2014/04/22 City Council Ordinance 878ORDINANCE NO. 878
AN ORDINANCE OF THE CITY OF ROHNERT PARK, CALIFORNIA APPROVING
A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF ROHNERT PARK AND
VAST OAK PROPERTIES L.P. AND UNIVERSITY DISTRICT LLC FOR
DEVELOPMENT OF THE PROPERTY LOCATED SOUTH OF KEISER AVENUE,
WEST OF PETALUMA HILL ROAD, AND NORTH OF ROHNERT PARK
EXPRESSWAY (APN 045 - 262 -001 THROUGH -004, 047 - 131 -019, AND 047 -131 -024 AND
-025) AND THE PROPERTY LOCATED SOUTH OF ROHNERT PARK
EXPRESSWAY, EAST OF J SECTION, AND NORTH OF COPELAND CREEK (APN
047 -131 -026 AND 047 -131 -027)
WHEREAS, Government Code § 65864, et seq., authorizes the City of Rohnert Park to
enter into development agreements which will provide certainty, definition and commitment to
developers as well as to necessary public improvements required by development;
WHEREAS, University District LLC ( "Developer ") submitted applications to the City
of Rohnert Park for a General Plan Amendment, Specific Plan revision, Tentative Map,
Tentative Parcel Map, Development Agreement, and related applications and approval of an
Addendum to the Final Environmental Impact Report ( "EIR ") in connection with the proposed
University District Specific Plan ( "UDSP ") Project located south of Keiser Avenue, west of
Petaluma Hill Road, and north of Copeland Creek (APNs 045- 253 -007, 045- 253 -009 through -
012, 045- 253 -018, 045- 262 -001 through -004, 047 -131 -019, and 047 -131 -024 through -027 (the
"Project "), in accordance with the City of Rohnert Park Municipal Code ( "RPMC "); and
WHEREAS, the proposed applications would allow development of the Property, which
includes 1,645 residential units, approximately 100,000 square feet of mixed use /commercial
space, and approximately 19.78 acres of park space, 15.67 acres of land designated
public /institutional, and approximately 53.87 acres of open space (the "Project "); and
WHEREAS, in connection with the Project, Developer and City staff have negotiated a
proposed development agreement ( "Development Agreement ") in accordance with the
requirements of Government Code § 65864, et seq., and Chapter 17.21, "Development
Agreement Procedure," of the Rohnert Park Municipal Code ( "RPMC "), for the Property. The
Development Agreement negotiated by Developer and the City is attached to this Resolution as
Exhibit A; and
WHEREAS, the Development Agreement, among other things, sets forth the effective
date and term of the agreement; applicable fees; applicable rules, regulations and policies;
required infrastructure improvements; affordable housing obligations; prevailing wage rules;
provisions on amendments, annual review and default; and other miscellaneous provisions; and
WHEREAS, on March 13, 2014, the Planning Commission held a public hearing at
which time the Planning Commission reviewed the Development Agreement prepared for the
Project and recommended approval by the City Council; and
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WHEREAS, the City Council reviewed and approved the Addendum to the Final EIR
prepared for the Project in accordance with CEQA; and has otherwise carried out all
requirements for the Project pursuant to CEQA;
WHEREAS, pursuant to California State Law and the RPMC, public hearing notices
were mailed to all property owners within an area exceeding a three hundred foot radius of the
subject property and a public hearing was published for a minimum of 10 days prior to the first
public hearing in the Community Voice.
WHEREAS, on April 8, 2014, the City Council held a public hearing at which time
interested persons had an opportunity to testify either in support or opposition to the proposed
Development Agreement; and
WHEREAS, the City Council has given consideration to other pending application and
approved projects; the traffic, parking, public service, visual, and other impacts of the proposed
development project upon abutting properties and the surrounding area; ability of the applicant to
fulfill public facilities financing plan obligations; the relationship of the project to the City's
growth management program; the provisions for reservation, dedication or improvement of land
for public purposes or accessible to the public; the type and magnitude of the project's economic
effects to the City and of its contribution toward meeting the City's housing needs; and to any
other comparable, relevant factor; and
WHEREAS, on the City Council has reviewed and considered the information contained
in proposed Development Agreement; and
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Rohnert
Park does ordain as follows:
SECTION 1. Findings. The City Council, in reviewing Planning Application Nos.
PL2012- 044SP, PL2013- 009TM, and PL2012- 047TPM Development Agreement for University
District Specific Plan, hereby makes the following findings pursuant to Government code section
65867.5:
1. The proposed Development Agreement was considered at a public hearing
Criteria Satisfied. A duly noticed public hearing regarding the Development
Agreement was held by the City Council on April 8, 2014, in conformance with
the notice provisions of Government Code §§ 65090 and 65091 and the
requirements of the RPMC section 17.21.030.
2. The provisions of the proposed Development Agreement are consistent with the
general plan and any applicable specific plan
Criteria Satisfied. The applicant has proposed amendments to the General Plan
and related land use entitlements for the Project which the Planning Commission
has concurrently reviewed and considered in conjunction with its review of the
Development Agreement. These amendments to the Land Use Element of the
General Plan incorporate the land use areas of the applicable University District
Specific Plan. The proposed Development Agreement is consistent with the
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General Plan, as amended, and would direct the Project's development in an
orderly manner that benefits the City.
The provisions of the Development Agreement require that development comply
with the revised University District Specific Plan (Plan). The Plan proposes to
meet the goals of General Plan by providing for a variety of housing types
including low density, medium density, rural estate and mixed use allowing
residential housing. The Plan also provides for affordable housing to meet the
needs of lower income households.
