2013/10/08 City Council Resolution 2013-138RESOLUTION NO. 2013 -138
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING THE OFF -SITE PUBLIC IMPROVEMENTS AND
PUBLIC FACILITIES FEE CREDIT AGREEMENT AND TERMINATION AND
SUPERSESSION OF DEFERRED IMPROVEMENT AGREEMENT BY AND
BETWEEN THE CITY OF ROHNERT PARK AND THE SPANOS CORPORATION
FOR THE FIORI ESTATES APARTMENT COMPLEX (APN 143 - 040 -125)
WHEREAS, The Spanos Corporation ( "Spanos ") owns an 11.09 acre parcel of land
generally located on Dowdell Avenue north of Carlson Avenue, as more fully described below
(the "Fiori Estates Property "); and
WHEREAS, the Fiori Estates Property was previously part of a larger tract of land
formerly owned by the City of Rohnert Park ( "City ") and located west of U.S. Highway 101 and
north of the Rohnert Park Expressway in the Stadium Lands Master Plan Area of the City (the
"City Property "); and
WHEREAS, the City Property consisted of Lots 1, 2, 3, and 4 and adjoining streets, as
shown on Parcel Map 180, recorded on December 11, 2009, in Book 736 of Maps, pages 30 -32,
in the Official Records of Sonoma County (the "Parcel Map "); and
WHEREAS, on November 29, 2009, the City executed that certain deferred
improvement agreement which was recorded on December 11, 2009, as Instrument No.
2009119214 in the Official Records of Sonoma County (the "Deferred Improvement
Agreement "), which applied to and provided for the deferred construction of subdivision
improvements for all of the property subject to the Parcel Map — Lots 1, 2, 3 and 4 — without
differentiation as to the work required for each lot; and
WHEREAS, City has conveyed Lots 2, 3, and 4 to Redwood Equities Investments LLC
( "Redwood Equities ") pursuant to that certain Purchase and Sale /Closing Agreement between
City and Redwood Equities (the "Redwood Equities Agreement "); and
WHEREAS, as part of the Redwood Equities Agreement, the City Property was
modified by three lot -line adjustments as more particularly described therein recorded on April 3,
2013, as Instrument Nos. 20130034300 through 20130034303, inclusive, in the Official Records
of Sonoma County; and
WHEREAS, Redwood Equities subsequently conveyed Lot 2 (the "Fiori Estates
Property ") to Spanos, and Spanos has received entitlements from the City to develop thereon a
rental apartment project and to construct the subdivision improvements required of Lot 2; and
WHEREAS, the Fiori Estates Property consists of an 11.09 acre site located on Dowdell
Avenue northerly of Carlson Court identified by Sonoma County Assessor as parcel number
143- 040 -125 and more particularly described on Exhibit A to the Off -Site Public Improvements
and Public Facilities Fee Credit Agreement and Termination and Supersession of Deferred
2013 -138
Improvement Agreement (the "Agreement "), attached hereto as Exhibit A and incorporated
herein by this reference; and
WHEREAS, the Fiori Estates Property is subject to the Deferred Improvement
Agreement which obligates Spanos to design and construct certain improvements for the benefit
of the City and the public as required by Parcel Map No. 180 and the conditions of approval
contained in Subdivision Committee Resolution No. 2009 -20 adopted August 26, 2009, as
further set forth thereon and therein ( "Deferred Improvements "); and
WHEREAS, under the Deferred Improvement Agreement, the obligation to construct the
Deferred Improvements: (i) is undifferentiated between Lots 1, 2, 3, and 4; (ii) runs with Lots 1,
2, 3, and 4 as shown on the Parcel Map; and (iii) constitutes a lien against the Fiori Estates
Property (as well as Lots 1, 3, and 4) in such amount, including interest, as provided in Rohnert
Park Municipal Code section 16.16.070, and subject to foreclosure in the event of a default in
payment; and
WHEREAS, City has approved Spanos's application for a Conditional Use Permit and
Site Plan and Architectural Review (PL2012- 039UP /SR) pursuant to Planning Commission
Resolution No. 2013 -07 (the "Project Approvals ") to develop a 244 -unit apartment project to be
known as the Fiori Estates Apartments (the "Project ") on the Fiori Estates Property; and
WHEREAS, the Project is covered under the Environmental Impact Report prepared for
the Stadium Area Master Plan and identified by State Clearinghouse No. 12005042111; and
WHEREAS, to satisfy the obligations applicable to the Fiori Estates Property under the
Deferred Improvement Agreement and to satisfy the requirement of subdivision improvements
for the Fiori Estates Property, Spanos proposes to design, construct, and install certain off -site
public improvements generally described in Exhibit B to the Agreement (the "Improvements ");
and
WHEREAS, the obligation to construct the Improvements under the Agreement is
intended to supersede and replace any obligations of the Fiori Estates Property under the
Deferred Improvement Agreement and, following execution of the Agreement, the Deferred
Improvement Agreement shall terminate and be of no further force as to the Fiori Estates
Property; and
WHEREAS, Spanos is willing to advance the costs of designing, financing, constructing,
installing, inspecting and bonding for the approved Improvements, subject to facility fee credits
from the City for the portion of the Improvements that would otherwise be covered by the Public
Facilities Fee assessed to the Project pursuant to City's adopted Public Facilities Financing Plan
(RMPC Chapter 3.28 as implemented by Ordinance No. 715 and City Council Resolution No.
