing Civil and System Contracts for
design and construction of the Train System improvements; (Together "Corona Station Project")
2.2 Should the combined Corona Station Project Contract(s) proposals NOT exceed
$8 million, SMART agrees to initiate a design/build Change Order to existing Contracts for
Corona Station Project in SMART right of way located at , A.P.N. ("Corona
Station Property") subject to the terms of this Agreement and to applicable regulatory
requirements, including but not limited to, those of the California Public Utilities Commission
("CPUC") and the Federal Railway Administration ("FRA"). SMART will be responsible for
obtaining all applicable regulatory approvals required for construction of the Corona Station
Proj ect.
OR in the alternative
2.3 Should the combined Corona Station Project Contract(s) Proposals exceed $8
million SMART agrees to use the $2 million in City funding for the Corona Station Project, and
to match the City funds with $2 million in SMART funding, and to progress as far as is
reasonably possible toward completing design and construction of the Corona Station Project
using the $4 million in combined City and SMART funding and to seek additional Regional,
State or Federal funding needed to complete the construction of the Corona Station Project.
Once SMART obtains the funding needed to complete the construction of the Corona Station
Project, it will be allocated to completion of the Corona Station Project and the project will
proceed to completion.
Resolution No. 2020-056 N.C.S. Page 12
3. City Funding
3.1 City Funding. City will deposit $2 million in the escrow for the Developer
/SMART agreement by May 15, 2020, so that the close of escrow on the Developer's purchase
of the Downtown SMART Property can occur by May 19, 2020, in accordance with Section 9(a)
of the Developer/SMART Agreement. The City's contribution of $2 million in City funds to the
cost of constructing the Corona Station Project will be the maximum City contribution to funding
of the Corona Station Project, and the City will not be required to provide further funding for
completion of the Corona Station Project. In the event any challenge is brought by a third party
concerning this Agreement or City's funding of this Agreement, prior to close of escrow City
may terminate this Agreement in accordance with Section 7, below.
3.2 If City elects to defend such third party challenge to this Agreement or City's
funding of this Agreement or City terminates this Agreement, City shall indemnify, defend,
protect, hold harmless, and release SMART, its officials, officers, agents, and employees, from
and against any and all claims, loss, proceedings, damages, causes of action, liability, costs, or
expense (including attorneys' fees and costs) arising from or in connection with, or caused by
any act, omission, or negligence of the City regarding this Agreement or City's Funding of this
Agreement.
4. Corona Station Project/Depot Project Cooperation. The City and SMART agree
to cooperate in good faith regarding the Corona Station Project in accordance with this
Agreement. To the extent any construction of the Corona Station Project and/or the Downtown
Depot Lease Amendment contemplated herein is subject to approvals of the City or SMART
requires cooperation of the City regarding obtaining approvals from other government bodies,
the City agrees to cooperate with SMART and not unreasonably withhold City approvals or
encroachment permits which shall be issued at no cost to SMART and to cooperate with
SMART concerning obtaining approvals from other government bodies. SMART agrees to
cooperate with the City concerning City approvals and coordination related to construction of the
Corona Station Project, such as concerning impacts of the Corona Station Project construction on
City right of way and traffic, or obtaining City encroachment permits.
5. Depot Lease Amendment. On May 4th, 2020 City will introduce an Ordinance
approving an amendment to the Depot Lease which approval shall be effective no later than June
181h, 2020. City and SMART agree to amend the Depot Lease at no cost to SMART, to provide
for City's and SMART's shared use of parking spaces on the Depot Property as follows: Upon
construction of any needed improvements, signage and striping: (1) SMART patrons may use
parking spaces at the Depot during SMART's operational hours and Tenant patrons may use
parking spaces at the Depot during the tenants operational hours on a first come first serve basis
(2) No other parking will be allowed including; no overnight parking or parking for any
residential, retail or commercial uses (3) SMART will be responsible for enforcing parking and
restrictions as per other SMART parking facilities. City will provide through other agreement or
understanding with new owner of Downtown SMART Property for SMART's continued use of
the parking on the Downtown SMART Property and preservation of the existing ingress/egress
through the Downtown SMART property to the Depot Property until new owner commences
development of the Downtown SMART Property.
6. Term. The Term of this Agreement will commence upon approval of this
Agreement by the City Council and SMART Board, and expire upon SMART's completion of
the Corona Station Project as delineated under Section 2.2 or in the alternative, upon the
expenditure of $4 million in combined City and SMART funding to progress as far as is
reasonably possible toward completing design and construction of the Corona Station Project as
Resolution No. 2020-056 N.C.S. Page 13
delineated under Section 2.3, subject to the terms of this Agreement and to applicable regulatory
requirements, including but not limited to, those of the California Public Utilities Commission
("CPUC") and the Federal Railway Authority ("FRA"), unless sooner terminated or the Term is
otherwise amended in accordance with Section 10.