In addition to providing a wide range of housing types that would be consistent
with housing goals and objectives of the General Plan, the provisions of the
Development Agreement incorporate, implement and are subject to requirements
of both the General Plan and University District Specific Plan by including an
approximately 7 acre community park, an approximately 6 acre passive park, two
detention basins, and a mixed use area with a minimum 100,000 square feet of
commercial building area. The proposed parkland acreage meets the City's
requirements for parkland dedication. The community park amenities would
include a playground, picnic area, ball field and soccer fields, turf play fields,
pathways, lighting, and more. The passive park will include natural areas, a dog
park and tot lot. Commercial land uses are proposed to encompass business,
office, retail shops, residences, and will include area for public uses.
3. The provisions of the proposed Development Agreement are consistent with
Government Code 65867.5(C).
Criteria Satisfied. The Development Agreement satisfies the requirements of
Government Code 65867.5(C) that requires that a sufficient water supply be
available for subdivisions which meet the definition of "subdivision" in
Government Code 66473.7(a)(1) within the Project, as required by Government
Code section 66473.7(b)(1). The Project has been evaluated against the Water
Supply Assessment prepared for the 2006 Project and the City has concluded that
the Project is consistent with the prior analysis and sufficient water supply is
available for this project.
SECTION 2. Approval of Development Agreement. The City hereby approves the
Development Agreement in substantially similar form as attached hereto and incorporated herein
as Exhibit A.
SECTION 3. Compliance with the California Environmental Quality Act. The City
Council approved of the Final EIR Addendum for the Project (including Development
Agreement), as described in City Council Resolution No. 2014 -032, approved on April 8, 2014
concurrently with the City Council's approval of this Resolution.
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SECTION 4. Compliance with State Law.
A. The City will act in accordance with the provisions of Government Code §§
65856(e) and 66006.
B. In accordance with Government Code §§ 65868.5, no later than 10 days after the
City enters into the Development Agreement, the City Clerk will record the Development
Agreement with the County Recorder.
C. In accordance with Government Code §§ 65865.1 and RPMC Section
17.21.050(A), the City will conduct an annual review of the Development Agreement to ensure
compliance with the terns.
SECTION 5. Severability. The City Council hereby declares that every section,
paragraph, sentence, clause and phrase is severable. If any section, paragraph, sentence, clause
or phrase of this article 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.
SECTION 6. Effective Date. This ordinance shall be in full force and effective 30 days
after its adoption, and shall be published and posted as required by law.
This ordinance was introduced by the Council of the City of Rohnert Park on April 8, 2014, and
adopted April 22, 2014, by the following roll call vote:
AYES: Four (4) Council member Belforte, Mackenzie, Stafford and Mayor Callinan
NOES: None (0)
ABSENT: One (1) Vice Mayor Ahanotu
ABSTAIN: None (0)
CITY OF ROH
PARK
Joseph R. Callinan, Mayor
ATTEST:
`n R
y City ,lerk
878
et °a Ke'yon, City Attorney
EXHIBIT A
DEVLOPMENT AGREEMENT
SEE EXHIBIT 6 ATTACHED TO THE STAFF REPORT
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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928 -2486
Attention: City Clerk
Space Above This Line Reserved for Recorder's Use
Exempt from Recording Fee Per Government Code Section 27383
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
BY AND AMONG
THE CITY OF ROHNERT PARK
AND
UNIVERSITY DISTRICT LLC
AND
VAST OAK PROPERTIES L.P.
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS............
Section 1.01 Definitions...... ..... ...............................
ARTICLE 2. EFFECTIVE DATE AND TERM
Page
Section 2.01 Effective Date .:.:,..:..12
Section2.02 Term.... .............. ....... . ..... ..... .... . .. .... . ...12
Section 2.03 Project Integration ....... .. ,.13
Section 2.04 Developer Representations and Warranties ...,. ....,, . 44,1,.,44,!,-.44 “0■13
ARTICLE 3. DEVELOPMENT OF PROPERTY ........................................... ...........;.:..;.........;.,14
Section 3.01 Vested Rights .................
Section 3.02 Applicable Law ,......:>,.... .,....> >..... .........:::....:
Section 3.03 Development Timing .... ............ ....... ....... ................,........,,...,
Section3.04 Intentionally Omitted ... ......... ........> ..,.,.........,... ......... .::..._.....;......:.........15
Section 3.05 Issuance of Building Permits In Accordance with City's Growth
Management Program 15
Section 3.06 Reservations of Authority. 16
Section 3.07 Regulation by Other Public Agencies 17
Section3.08 Life of Project Approvals______„--- ..... ................. ...,............,: ....,,...> 17
Section 3.09 Vesting Tentative Maps ................... ........................,. ..........> ,..... ,.....;,.;.17
Section 3.10 Developer's Right to Rebuild ..................... .. .. .... .17
Section 3.11 No Conflicting City Enactments ......................
Section 3.12 Initiatives and Referenda ........................... .... ..., .18
Section 3.13 Environmental Mitigation. ...., .... .. ,. ,.. • ..... 19
Section 3.14 Subdivision Maps ..................
Section 3.15 State and Federal Law... ..... ...........•..... 20
,;14
. .15
ARTICLE 4. FINANCING AND PUBLIC IMPROVEMENTS ,.......