2011 -112); and
WHEREAS, the City Council has found that the Agreement is in accordance with the
requirements of Sections 3.28.080 of the Municipal Code and California Government Code
Sections 66000 and following; and
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2013 -138
WHEREAS, the City Council further intends and expressly finds that the Agreement
satisfies the requirements of Section 5.34.040 of the Municipal Code which requires Spanos to
enter into a right -of -way agreement with the City before commencing any construction activities
within the public right -of -way.
NOW, THEREFORE, the City Council of the City of Rohnert Park hereby resolves,
determines, finds, and orders as follows:
SECTION 1. Compliance with CEQA. The City Council finds that the Environmental
Impact Report adopted for the Stadium Area Master Plan (State Clearinghouse No.
12005042111) thoroughly and accurately analyzes the potential impacts associated with the
Project. The City Council concurs with the findings and conclusions of the Planning
Commission and finds that no further environmental review is required under CEQA or the
CEQA Guidelines to approve the Agreement.
SECTION 2. Approval of Agreement. The City Council authorizes and approves that
certain Off -Site Public Improvements and Public Facilities Fee Credit Agreement and
Termination and Supersession of Deferred Improvement between the City of Rohnert Park and
The Spanos Corporation(the "Agreement "), attached hereto as Exhibit A ( "Lease Agreement ");
and
SECTION 3. Execution. The City Manager is hereby authorized and directed to execute
the Agreement in substantially similar form to the attached Exhibit "A" and to take all actions
necessary to effectuate the Agreement for and on behalf of the City of Rohnert, subject to
approval by the City Attorney.
SECTION 4. Authorized Signature. The Mayor, or presiding officer, is hereby
authorized to affix his or her signature to this Resolution signifying its adoption, and the City
Clerk, or her duly appointed deputy, is directed to attest thereto.
DULY AND REGULARLY ADOPTED by the City Council of the City of Rohnert
Park this 8"' day of October 2013
ATTEST: /}
Jb�Nnne Buergler, City Cldfk ,
Attachment: Agreement
5
CITY OF ROHNERT PARK
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2013 -138
Exhibit "A"
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928 -2486
Attention: City Clerk
OFF -SITE PUBLIC IMPROVEMENTS AND PUBLIC FACILITIES FEE CREDIT AGREEMENT
AND TERMINATION AND SUPERSESSION OF DEFERRED IMPROVEMENT AGREEMENT
CITY OF ROHNERT PARK PUBLIC FACILITIES
SPANOS CORPORATION FOR
FIORI ESTATES APARTMENT COMPLEX
This Off -Site Public Improvements and Public Facilities Fee Credit Agreement and
Termination and Supersession of Deferred Improvement (the "Agreement ") is made and entered
into on this � day of Nry,,,, 2013 ( "Effective Date "), by and between the City of
Rohnert Park, a California m nicipal corporation ( "City "), and The Spanos Corporation, a
California corporation ( "Developer "). City and Developer are sometimes referred to hereinafter
individually as "Party" and collectively as "Parties."
RECITALS
A. City previously owned certain real property located west of U.S. Highway 101
and north of the Rohnert Park Expressway in the Stadium Lands Master Plan Area of the City
(the "City Property "). The City Property consisted of Lots 1, 2, 3, and 4 and adjoining streets, as
shown on Parcel Map 180, recorded on December 11, 2009, in Book 736 of Maps, pages 30-
32, in the Official Records of Sonoma County (the "Parcel Map ").
B. On November 29, 2009, the City executed that certain deferred improvement
agreement which was recorded on December 11, 2009, as Instrument No. 2009119214 in the
Official Records of Sonoma County (the "Deferred Improvement Agreement "), which applied to
and provided for the deferred construction of subdivision improvements for all of the property
subject to the Parcel Map — Lots 1, 2, 3 and 4 — without differentiation as to the work required
for each lot.