7. Termination.
7.1 In the event any challenge is brought by a third party concerning this Agreement
or City's funding of this Agreement, the City may terminate this Agreement prior to close of
Developer/SMART escrow in accordance with Section 3. The City and SMART may terminate
this Agreement for cause following written notice to the other party or by mutual agreement.
7.2 Should escrow fail to close on the Downtown SMART property due to
Developer's failure to fully perform under the Developer/SMART Agreement dated October 12,
2019, , or should City terminate this Agreement prior to closing of escrow in response to a third
party challenge to this Agreement or its funding, City shall be entitled to a refund from escrow of
City's $2 million deposit and SMART shall have no further duties, responsibilities or obligations
to CITY.
7.3 Upon the expiration of the Term in accordance with Section 6 above, SMART
shall be deemed to have fully performed under this Agreement, this Agreement shall terminate
and neither SMART nor City shall have further duties, responsibilities or obligations under this
Agreement e.
7.4 Should City fail to timely perform its obligations under Section 3 or Section 5 of
this agreement, SMART may terminate this agreement and SMART shall have no further duties,
responsibilities or obligations to City.
8. Liability. This Agreement is not intended to create and may not be construed so
as to create any liability of the parties or any standard of care of the parties in excess of that
established pursuant to this Agreement and existing law applicable to the parties. Except as
otherwise provided in Section 3 neither party will have any liability for the acts or omissions of
the other party.
9. Remedies. The remedies available to the City and SMART for breach of the
terms of this Agreement will be limited to (1) Specific performance of the obligations of the City
to timely perform as provided for in Section 3 and 5 of this agreement (2) Specific performance
of the obligations of SMART as provided for in Section 2, subject to the terms of this Agreement
and to applicable regulatory requirements, including but not limited to, those of the California
Public Utilities Commission ("CPUC") and the Federal Railway Authority ("FRA")
10. Amendment. This Agreement may only be amended by a writing signed by
authorized representatives of each party.
11. Notice. Unless otherwise requested by a party, all notices, demands, requests,
consents or other communications which may be or are required to be given by either party to the
other shall be in writing and shall be deemed effective upon service. Notices shall be deemed to
have been properly given when served on the party to whom the same is to be given by hand
delivery or by deposit in the United States mail addressed to the party as follows:
Resolution No. 2020-056 N.C.S. Page 14
District: Farhad Mansourian, District Manager
Sonoma -Marin Area Rail Transit District
5401 Old Redwood Highway
Petaluma, CA 94954
City: Peggy Flynn, City Manager
11 English Street
Petaluma, CA 94952
When a notice is given by a generally recognized overnight courier service, the notice, invoice or
payment shall be deemed received on the next business day. When a notice or payment is sent
via United States Mail, it shall be deemed received seventy-two (72) hours after deposit in the
United States Mail, registered or certified, return receipt requested, with the postage thereon fully
prepaid. In all other instances, notices, and payments shall be effective upon receipt by the
recipient. Changes may be made in the names and addresses of the person to whom notices are
to be given by giving notice pursuant to this paragraph.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
13. Merger. This Agreement contains the entire understanding between the parties,
and no statement, promise, or inducement made by either party or agents of the parties that is not
contained in this Agreement shall be valid or binding; and this Agreement may not be enlarged,
modified, or altered except in accordance with Section 10.
14. Authority. The undersigned represent and warrant that they each have the
authority to execute and deliver this Agreement on behalf of each respective parry.
15. No Waiver. The waiver by any of the parties of any breach of any term or
promise contained in this Agreement shall not be deemed to be a waiver of such term or
provision or any subsequent breach of the same or any other term or promise contained in this
Agreement.
16. Time of the Essence. Time is of the essence in this Agreement and each of its
provisions.
17. No Third Party Beneficiaries. Nothing in this Agreement, expressed or implied, is
intended to or shall confer upon the Developer (Lomas Corona Station LLC), any subsequent
owner of the "Corona Property"/ "Downtown SMART Property," any successor or assign, or any
Person other than the parties to this agreement any legal or equitable right, benefit or remedy of
any nature under or by reason of this Agreement.
IN WITNESS WHEREOF, authorized representatives of the City and SMART have each
executed this Agreement as of the date first written above.
City of Petaluma Sonoma Marin Area Rail Transit District
By: By:
Peggy Flynn, City Manager Farhad Mansourian, General Manager
Resolution No. 2020-056 N.C.S. Page 15
Attest:
By:
Claire Cooper, City Clerk
Approved as to form:
By:
Eric W. Danly, City Attorney
Approved as to form:
Thomas F. Lyons, District Counsel
Resolution No. 2020-056 N.C.S.
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