20
Section 4.01 Taxes, Assessments, Fees and Exactions... ..,..... ... ..... ... .......... ,,.....,. .......;...20
Section 4.02 Regional Traffic Improvement Fee ,.. ..22
Section 4.03 Public Facilities Financing Plan ....... :.. ........:.:.,.::.:,...,,, .....23 ■
Section 4.04 Community Facilities District ................... .... ..................,............ .......,,..25
Section 4.05 Assessment Districts .. ............................... ....... ....... ......::.....y...... ......:....29
Section d 06 Maintenance Annuity ..............30
Section 4.07 Financing Mechanisms for Private Improvements . .., .... ,;31
Section 4.08 Pedestrian Bridges and Paths 32
Section 4.09 Roadway Improvements ....... ............................... . .. ... 32
Section 4.10 City Dedication and Acquisition Parcels ............. , .. •. 33
Section 4.11 Funding and Construction of Sewer Improvements ........:........ ...........;,36
Section 4.12 Park Improvements........... ..... ........... .....,... ......... ,.....,...........>38
Section4.13 Entrance Monuments .......................... ,........ . .,....... ... .............,.,.38
Section 4.14 Detention Basin . .38
Section 4.15 Acquisition of Land Owned by Third Parties...... •.40
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TABLE OF CONTENTS
(continued)
P age
Section 4.16 Reimbursement of Specific Plan Costs ................................ ................:,,.,....,,,.40
Section 4.17 City's Option to Complete Off -Site Public Improvements .40
ARTICLE 5. DEVELOPMENT STANDARDS and REQUIREMENTS 41
Section 5.01 Compliance with State and Federal Law 41
Section 5.02 Prevailing Wage Requirements 41
Section 5.03 Green Building and Smart Growth 42
Section 5.04 Intentionally Omitted 42
Section 5.05 Intentionally Omitted. ...................... 4.. _ . . . . .. . .... ... . . ....,42
Section 5.06 Sales Tax Point of Sale Designation__ , 42
Section 5.07 Affordable Housing Plan .........................
Section 5.08 Intentionally Omitted . ............................,..
Section 5.09 Mixed -Use Commercial Center ................
......................43
...................43
43
ARTICLE 6. MORTGAGEE PROTECTION..., ,.., ........,, ...... ...,,........43
Section 6.01
Section 6.02
Section 6.03
Mortgagee Protection ................ ..
Mortgagee Not Obligated .. <,......,. >.
Notice of Default to Mortgagee
7. COOPERATION AND IMPLEMENTATION,,,...,..
......... .............................43
44
44
Section 7.01 Subsequent Project Approvals .44
Section 7.02 Processing Applications for Subsequent Project Approvals.........._, ... ...........45
Section 7.03 Administration of Subsequent Project Approvals ................ .........,.,.....,..... ,..46
Section 7.04 Changes and Amendments to Project Approvals 47
Section 7.05 Other Government Permits 48
Section 7.06 Mitigation Measures 48
Section 7.07 Cooperation in the Event of Legal Challenge 48
ARTICLE 8. ASSIGNMENT, TRANSFER AND NOTICE 49
Section 8.01 Assignment .49
Section8.02 Right to Assign...................................................,,........,.,... ......,......<.,.......,.....49
Section8.03 Release of Transferring Developer ...................... ...A,,,.... ,, .,....,...,,......,.,.,....,.50
ARTICLE 9. DEFAULT; REMEDIES; TERMINATION ..,... ....................... .............................51
Section 9.01 Breach 51
Section 9.02 Default ,,...,... >,..,.,....52
Section 9.03 Withholding of Permits 52
Section 9.04 Remedies 52
Section 9.05 Periodic Review ..................53
Section 9.06 Enforced Delay; Extension of Time of Performance.......... .
Section 9.07 Resolution of Disputes ............................................... .... >..,,,...,..........,...,., ....55
Section 9.08 Surviving Provisions 55
Section 9.09 Indemnity and Hold Harmless 55
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TABLE OF CONTENTS
(continued)
Page
ARTICLE 10. MISCELLANEOUS PROVISIONS ....... .............................55
Section 10.01 Incorporation of Recitals and Introductory Paragraph ........ .............................55
Section 10.02 Findings 56
Section 10.03 Severability 56
Section 10.04 Construction. .. ....... ........... ........ ........,.................. 56
Section 10.05 Joint and Several Obligations 56
Section 10.06 Covenants Running with the Land 56
Section 10.07 Notices 57
Section 10.08 Entire Agreement, Counterparts and Exhibits 58
Section 10.09 Recordation of Amended and Restated Agreement 58
Section 10.10 No Joint Venture or Partnership 58
Section10.11 Waivers ..................................... ............................... ,.59
Section 10.12 California Law 59
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LIST OF EXHIBITS:
Revised Exhibit A
Exhibit B -1
Exhibit B -2
Revised Exhibit C
Exhibit C -1
Revised Exhibit D
Revised Exhibit E
Exhibit F
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Site Map and Phasing Plan
Legal Description of UD LLC Property
Legal Description of Vast Oak Property
Dedications, Improvements and Facilities Schedule
UDLLC and Vast Oak PFFP Funding Obligations and Projections
Affordable Housing Plan
Water Tank Site Legal Description
Crane Creek Trail Easement Area
- iv -
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
THE UNIVERSITY DISTRICT DEVELOPMENT AGREEMENT ( "2006
Development Agreement ") was entered into as of the 11th _ day of _July_ 2006, by
and among UNIVERSITY DISTRICT LLC, a Delaware limited liability company
( "UD "), VAST OAK PROPERTIES L.P., a California limited partnership ( "VO "), and
the CITY OF ROHNERT PARK, a California municipal corporation ( "City "). UD and
VO are sometimes collectively referred to herein as "Developer," and City and
Developer are sometimes referred to herein as a "Party" and collectively as "Parties."