OAK 44851- 0144 -4627 v10
C. City has conveyed Lots 2, 3, and 4 to Redwood Equities Investments LLC
( "Redwood Equities ") pursuant to that certain Purchase and Sale /Closing Agreement between
City and Redwood Equities (the "Redwood Equities Agreement "). As part of the Redwood
Equities Agreement, the City Property was modified by three lot -line adjustments as more
particularly described therein. These lot -line adjustments were recorded on April 3, 2013, as
Instrument Nos. 20130034300 through 20130034303, inclusive, in the Official Records of
Sonoma County.
D. Redwood Equities has subsequently conveyed Lot 2 (the "Fiori Estates
Property ") to Developer, and Developer has received entitlements from the City to develop
thereon a rental apartment project and to construct the subdivision improvements required of
Lot 2.
E. The Fiori Estates Property consists of an 11.09 acre site located on Dowdell
Avenue northerly of Carlson Court identified by Sonoma County Assessor as parcel number
143 - 040 -125 and more particularly described on Exhibit A, attached hereto and incorporated
herein by this reference.
F. The Fiori Estates Property is subject to the Deferred Improvement Agreement
which obligates Developer to design and construct certain improvements for the benefit of the
City and the public as required by Parcel Map No. 180 and the conditions of approval contained
in Subdivision Committee Resolution No. 2009 -20 adopted August 26, 2009, as further set forth
thereon and therein ( "Deferred Improvements "). Under the Deferred Improvement Agreement,
the obligation to construct the Deferred Improvements: is undifferentiated between Lots 1, 2, 3,
and 4; runs with Lots 1, 2, 3, and 4 as shown on the Parcel Map; and constitutes a lien against
the Fiori Estates Property (as well as Lots 1, 3, and 4) in such amount, including interest, as
provided in Rohnert Park Municipal Code section 16.16.070, and subject to foreclosure in the
event of a default in payment.
G. City has approved Developer's application for a Conditional Use Permit and Site
Plan and Architectural Review (PL2012- 039UP /SR) pursuant to Planning Commission
Resolution No. 2013 -07 (the "Project Approvals ") to develop a 244 -unit apartment project to be
known as the Fiori Estates Apartments (the "Project ") on the Fiori Estates Property.
H. To satisfy the obligations applicable to the Fiori Estates Property under the
Deferred Improvement Agreement and to satisfy the requirement of subdivision improvements
for the Fiori Estates Property, Developer proposes to design, construct, and install certain off -
site public improvements generally described in Exhibit B attached hereto (the "Improvements ").
Developer shall complete plans for the Improvements and shall submit those plans to City for its
review and approval pursuant to Chapter 16.16 of the Rohnert Park Municipal Code ( "Municipal
Code "). As used in said Chapter 16.16, the term "Subdivider" shall mean the same as
"Developer" in this Agreement. No Building Permit shall be approved for the development of the
Fiori Estates Property until the Developer either completes the Improvements or enters into this
Agreement and bonds for said Improvements. The obligation to construct the Improvements
under this Agreement shall supersede and replace any obligations of the Fiori Estates Property
under the Deferred Improvement Agreement and following execution of this Agreement, the
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discovered by City. Upon completion of all things to be done hereunder and the expiration of
the one (1) year period, City shall release the Warranty Bond and provide evidence of
completion of all things required of Developer under this Agreement.
4.10. Erosion Control. Pursuant to Rohnert Park Municipal Code Chapters
13.64 (Storm Water Discharge) and 15.52 (Erosion and Sediment Control), Developer shall be
responsible for the control of erosion on the Fiori Estates Property and shall prevent its entry
into the storm drainage system.
4.11. Encroachment Permits. Developer shall obtain, at its sole cost and
expense, any encroachment permits required by the City in order to construct the Improvements
in accordance with the provisions of Rohnert Park Municipal Code Chapter 12.04.
4.12. Record Drawings. Upon completion of the Improvements and prior to
final acceptance by the City Council, Developer shall deliver to City one electronic file, in a
format specified by the City Engineer, and one mylar copy of "as- built" drawings. These
drawings shall be in a form acceptable to the City Engineer, shall be certified by an engineer
licensed by the State of California as to accuracy and completeness, and shall reflect the
Improvements as actually constructed, with any and all changes incorporated therein.
Developer shall be solely responsible and liable for ensuring the completeness and accuracy of
the record drawings.
4.13. Ownership of Improvements. From and after acceptance of the
Improvements by formal action of the City Council, ownership of the Improvements shall be
vested exclusively in City.
