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HomeMy WebLinkAboutResolution 2020-081 N.C.S. 06/01/2020Resolution No. 2020-081 N.C.S. of the City of Petaluma, California A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PETALUMA RESCINDING AND REPLACING RESOLUTION NO. 2020-056 N.C.S. AND 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 MU1B 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 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 Resolution No. 2020-081 N.C.S. Page 1 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, as amended pursuant to the First Amendment dated as of April 28, 2020 ("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, as amended, the close of escrow on the purchase of the Downtown SMART Property is required to occur by the earlier of November 19, 2020, or when the City approves the entitlements for the Downtown SMART Property and the appeal period has expired; and WHEREAS, Section 2(a) of the Developer/SMART Agreement as amended 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, as amended, Developer must deposit into escrow the remainder of the $8 million purchase amount, less a non-refundable deposit already given by Developer and closing costs allocable to Developer by no later than 2 business days prior to the close of escrow; and WHEREAS, Section 9(d), the Developer/SMART Agreement as amended 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 from the City's traffic development impact fees; and 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 Resolution No. 2020-081 N.C.S. Page 2 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 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 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 inclusionaiy housing compliance of the Corona and Downtown projects; and Resolution No. 2020-081 N.C.S. Page 3 WHEREAS, the potential environmental impacts of the Corona Station Residential 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 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 Resolution No. 2020-081 N.C.S. Page 4 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 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 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 Resolution No. 2020-081 N.C.S. Page 5 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 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, the potential environmental impacts of the Sonoma Marin Area Transit (SMART) Project, inclusive of the Corona Station Project, were identified and analyzed in accordance with the requirements of CEQA by the lead agency, the SMART District, and an Environmental Impact Report was certified by resolution (No. 2006-05 and 2008-05) addressing potential environmental impacts of the Project (SMART EIR, SCH # 2002112033); and WHEREAS, the SMART District, as the lead agency, adopted a Mitigation Monitoring Plan (SMART MMP, January 2011), to be implemented for the SMART Project, inclusive the Corona Station Project; and Resolution No. 2020-081 N.C.S. Page 6 WHEREAS, the SMART District, as the lead agency is responsible for implementing the adopted MMP, inclusive of all measures applicable to the Corona Station; and WHEREAS, the City of Petaluma, as a responsible agency, has reviewed the SMART EIR and has accepted the analysis and supporting documentation as adequate; and WHEREAS, the City of Petaluma, as a responsible agency, has reviewed the SMART EIR and MMP, and evaluated whether the City's actions to facilitate the Corona Station would result in any new or more severe significant environmental impacts, and none have been identified; and WHEREAS, the City of Petaluma, as a responsible agency, has determined based on the City's Review of the SMART MMP for Corona Station (Exhibit 2) and findings therein, that there have not been any changes to the project or in surrounding circumstances, or that there is any other relevant new information, that warrant subsequent or supplemental environmental review under CEQA Guidelines section 15162; and WHEREAS, the City of Petaluma, as a responsible agency, finds that development of the Corona Station will not result in any unmitigated significant unavoidable impacts on the environment, and that SMART has already adopted and committed to implementing all identified measures needed to mitigate identified impacts from the Corona Station to a less than significant level; 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 Covered Under Certified EIR: Approval of the City/SMART Agreement is not subject to subsequent or supplemental environmental review because the environmental impacts from development and operation of the Corona Station have already been assessed in the SMART EIR and supporting documentation (SCH #2002112033). The City/SMART agreement relates to the provision of funds for the design and construction of the Corona SMART station, which was included in the certified EIR conducted for the SMART Project. No further environmental review is warranted. The Council adopts all CEQA Findings set forth in the attached "City of Petaluma CEQA Review of and CEQA Findings for Corona Station," a copy of which is attached hereto as Exhibit 2. 3. Resolution 2020-056 N.C.S. Rescinded. Resolution 2020-056 N.C.S. adopted May 4, 2020, is hereby rescinded and of no further force or effect. 4. 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 1 is hereby approved. Resolution No. 2020-081 N.C.S. Page 7 5. 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 I, 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. 6. 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"). 7. 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. 8. 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 rd, Council of the City of Petaluma at a Regular meeting on the 1 Si day of June 2020, form: by the following vote: AYES: Healy; Kearney; King; McDonnell; Miller NOES: Mayor Barrett; Vice Mayor Fischer ABSENT: None ABSTAIN: None ATTEST: dZM4—ve— Deputy City Clerk Mayor City Attorney - Resolution No. 2020-081 N.C.S. Page 8 Exhibit 1 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 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 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 , as amended pursuant to the First Amendment dated as of April 28, 2020 ("Developer/SMART Agreement"), provides for the close of escrow on the purchase of the Downtown SMART Property to occur by the earlier of November 19, 2020, or when the City approves the entitlements for the Downtown SMART Property and the appeal period has expired. 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. Resolution No. 2020-081 N.C.S. Page 9 F. On October 12 2019 SMART entered into an agreement to sell SMART's Downtown property to Developer (for 8 million and 1.27 remainder parcel). 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 in order for SMART to request a Change Order and proposal fiom 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 communication. 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 Govennnent 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 Resolution No. 2020-081 N.C.S. Page 10 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. 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 Project. 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 Resolution No. 2020-081 N.C.S. Page 11 Project, it will be allocated to completion of the Corona Station Project and the project will proceed to completion. 3. City Funding 3.1 City Funding. City will deposit $2 million in the escrow for the Developer /SMART agreement at least 2 business days before the close of escrow, so that the close of escrow on the Developer's purchase of the Downtown SMART Property can occur in accordance with Section 9(a) of the Developer/SMART Agreement as amended. 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 introduced an Ordinance approving an amendment to the Depot Lease which ordinance shall receive its second reading and be adopted no later than days after the SMART Board action to approve this Agreement, and such approval takes effect. 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: (t) 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. Resolution No. 2020-081 N.C.S. Page 12 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 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, as amended, 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. Resolution No. 2020-081 N.C.S. Page 13 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: 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 party. 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. Resolution No. 2020-081 N.C.S. Page 14 City of Petaluma By: Peggy Flynn, City Manager Attest: BY: Claire Cooper, City Clerk Approved as to form: By: Eric W. Danly, City Attorney Sonoma Marin Area Rail Transit District By: Farhad Mansourian, General Manager Approved as to form: By: Thomas F. Lyons, District Counsel Resolution No. 2020-081 N.C.S. Page 15