This Amended and Restated Development Agreement ( "Amended and Restated
Agreement ") is entered into as of the day of 2014, by and among UD, VO
and the City.
RECITALS
A. To strengthen the public planning process, encourage private participation
in comprehensive planning and reduce the economic risk of development, the Legislature
of the State of California enacted California Government Code § 65864 et seq.
( "Development Agreement Statute"), which authorizes City to enter into an agreement
with any person having a legal or equitable interest in real property regarding the
development of such property.
B. Pursuant to California Government Code §65865, City has adopted
procedures and requirements for the consideration of development agreements (City
Municipal Code Chapter 17.21). This Amended and Restated Agreement has been
processed, considered and executed in accordance with such procedures and
requirements.
C. UD is the fee owner of that certain real property consisting of
approximately 34.34 acres within unincorporated Sonoma County which was annexed by
City, and is depicted on the Site Map attached hereto as Revised Exhibit A, and legally
described in Exhibit B -1 attached hereto ( "UD LLC Property ").
D. VO is the fee owner of that certain real property consisting of
approximately 226.58 acres within unincorporated Sonoma County which was annexed
by City, located directly across from the UD LLC Property on the north side of Rohnert
Park Expressway, and is depicted on the Site Map attached hereto as Exhibit A, and
legally described in Exhibit B -2 attached hereto ( "Vast Oak Property "). The UD LLC
Property and Vast Oak Property are collectively referred to herein as the "Property."
E. Developer proposes to develop on the Property a fully physically
integrated, mixed -use, pedestrian oriented community providing diverse residential
opportunities as well as a commercial center with a privately owned public plaza, parks,
open space, other public amenities and infrastructure, including on- and off -site public
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improvements ( "Project "), in the manner described in City's 2000 General Plan, as
amended through the Effective Date ( "General Plan ") and the University District
Specific Plan ( "Specific Plan "), and in compliance with City's Public Facilities Finance
Plan, as it may be amended from time to time ( "PFFP "). The Project is comprised of
five sub - areas, each of which is described in the Specific Plan and shown on the Site Map
attached as the amended Exhibit A, and more particularly described in Section 1.01
below: UDLLC, Vast Oak West, Vast Oak Central, Vast Oak East and Vast Oak North
(collectively, the "Project Components ").
F. Prior to approval of this Amended and Restated Agreement, City has taken
numerous actions in connection with the development of the Project on the Property.
These include the adoption of all of the following:
City Council Resolutions — Adopted May 23, 2006
Resolution 2006 -141 -
Resolution 2006 -142 -
Resolution 2006 -143
Resolution 2006 -144
Resolution 2006 -145
Resolution 2006 -146
Resolution 2006 -147
Resolution 2006 -148
Final Environmental Impact Report
Amendments to Land Use Map & Text of the General Plan
- Specific Plan and Design Guideline Documents
- Tentative Map (UDLLC)
- Tentative Map (Vast Oak)
- Development Area Plan for UDLLC
- Development Area Plan for Vast Oak Properties
- Application to Sonoma LAFCO for Reorganization
City Council Ordinances - Adopted July 25, 2006
•
•
•
Ordinance No. 759 — Prezoning UDSP property to Specific Plan District (SP).
Ordinance No. 760 — Prezoning property to Public /Institutional District (P -I)
Ordinance No. 761 — Development Agreement
(Collectively, the "Original Project Approvals"). In conjunction with the approval of
this Amended and Restated Agreement there are amended project approvals consisting of
the 2014 General Plan Amendments, 2014 Specific Plan Amendments, the 2014
rezoning, the 2014 tentative maps and the 2014 design guidelines as further identified
below:
1. Environmental Impact Report and Addendum. The
environmental impacts of the Project, including the Existing Project Approvals and
alternatives to the Project and its location, have properly been reviewed and assessed by
City pursuant to the California Environmental Quality Act, California Public Resources
Code Section 21000 et seq.; California Code of Regulations Title 14, Section 15000
et seq. ( "CEQA Guidelines "); and City's local guidelines promulgated thereunder
(hereinafter collectively referred to as "CEQA "). On May 23 , 2006, pursuant to
CEQA and in accordance with the recommendation of City's Planning Commission (the
"Planning Commission "), the City Council of City ( "City Council ") certified a Final
Environmental Impact Report for the Specific Plan ( "EIR "). As required by CEQA, City
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adopted written findings and a Mitigation Monitoring and Reporting Program ( "MMRP ")
on May 23 , 2006, pursuant to Resolution No. , On , 2014,
pursuant to CEQA and in accordance with the Planning Commission's recommendation,
the City Council adopted an addendum to the Final EIR for the Specific Plan
( "Addendum ").
2. General Plan Amendment. On , 2014,
in accordance with the recommendation of the Planning Commission, the City Council
adopted Resolution , amending the General Plan.
3. Specific Plan Amendment /Rezoning. On
2014, in accordance with the recommendation of the Planning
Commission, the City Council adopted Ordinance No. approving the Specific Plan,
which covers the entirety of the Property as well as certain additional parcels located
adjacent to the Vast Oak Property as shown in the Specific Plan. The Specific Plan also
constituted rezoning for the Property and the Additional Parcels in accordance with City
Municipal Code.
4, Tentative Maas and Design Guidelines.
, 2014, in accordance with the recommendation of the Planning
Commission, the City Council approved a Tentative Map for the UD LLC Property ( "UD
Tentative Map ") and a Tentative Map for the Vast Oak Property ( "VO Tentative Map "),
and amended the University District Design Guidelines for the Project.
The approvals and development policies described in this Recital F(1) are
collectively referred to herein as the "Existing Project Approvals."