4.14. Prevailing Wages. The work of the Improvements constitutes a "public
work" as defined in the California Labor Code, section 1771, et seq ( "Labor Code Regulations ").
Developer agrees and acknowledges that the construction of the Improvements is subject to the
payment of prevailing wages and agrees to comply with the requirements of the Labor Code
Regulations. Further, Developer agrees to defend, indemnify and hold City, its elected officials,
officers, employees, and agents free and harmless from any and all claims, damages, suits or
actions arising out of or incident to Developer's obligations under this section.
4.15. Contractor Licenses. All work performed on the Improvements shall be
done only by contractors licensed in the State of California and qualified to perform the type of
work required and comply with the City's Business License Ordinance.
5. Public Facilities Fee Credit.
5.1. Eligible Improvements. The Improvements eligible to receive the Public
Facilities Fee Credit described in this Section 5 is the extension and widening of Dowdell
Avenue along the Fiori Estates Property frontage more particularly described in Paragraph 1 of
Exhibit B. If the alternative obligations of the Fiori Estates Property for the construction,
implementation and financing of on -site or off -site subdivision improvements pursuant to the
Deferred Improvement Agreement that are described in Paragraph 2 of Exhibit B are triggered,
OAK 44851 -0144 -4627 v10
(8) Developer and Developer's insurance company agree to waive all rights of
subrogation against City, its officers, elected officials, employees, agents and
volunteers for losses paid under Developer's workers' compensation insurance
policy which arise from the work performed by Developer.
In the event that Developer's insurance is cancelled, Developer shall provide replacement
coverage or all work must cease as of the cancellation date until replacement insurance
coverage is provided.
8.3. Workers' Compensation Insurance. Developer shall provide, or cause to
be provided, Workers' Compensation insurance as required by law, and shall cause its
contractors and their subcontractors, agents and representatives to also maintain Workers'
Compensation insurance as required by law. No Work shall commence until such Workers'
Compensation insurance is obtained and in full force and effect.
8.4. Other Insurance Requirements. Developer shall:
(1) Prior to taking any actions under this Agreement, furnish City with properly
executed certificates of insurance which shall clearly evidence all insurance
required in this section and provide that such insurance shall not be canceled,
allowed to expire or be materially reduced in coverage except on thirty (30) days
prior written notice to City.
(2) Provide to City certified copies of endorsements and policies if requested by City,
and properly executed certificates of insurance evidencing the insurance required
herein.
(3) Replace or require the replacement of certificates, policies and endorsements for
any insurance required herein expiring prior to completion and acceptance of the
Improvements.
(4) Maintain all insurance required herein from the time of execution of this
Agreement until the acceptance of the Improvements.
(5) Place all insurance required herein with insurers licensed to do business in
California
9. Breach of Agreement; Opportunity to Cure; Remedies.
9.1. 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 the Improvements within the time set forth
herein or abandons the Improvements or the Project.
(2) Developer assigns this Agreement without the prior written consent of City.
(3) 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.
(4) Developer or Developer's contractors, subcontractors, agents or employees, fail
to comply with any terms or conditions of this Agreement.
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(5) Any delay in the construction of any portion of the Improvements or repairs,
which in the reasonable opinion of the City Engineer, endangers public or private
property.
(6) Any delay in the construction of any portion of the Improvements or repairs,
which in the reasonable opinion of the City Engineer, will cause Developer to fail
to complete the Improvements within the time set forth herein.
City may serve written notice of breach and default upon Developer and the financial institution
holding the bonds. Said notice shall specify the particulars of such breach and default and shall
set forth a reasonable period of time for Developer and /or the surety to cure said breach and
default to the satisfaction of City.
9.2. Breach of Agreement: Failure to Cures Performance by City. If City gives
Developer notice under Section 8.1 of breach and default of this Agreement, and such breach
and default continues for thirty (30) days after written notice thereof from City to Developer, or if
such default is of a nature that curing such default will take more than thirty (30) days Developer
has failed to commence such cure within such thirty (30) day period and to thereafter diligently
pursue completion of such cure, City may proceed to complete the Improvements by contract or
other method City considers advisable, at the sole expense of Developer. Developer,
immediately upon demand, shall pay the costs and charges related to the Improvements and
any subsequent repairs. City, without liability for doing so, may take possession of and utilize in
completing the Improvements and repairs, if any, such materials and other property belonging to
Developer as may be on or about the Fiori Estates Property and necessary for completion of the
work. In the event of default, the financial institution holding the bonds shall be liable to City to
pay the face amount of the bonds, as specified under Section 6.
9.3. Remedies. City may bring legal action to compel performance of this
Agreement and recover the costs of completing the Improvements and /or repairs, if any,
including City's administrative and legal costs. Developer agrees that if legal action is brought
by City under this section of the Agreement, Developer shall pay all of the costs of suit,
reasonable attorney fees, arbitration costs and such other costs as may be determined by the
court or arbitrator. 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.
10. Miscellaneous,
10.1. Compliance with Applicable Laws. Developer shall insure that all work
performed on the Improvements is performed in a manner which fully complies with all
applicable federal, state, county and local government laws, regulations and rules, including all
rules and regulations of City, as these rules and regulations may be modified or changed from
time to time.
10.2. 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
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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 Manager
City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
With Copy To: City Attorney
City of Rohnert Park
1901 Harrison St., Suite 900
Oakland, CA 94612 -3582
DEVELOPER: The Spanos Corporation
100 Trinity Parkway, 5th Floor
Stockton, CA 95219 -7238
Attention: Tom Allen
With Copy To: Marc Hardy, Esq.
General Counsel
The Spanos Corporation
100 Trinity Parkway, 5th Floor
Stockton, CA 95219 -7238
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.
10.3. Termination. In the event that Developer defaults in the performance of
any of its obligations under this Agreement, or materially breaches any of the provisions of this
Agreement, City shall have the option to terminate this Agreement upon written notice to
Developer. In the event of such termination, Developer shall provide City with detailed
statements to track the actual costs in constructing the Improvements to the date of termination
and the actual amount spent shall be determined by City ( "Actual Cost "). In the event that any
fee credits granted exceed the Actual Cost, Developer shall repay the City any amount owed
within ten (10) business days of notice by the City. If any portion of said amount remains unpaid
after ten (10) business days from City's written demand for same, Developer expressly
acknowledges and agrees that such amount may be placed upon the Fiori Estates Property as
a lien and special assessment. The assessment shall continue until it is paid, together with
interest at the legal maximum rate computed from the date of confirmation of the statement until
payment. The assessment shall be collected at the same time and in the same manner as
ordinary municipal taxes are collected, and shall be subject to the same penalties and
procedure and sale in case of delinquency as is provided for ordinary municipal taxes. All laws
applicable to the levy, collection and enforcement of municipal taxes shall be applicable to the
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special assessment. In addition, City may use any other available legal means to collect the
unpaid amount and the choice of one remedy does not affect City's ability to use alternative
remedies
10.4. Attorney's Fees. In the event any action is commenced to enforce or
interpret any term or condition of this Agreement by either Party, the prevailing Party shall be
entitled to all costs of suit, including reasonable attorney's fees, arbitration costs, and such other
costs as may be determined by the court or arbitrator.
10.5. Entire Agreement. This Agreement constitutes the final and exclusive
understanding and agreement of the Parties and supersedes all prior negotiations or previous
agreements, written or oral, with respect to the subject matter hereof. This Agreement may not
be altered, amended, or modified except as provided in Section 9.10.
10.6. Agreement Runs with the Land. This Agreement shall be recorded in the
Official Records of Sonoma County and shall constitute covenants running with the Fiori
Estates Property, and shall be binding upon successors, heirs, and assigns.
10.7. Assignment. This Agreement shall not be assigned by either Party without
the prior written consent of the other Party, and any assignment without such written consent
shall be void and ineffective. The written notice shall become effective within thirty (30) days
upon delivery to City, provided that City shall not be responsible for any misdirected written
notices under this section.
10.8. Time of Essence. Time is of the essence for this Agreement and each
and every term and condition hereof.
10.9. Severability. If any term or provision of this Agreement, or the application
of any term or provision of this Agreement to a particular situation, is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remaining terms and provisions
of this Agreement, or the application of this Agreement to other situations, shall continue in full
force and effect unless amended or modified by mutual consent of the Parties.
10.10. 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,
10.11. Relationship of the Parties. The Parties do not intend by this Agreement
to create any agency, partnership, joint venture, trust, or other relationship with duties or
incidents different from those of parties to an arm's - length transaction. Developer's relationship
to 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.
10.12. Bindinq on Successors /Assigns; No Third -Party Beneficiaries. This
Agreement is binding upon and inures to the benefit of the respective successors and assigns of
the Parties. No other person has any rights, interests, or claims hereunder, or is entitled to any
benefits under or on account of this Agreement as a third -party beneficiary. City does not
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assume any liability, duty, or obligation to Developer's contractors, subcontractors, or agents by
execution or performance of this Agreement, and not contractors, subcontractors, or agents of
either Party are third -parry beneficiaries of this Agreement.