G. Subsequent to approval of this Amended and Restated Agreement, City
anticipates that applications for additional land use approvals, entitlements, and permits
will be submitted to implement and operate the Project (the "Subsequent Project
Approvals ").
H. This Amended and Restated Agreement furthers the public health, safety
and general welfare in that the provisions of this Amended and Restated Agreement are
consistent with the General Plan, as amended, and the Specific Plan. For the reasons
recited herein, City and Developer have further determined that the Project is a
development for which this Amended and Restated Agreement is appropriate. This
Amended and Restated Agreement will eliminate uncertainty regarding Existing Project
Approvals and Subsequent Project Approvals, thereby encouraging planning for,
investment in and commitment to use and development of the Property. Continued use
and development of the Property in accordance with this Amended and Restated
Agreement is anticipated to, in turn, provide the following substantial benefits and
contribute to the provision of needed infrastructure for area growth, thereby achieving the
goals and purposes for which the Development Amended and Restated Agreement
Statute was enacted:
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1. Provide for the orderly development of the Property and the
surrounding community,
2. Contribute to the balanced land -use base anticipated by the
General Plan and provide an effective connection between City and Sonoma State
University.
3. Provide for (1) the construction of a minimum number of
Affordable Units which in no event shall exceed 15% of the total number of market rate
residential units and Affordable Units within the Project as provided for in the Affordable
Housing Plan attached as Revised Exhibit D; or (2) in the event that the City adopts any
other affordable or inclusionary housing ordinance, including an in -lieu fee that would
apply to the Project, Developer may, in its sole discretion, comply with any future adopted
form of affordable or inclusionary housing ordinance.
4. Provide infrastructure improvements that will benefit the
Property and the surrounding community.
5. Provide needed market -rate housing to help meet current
local housing demand as well as anticipated future demand for housing.
6. Provide open space, parks and recreational improvements
and amenities that will benefit future property owners and the surrounding community.
7. Provide approximately 100,000 gross square feet of
commercial, retail, office space, public facilities space and associated on -site parking.
8. Ensure, through required funding of the Maintenance
Annuity (as defined below) and payment of fees as required by the PFFP ( "PFFP Fees "),
that the residential component of the Project does not negatively impact City's ability to
provide for and fund necessary capital improvements and services and that the Project
meets General Plan Growth Management and Open Space goals and policies, including
GM -F, GM -H, GM -9, GM -13, OS -H, EC -10 and HO -3.
I. The Parties intend through this Amended and Restated Agreement to
allow the Developer to develop and operate the Project in accordance with the Existing
Project Approvals and the Applicable Law (as defined below), and that any Subsequent
Project Approvals and the imposition of any new impact fees, other fees, or monetary and
non- monetary exactions should be governed by the terms of this Amended and Restated
Agreement.
J. As provided in this Amended and Restated Agreement, the Parties intend
to work in good faith to establish a community facilities district ( "CFD ") pursuant to the
Mello -Roos Community Facilities Act of 1982 (Government Code sections 53311 et
seq.) ( "Mello -Roos Act ") over and including the Property capable of levying special
taxes in the CFD under the Mello -Roos Act to finance, directly and /or by issuance of
special tax bonds, the construction and /or acquisition of certain Public Benefit Facilities
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needed in connection with the Project and as identified in Section 4.04.B. The financing
of such items through a Mello -Roos Community Facilities District fulfills the express
legislative goals of the Development Agreement Statute: it strengthens the public
planning process by linking development rights to financing of public facilities; it
encourages participation by private landowners in the comprehensive planning required
by Mello -Roos financing; it reduces economic risk and costs of development by
spreading the costs of needed facilities over time and among subsequent purchasers; and
it allows Developer, in exchange for voluntary participation in Mello -Roos financing, to
proceed with development in accordance with existing City policies, rules and
regulations. The parties acknowledge that the availability of long -term, tax - exempt bond
financing under the Mello -Roos Act is critical to the financial success of the Project, and
that without the ability to obtain such financing for the Public Benefit Facilities, either
through the City, the California Statewide Communities Development Authority
(CSCDA) or other public agencies and districts, Developer will not be able to proceed
with the Project described in this Amended and Restated Agreement.
K. As provided in this Amended and Restated Agreement, the Parties intend
to provide for City Council, and /or other agencies and Developer to cooperate in the levy
of Special Taxes within the boundaries of the CFD, and the sale of bonds by the CFD to
finance the Public Benefit Facilities. Unless the context otherwise requires, references to
"City" or "Other Agencies" in connection with any actions under the Mello -Roos Act
shall include the CFD as legally constituted by City (alone or jointly with any other local
agency, including any school district in which the Project is located).
L. The City Council has found that this Amended and Restated Agreement is
consistent with the General Plan, as amended pursuant to Resolution , and the
Specific Plan and the UDSP EIR and Addendum, and has conducted all necessary
proceedings in accordance with the City's rules and regulations for the approval of this
Amended and Restated Agreement.
M. On July 11 , 2006, the City Council, at a duly noticed public
hearing, adopted Ordinance No. _761 , approving and authorizing the execution of
the 2006 Development Amended and Restated Agreement. On , 2014, the
City Council, at a duly noticed public hearing, adopted Ordinance No. , approving
and authorizing the execution of this Amended and Restated Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises, covenants and provisions
set forth herein, the receipt and adequacy of which is hereby acknowledged, the parties
agree as fellows:
ARTICLE 1. DEFINITIONS
Section 1.01 Definitions.
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7.04,
"Additional Parcels" shall have the meaning set forth in Section 3.05.
"Adjustment Date" shall have the meaning set forth in Section 4.06.