10.13. 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.
10.14. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original.
10.15. 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 identify of the party preparing or drafting the Agreement, or any part thereof,
shall apply to the interpretation of this Agreement.
10.16. 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.
10.17. 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, the parties hereto have executed this Agreement as of the
date first above written.
CITY:
CITY OF ROHNERT PARK,
a municipal corporation
Gabriel A. Gonzalez, City Manager
APPROVED AS TO FORM:
Michelle Marchetta Kenyon, City Attorney
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OAK 44851- 0144 -4627 v10
ATTEST:
JoAnne Buergler, City Clerk
DEVELOPER:
THE SPANOS CORPORATION,
A California orporation
r
By:
Name: L. Co
Title: E7M0us, 1
By: _
Name:
Title:
Need to Insert:
EXHIBIT A — LEGAL DESCRIPTION OF PROPERTY
EXHIBIT B — DESCRIPTION OF PUBLIC IMPROVEMENTS
EXHIBIT C — COST ESTIMATE FOR PUBLIC IMPROVEMENTS
EXHIBIT D — COSTS TO BE CREDITED AGAINST PF FEE
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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 Manager
City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
With Copy To: City Attorney
City of Rohnert Park
1901 Harrison St., Suite 900
Oakland, CA 94612 -3582
DEVELOPER: The Spanos Corporation
100 Trinity Parkway, 5th Floor
Stockton, CA 95219 -7238
Attention: Tom Allen
With Copy To: Marc Hardy, Esq.
General Counsel
The Spanos Corporation
100 Trinity Parkway, 5th Floor
Stockton, CA 95219 -7238
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.
10.3. Termination. In the event that Developer defaults in the performance of
any of its obligations under this Agreement, or materially breaches any of the provisions of this
Agreement, City shall have the option to terminate this Agreement upon written notice to
Developer. In the event of such termination, Developer shall provide City with detailed
statements to track the actual costs in constructing the Improvements to the date of termination
and the actual amount spent shall be determined by City ( "Actual Cost "). In the event that any
fee credits granted exceed the Actual Cost, Developer shall repay the City any amount owed
within ten (10) business days of notice by the City. If any portion of said amount remains unpaid
after ten (10) business days from City's written demand for same, Developer expressly
acknowledges and agrees that such amount may be placed upon the Fiori Estates Property as
a lien and special assessment. The assessment shall continue until it is paid, together with
interest at the legal maximum rate computed from the date of confirmation of the statement until
payment. The assessment shall be collected at the same time and in the same manner as
ordinary municipal taxes are collected, and shall be subject to the same penalties and
procedure and sale in case of delinquency as is provided for ordinary municipal taxes. All laws
applicable to the levy, collection and enforcement of municipal taxes shall be applicable to the
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special assessment. In addition, City may use any other available legal means to collect the
unpaid amount and the choice of one remedy does not affect City's ability to use alternative
remedies
10.4. Attorney's Fees. In the event any action is commenced to enforce or
interpret any term or condition of this Agreement by either Party, the prevailing Party shall be
entitled to all costs of suit, including reasonable attorney's fees, arbitration costs, and such other
costs as may be determined by the court or arbitrator.
10.5. Entire Agreement. This Agreement constitutes the final and exclusive
understanding and agreement of the Parties and supersedes all prior negotiations or previous
agreements, written or oral, with respect to the subject matter hereof. This Agreement may not
be altered, amended, or modified except as provided in Section 9.10.
10.6. Agreement Runs with the Land. This Agreement shall be recorded in the
Official Records of Sonoma County and shall constitute covenants running with the Fiori
Estates Property, and shall be binding upon successors, heirs, and assigns.
10.7. Assignment. This Agreement shall not be assigned by either Party without
the prior written consent of the other Party, and any assignment without such written consent
shall be void and ineffective. The written notice shall become effective within thirty (30) days
upon delivery to City, provided that City shall not be responsible for any misdirected written
notices under this section.
10.8. Time of Essence. Time is of the essence for this Agreement and each
and every term and condition hereof.
10.9. Severability. If any term or provision of this Agreement, or the application
of any term or provision of this Agreement to a particular situation, is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remaining terms and provisions
of this Agreement, or the application of this Agreement to other situations, shall continue in full
force and effect unless amended or modified by mutual consent of the Parties.
10.10. 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.
10.11. Relationship of the Parties. The Parties do not intend by this Agreement
to create any agency, partnership, joint venture, trust, or other relationship with duties or
incidents different from those of parties to an arm's - length transaction. Developer's relationship
to 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.
10.12. Binding on Successors /Assigns; No Third -Party Beneficiaries. This
Agreement is binding upon and inures to the benefit of the respective successors and assigns of
the Parties. No other person has any rights, interests, or claims hereunder, or is entitled to any
benefits under or on account of this Agreement as a third -party beneficiary. City does not
15
OAK #4851 -0144 -4627 v10
assume any liability, duty, or obligation to Developer's contractors, subcontractors, or agents by
execution or performance of this Agreement, and not contractors, subcontractors, or agents of
either Party are third -parry beneficiaries of this Agreement.
10.13. 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.
10.14. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original.
10.15. 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 identify of the party preparing or drafting the Agreement, or any part thereof,
shall apply to the interpretation of this Agreement.
10.16. 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.
10.17. 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, the parties hereto have executed this Agreement as of the
date first above written.
CITY,
CITY OF ROHNERT PARK,
a municipal corporation
Gabriel A. Gonzalez, City Manager
APPROVED AS TO FORM:
Michelle Marchetta Kenyon, City Attorney
16
OAK 44851- 0144 -4627 v10
ATTEST:
JoAnne Buergler, City Clerk
DEVELOPER:
THE SPANOS CORPORATION,
A Californi9 rporation
Bv.
Name: L. COINva
Title:
By:
Name:
Title:
Need to Insert:
EXHIBIT A — LEGAL DESCRIPTION OF PROPERTY
EXHIBIT B — DESCRIPTION OF PUBLIC IMPROVEMENTS
EXHIBIT C — COST ESTIMATE FOR PUBLIC IMPROVEMENTS
EXHIBIT D — COSTS TO BE CREDITED AGAINST PF FEE
17
OAK #4851 -0144 -4627 v10
STATE OF CALIFORNIA )
ss,
COUNTY OF )
On 2013 before me, Notary Public,
personally appeared who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the same in his /her /their
authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the
foregoing paragraph is true and correct.
Witness my hand and official seal,
Notary Public
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On 2013 before me, , Notary Public,
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the same in his /her /their
authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the
foregoing paragraph is true and correct.
Witness my hand and official seal.
Notary Public
18
OAK #4851 -0144 -4627 v10
STATE OF CALIFORNIA )
ss,
COUNTY OF )
On , 2013 before me, , Notary Public,
personally appeared , who proved to me on the
basis of satisfactory evidence to be the persons) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the same in his /her /their
authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the
foregoing paragraph is true and correct.
Witness my hand and official seal.
Notary Public
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On , 2013 before me, , Notary Public,
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the same in his /her /their
authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the
foregoing paragraph is true and correct.
Witness my hand and official seal.
Notary Public
19
OAK #4851- 0144 -4627 v10
STATE OF CALIFORNIA )
ss.
COUNTY OF
On 3'J 2013 before me, �``'"v1 , Notary Public,
personally appeared 9 g -v 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.
20
OAK #4851 -0144 -4627 vlo
EXHIBIT A
LEGAL DESCRIPTION OF FIORI ESTATES PROPERTY
Lot 2 as shown on City of Rohnert Park Parcel Map No. 180, filed for record in Book 736 of
maps, pages 30 through 32, Sonoma County Records.
Together with that portion conveyed to City of Rohnert Park, a municipal corporation by Lot Line
Adjustment Grant Deed, recorded March 3, 2013 as Serial Number 20130034300, Sonoma
County Records, more particularly described as follows:
Lying within the State of California, County of Sonoma, City of Rohnert Park and being a portion
of the lands of Cotati - Rohnert Park Unified School District as described by Deed recorded under
Document Number 1988- 070085 Official Records of Sonoma County, said portion being
described as follows:
BEGINNING at the northwest corner of said lands of Cotati - Rohnert Park Unified School
District, said corner also being the southwest corner of Lot 2 as shown on Parcel Map No. 180
filed in Book 736 of Maps, Pages 30 through 32, Sonoma County Records; thence along the
common line of said lands of Cotati - Rohnert Park Unified School District and Lot 2, North 89 043'
10" East 28.88 feet; thence leaving said common line, South 00 °16'50" East 20.00 feet; thence
parallel with said common line, South 89 043' 10" West 26.11 feet to the easterly right of way line
of Labath Avenue; thence along a non - tangent curve concave southwesterly of which the radius
point bears South 640 13 `28" West with a radius of 280.00 feet; through a central angle of
01017'17", for an arc length of 6.29 feet to the point of intersection with the westerly line said
lands of Cotati - Rohnert Park Unified School District; thence leaving said easterly right of way
line, along said westerly line, North 00 016'50" West 14.35 feet to the POINT OF BEGINNING.