"Administrative Project Amendment" shall have the meaning set forth in Section
"Advanced Costs" shall have the meaning set forth in Section 4.04.
"Affiliated Party" shall have the meaning set forth in Section 8.02.
"Affordable Apartment" shall mean one of the individual apartments to be
constructed within the Affordable Apartment Complex and rented to a Low Income
Household or Very Low Income Household at an Affordable Rent.
"Affordable Apartment Complex" shall mean the affordable apartments to be
constructed on the Vast Oak North Property in accordance with the Revised Affordable
Housing Plan and plans and specifications approved by the City. Such Affordable
Apartment Complex shall consist of approximately 218 rental units so long as a total of
1,454 market rate residential and Affordable Units are approved within the Project.
Should a lesser number of total Project units be approved, Developer shall construct an
affordable apartment complex that will meet the minimum 15% affordable requirement.
"Affordable Housing Ordinance" or "AHO" shall mean Rohnert Park Municipal
Code Section 17.07.020 N and any valid modification or any valid successor ordinance.
"Revised Affordable Housing Plan" shall have the meaning set forth in Section
5.07.
"Affordable Rent" shall mean (1) monthly rent that does not exceed 30 percent of
80 percent of Median Income for a Low Income Household, less a reasonable allowance
for utilities, and (2) monthly rent that does not exceed 30 percent of 50 percent of Median
Income for a Very Low Income Household, less a reasonable allowance for utilities.
Affordable Rent shall be based on presumed occupancy levels of one person in a studio
unit, two persons in a one - bedroom unit, three persons in a two - bedroom unit, and one
additional person for each additional bedroom thereafter.
"Affordable Units" shall mean the units to be rented as set forth in the Affordable
Housing Plan.
"Amended and Restated Agreement" shall have the meaning set forth in the
introductory paragraph preceding the Recitals between the City, VO and UDLLC, as
revised and restated in this Amended and Restated Agreement adopted by Ordinance No.
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"Annual Household Income" shall mean the combined gross income of all adult
persons living in the Affordable Unit, as calculated for the purpose of the Section 8
program under the United States Housing Act of 1937, as amended, or its successor.
"Apartment Sites" shall mean the parcels designated on the VO Tentative Map on
which the apartments will be constructed.
"Applicable Law" shall have the meaning set forth in Section 3.02.
"Architect Fees" shall have the meaning set forth in Section 4.01.
"Assignee" shall have the meaning set forth in Section 8.02.
"CC&Rs" shall have the meaning set forth in Section 5.09.
"CEQA" shall have the meaning set forth in Recital F.
"CEQA Guidelines" shall have the meaning set forth in Recital F.
"CFD" shall have the meaning set forth in Recital J.
"CFD Bonds" shall have the meaning set forth in Section 4.04.
"Changes in the Law" shall have the meaning set forth in Section 3.15.
"City" shall have the meaning set forth in the introductory paragraph preceding
the Recitals.
"City Council" shall have the meaning set forth in Recital F.
"City Law" shall have the meaning set forth in Section 3.11.
"City Manager" means the City Manager of the City.
"Commercial Center" means the commercial /retail mixed use development
consisting of approximately 100,000 gross square feet of retail, commercial (including
hotel uses), office and public facilities, and ancillary on -site public and private
improvements, including the plaza area, as depicted on the Site Map and as further
described in the Specific Plan. The public facilities contemplated in the Commercial
Center shall include a 2,000 square foot dedicated commercial space for exclusive use by
City or its designee including but not limited to, uses for promotional venue, tenant space
for lease, or City offices "Dedicated City Facilities ". The Dedicated City Facilities shall
be free of rent including no costs for CAM's, maintenance (immediate and deferred) and
repairs for the life of the center. This property interest shall be for the life of the center,
run with the land and shall be a recorded covenant on the Property.
The construction timing of the Commercial Center will be solely determined by
the Developer based upon market conditions, [except that timing of utilities, building
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pads and other infrastructure shall be completed in conjunction with completion of the
Rohnert Park Expressway north improvements. The Commercial Center is also referred
to as the, "Mixed Use — Commercial Center."
"Community Development Director" means the Community Development
Director of the City or Development Services Director or other City Manager designee.
"Consultant Fees" shall have the meaning set forth in Section 4.01.
"Consumer Price Index" shall have the meaning set forth in Section 4.06.
"Copeland Creek Detention Basin" shall have the meaning set forth in the PFFP
and further described in Section 4.13.
"Crane Creek Trail Easement Area" means the trail easement area depicted and
described in Exhibit F attached hereto.
"Cultural Arts Commission" means the City of Rohnert Park Cultural Arts
Commission.
"Cure Period" shall have the meaning set forth in Section 9.01.
"Default" shall have the meaning set forth in Section 9.02.
"Developer" means UD and VO, jointly and severally.
"Development Agreement Statute" shall have the meaning set forth in Recital A.
"Effective Date" shall have the meaning set forth in Section 2.01.
"EIR" shall have the meaning set forth in Recital F.
"Eligible Cost" shall have the meaning set forth in Section 4.03.
"Exhibit C" shall mean Revised Exhibit C, attached hereto and incorporated
herein by reference.
"Exhibit C -1" shall mean Exhibit C -1, attached hereto and incorporated herein by
reference.
"Existing Project Approvals" shall have the meaning set forth in Recital F.
"Extended Cure Period" shall have the meaning set forth in Section 9.01.
"Extended Term" shall have the meaning set forth in Section 2.03B.
"Federal /State Compliance Fees" shall have the meaning set forth in Section
4.01.
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"Funding Mechanism" shall have the meaning set forth in Section 4.05.
"General Plan" shall have the meaning set forth in Recital E.
"Growth Management Program" shall have the meaning set forth in Section
3.05.
"Household" means one person living alone or two or more persons sharing
residency.
"Initial Term" shall have the meaning set forth in Section 2.02.
, "Low Income Household" means a Household with an Annual Household Income
of up to 80 percent of Median Income.
"Maintenance Annuity" shall have the meaning set forth in Section 4.06.
"Median Income" means the median income, adjusted for family size, applicable
to Sonoma County as published annually pursuant to Title 25 of the California Code of
Regulations, Section 6932 (or its successor provision) by the United States Department of
Housing and Urban Development ( "HUD "). In the event that such income
determinations are no longer published or are not updated for a period of at least 18
months by HUD, Median Income shall mean the area -wide median gross income for
households in Sonoma County, adjusted for family size, as published from time to time
by the California Department of Housing and Community Development ( "HCD "). In the
event that such income determinations are no longer published, or not updated for a
period of at least 18 months, the City shall provide Developer with other income
determinations which are reasonably similar with respect to methods of calculation to
those previously published by HUD or HCD.
"Mello -Roos Act" shall have the meaning set forth in Recital J.
"Moderate Income Household" means a Household with an Annual Household
Income of up to 120 percent of Median Income.
"Mitigation Fee Act" shall have the meaning set forth in Section 4.02.
"MMRP" shall have the meaning set forth in Recital F.
"Mortgage" shall have the meaning set forth in Section 6.01.
"Mortgagee" shall have the meaning set forth in Section 6.01,
"New Initial Term" shall have that meaning set forth in Section 2.03A.
"Non- administrative Project Amendment" shall have the meaning set forth in
Section 7.04.
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"Official Policy" shall mean a policy that is approved in accordance with the
City's normal practice for adopting policies, that is in writing, and that was adopted prior
to the Effective Date of this Amended and Restated Agreement or that is subsequently
approved by the City Council and consistent with federal, state and local laws.
"Other Local Agency Compliance Fees" shall have the meaning set forth in
Section 3.11.
"Owner- Occupied Monthly Housing Payment" means the sum equal to the
principal, interest, property taxes, homeowner's insurance and homeowner's association
dues paid on an annual basis divided by 12.
"Party/Parties" shall have the meaning set forth in the introductory paragraph
preceding the Recitals of this Amended and Restated Agreement.
"Permanent UDLLC Detention Basin" shall have the meaning set forth in Section
4.14.E.
"PFFP" shall have the meaning set forth in Recital E.
"PFFP Fees" shall have the meaning set forth in Recital H.
"Planning Commission" shall have the meaning set forth in Recital F.
"Prevailing Wage Laws" shall have the meaning set forth in Section 5.02.
"Processing Fees" shall have the meaning set forth in Section 4.01.
"Project" shall have the meaning set forth in Recital E.
"Project Approvals" shall have the meaning set forth in Section 3.01.
"Project Components" shall have the meaning set forth in Recital E.
"Property" shall have the meaning set forth in Recital D.
"Public Benefit Facilities" shall have the meaning set forth in Section 4.04.
"Regional Traffic Fee" shall have the meaning set forth in Section 4.02.
"S/CS" shall have the meaning set forth in Section 5.09.
"Site Map" means the map of the Property depicting the various Project
Components attached hereto as Exhibit A.
"Special Tax" shall have the meaning set forth in Section 4.04.
"Specific Plan" shall have the meaning set forth in Recital E.
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"Specific Plan Processing Costs" shall have the meaning set forth in Section
4.14.
"Subdivision Map Act" shall have the meaning set forth in Section 3.09.
"Subsequent Project Approvals" shall have the meaning set forth in Recital G.
"Subsequent Discretionary Approvals" shall have the meaning set forth in
Section 7.01.
"Subsequent Ministerial Approvals" shall have the meaning set forth in Section
7.01.
"Temporary UDLLC Detention Basin" shall have the meaning set forth in Section
4.14.B.
"Tentative Map" shall have the meaning set forth in Recital F.
"Term" shall have the meaning set forth in Section 2.03.
"Third Party Developers" shall have the meaning set forth in Section 4.01.
"Twin Creeks Park" means the improved public park area located on the Vast
Oak Property, as depicted on the Site Map and as further described in the Specific Plan.
"UD" means University District LLC, a Delaware limited liability company, and
its permitted successors and assigns.
"UD LLC Property" shall have the meaning set forth in Recital C.
"UD Tentative Map" shall have the meaning set forth in Recital F.
"University District Specific Plan Development Standards and Design
Guidelines" means those development standards and design guidelines included in the
University District Specific Plan dated , 2014 and approved by the
City on
"Vast Oak Property" shall have the meaning set forth in Recital D.
"Very Low Income Household" means a Household with an Annual Household
Income of up to 50 percent of Median Income.
"VO" means Vast Oak Properties L.P., a California limited partnership, and its
permitted successors and assigns.
"VO Central" means that Project Component located on the Vast Oak Property as
shown in Exhibit A.
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"VO East" means that Project Component located on the Vast Oak Property as
shown in Exhibit A.
"VO North" means that Project Component located on the Vast Oak Property as
shown in Exhibit A.
"VO West" means that Project Component located on the Vast Oak Property as
shown in Exhibit A.
"VO Tentative Map" shall have the meaning set forth in Recital F.
"Water /Sewer Fees" shall have the meaning set forth in Section 4.01.
"Water Tank Property" shall have the meaning set forth in Section 4.10.