Excepting therefrom that portion conveyed to Cotati- Rohnert Park Unified School District, a
public entity by Lot Line Adjustment Grant Deed executed by City of Rohnert Park, a municipal
corporation recorded April 3, 2013 as Instrument 2013 34302 of Official Records, containing
2,366 square feet more or less.
Also Excepting therefrom that portion conveyed to Rural California Broadcasting Corporation, a
California non - profit public benefit corporation by Lot Line Adjustment Grant Deed executed by
the City of Rohnert Park, a municipal corporation recorded April 3, 2013 as Instrument 2013
34303 of Official Records, containing 1,324 square feet more or less.
Containing 11.09 acres more or less
End of Legal Description
21
OAK #4851- 0144 -4627 V10
EXHIBIT B
DESCRIPTION OF IMPROVEMENTS
Improvements to be Credited Towards Public Facilities Finance Plan Fee
1.1 Extension of Dowdell Avenue — South Segment
Developer shall design, construct, and install the extension of Dowdell Avenue from the
Martin Avenue Extension on the south to the extension of the northerly property line of
Lot 2 as shown on City Rohnert Park Parcel Map No. 180, filed for record in Book 736 of
maps, pages 30 through 32, Sonoma County Records, State of California, on the north,
including all utilities and appurtenances of Public Street in compliance with City Manual
of Standards, Details and Specifications, subject to City Engineer approval (the "South
Segment').
Deadline: The South Segment must be completed prior to the issuance of certificates of
occupancy for any of the Project apartment units.
1.2 Extension of Dowdell Avenue — North Segment
Developer shall design, construct, and install the extension of Dowdell Avenue from the
northerly property line of Lot 2 as shown on City Rohnert Park Parcel Map No. 180, filed
for record in Book 736 of maps, pages 30 through 32, Sonoma County Records, State of
California, on the south to Business Park Drive on the north, including all utilities and
appurtenances of Public Street in compliance with City Manual of Standards, Details and
Specifications, subject to City Engineer approval (the "North Segment ").
Deadline: The North Segment or the alternative improvements to Carlson Avenue
described in Paragraph 2, below must be constructed prior to the issuance of certificate
of occupancy for the 200'" and all further apartment units for the Project. In the event
that Developer is unable to construct the North Segment, for reasons beyond the control
of Developer, Developer shall construct the alternative improvements to Carlson Avenue
described in Paragraph 2, below.
2. Alternative Access Improvements: Subdivision Improvements Associated with Parcel
Map No. 180 and required pursuant to the Deferred Improvements Agreement
2.1 Extension of Carlson Avenue
If Developer constructs the North Segment as provided above, Developer shall have no
obligation to construct the alternative improvements to Carlson Avenue described in this
Paragraph 2. If, however, Developer, for reasons beyond its control, is unable to
construct the North Segment as described in Paragraph 1, above, Developer shall
design, construct, and install the following improvements pursuant to the Deferred
22
OAK #4851- 0144 -4627 v10
Improvement Agreement and as shown on the Stadium Lands Tentative Parcel Map on
file with the City, Planning file number PL2007- 029TPM, more particularly described as
follows;
a. A portion of Carlson Ave. consisting of the north side curb, gutter, sidewalk and
24 -feet of roadway from the existing easterly end of existing curb, gutter and
sidewalk to Dowdell Ave, approximately 240 -feet. Including a sidewalk access
ramp on the existing west side of the KRCB access driveway.
b. Widen the existing portion of Carlson Ave, approximately 5 -feet, to provide 24-
feet of paved roadway, approximately 250 -feet length.
C. A 12 -inch water main within Carlson Ave. from Dowdell Ave. to connect with an
existing water main within Carlson Ave., approximately 240 -feet.
d. Grading and drainage along the south side of Carlson Ave. to direct runoff to
appropriate storm drain facilities.
e. All in conformance with City Manual of Standards, Municipal Codes and State
laws and subject to City Engineer approval
23
OAK #4851 -0144 -4627 v10
EXHIBIT C
COST ESTIMATE FOR PUBLIC IMPROVEMENTS
(ATTACH ESTIMATED COST OF PUBLIC IMPROVEMENTS)
24
OAK #4851 -0144 -4627 v10
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COSTS TO BE CREDITED AGAINST PUBLIC FACILITIES FINANCING FEE
FOR THE FIORI ESTATES APARTMENTS PROJECT
(ATTACH LIST OF PUBLIC FACILITIES FINANCING FEES CREDIT)
25
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