"Water Tank Site" means the approximately 53.0 acre property described in
Revised Exhibit E attached hereto.
ARTICLE 2. EFFECTIVE DATE AND TERM
Section 2.01 Effective Date. This Amended and Restated Agreement shall
become effective upon the date that the ordinance approving this Amended and Restated
Agreement becomes effective ( "Effective Date ").
Section 2.02 Term.
A. Term. The tenn of this Amended and Restated Agreement shall
commence upon the Effective Date and shall extend for a period of ten (10) years
thereafter ( "New Initial Term"). The New Initial Tenn has been established by the
Parties as a reasonable estimate of the time required to develop the Project, including all
on- and off -site public improvements, and obtain the public benefits of the Project.
B. Extended Term. Provided neither City nor Developer has
terminated this Amended and Restated Agreement, City and Developer agree that it may
be mutually desirable for the New Initial Term to be extended. Accordingly, Developer
may request in writing that City extend the New Initial Term of this Amended and
Restated Agreement for up to two (2) additional five (5) year periods ( "Extended
Term"). Such written request may be delivered to City not earlier than two hundred
seventy (270) days or later than one hundred twenty (120) days prior to the termination
date of the New Initial Term, or prior to the termination date of the first Extended Term
whichever is applicable.
C. City Review of Request for Extended Tenn. Upon receipt of such
request, City shall undertake a review of Developer's good faith compliance with the
terms of this Amended and Restated Agreement in the same manner as set forth in
Section 9.05 for a periodic review of this Amended and Restated Agreement. Developer
and City shall comply with the provisions of Section 9.05 with respect to such review so
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that it can be completed prior to the expiration of the New Initial Term. City may deny,
condition or shorten the time of Developer's request for the Extended Term if, following
such review, the City Council of City deterinines, in the exercise of its legislative
discretion, any of the following: (i) Developer is in default under this Amended and
Restated Agreement or any event has occurred which with the passage of time or giving
of notice or both would constitute a default by Developer hereunder; (ii) Developer has
not satisfactorily completed development of Twin Creeks Park and the Rohnert Park
Expressway, Keiser Avenue and Bridge Connector Road improvements as provided in
Section 4.09; (iii) Developer has failed to complete construction of and obtain
certificates of occupancy for the Commercial Center in accordance with Section 5.09 of
this Amended and Restated Agreement, and complied with Affordable Complex
requirements as set forth in Exhibit D; (iv) Developer has not fully satisfied all other
material requirements and conditions of the Existing, Project Approvals; or (iv) any
delinquent unpaid property taxes or assessments, including any delinquent installment
payments supporting land - secured bonds, are payable with respect to the Property. If the
New Initial Term or Extended Term of this Amended and Restated Agreement is granted
in accordance with the provisions of this Section 2.03, City shall record an instrument
giving notice of the Extended Term and the termination date thereof.
D. Termination Following Expiration. Following the expiration of the
Term, or the earlier completion of development of the Project and all of Developer's
obligations in connection therewith, this Amended and Restated Agreement shall be
deemed terminated and of no further force and effect, subject, however, to the provisions
of Section 9.08 hereof.
Section 2.03 Project Integration. The parties intend that the UD LLC Property
and Vast Oak Property be developed as a single, integrated Project. Accordingly, this
Amended and Restated Agreement includes requirements for integrated, phased
development of the various Project Components, together with the Affordable Units and
the on- and off -site public improvements throughout the Project and imposes limitations
on the number of building permits and certificates of occupancy that will be issued to UD
and VO, respectively, prior to the completion of the Affordable Units and the completion
of and dedication to City of various on- and off -site public improvements. UD and VO
each acknowledges and agrees that (a) the Affordable Units and the on- and off -site
public improvements to be constructed in connection with the Project are intended to
serve and benefit both the UD LLC Property and the Vast Oak Property, , (b) the
Affordable Units and on- and off -site public improvements are vital and integral
components of the overall Project, and (c) Developer's obligations with respect to
phasing of the Affordable Units and on- and off -site public improvements are material
consideration for the agreements of City hereunder.
Section 2.04 Developer Representations and Warranties. UD represents and
warrants to City that, as of the Effective Date, UD is the sole fee owner of the UD LLC
Property, and that no other person or entity holds any legal or equitable interests in the
UD LLC Property. VO represents and warrants to City that, as of the Effective Date,
Vast Oak is the sole fee owner of the Vast Oak Property, and that no other person or
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entity holds any legal or equitable interests in the Vast Oak Property. UD and VO and
their respective managing members each further represent and warrant that:
A. As of the Effective Date, UD and VO: (i) are each duly organized
and validly existing under the laws of the State of Delaware; (ii) have each qualified and
been authorized to do business in the State of California and have duly complied with all
requirements pertaining thereto; (iii) are each in good standing and have all necessary
powers under the laws of the State of California to own property and in all other respects
enter into and perform the undertakings and obligations of Developer under this
Amended and Restated Agreement; and (iv) are not in default with respect to payment of
any general or special property taxes or assessments or other property based fees
allocable to the Property.
B. No approvals or consents of any persons are necessary for the
execution, delivery or performance of this Amended and Restated Agreement by UD and
VO and their respective managing members, except as have been obtained;
C. The execution and delivery of this Amended and Restated
Agreement and the performance of the obligations of UD and VO hereunder have been
duly authorized by all necessary limited liability company action and all necessary
member approvals have been obtained; and
D. This Amended and Restated Agreement is a valid obligation of UD
and VO and is enforceable in accordance with its terms.
ARTICLE 3. DEVELOPMENT OF PROPERTY
Section 3.01 Vested Rights. The Property is hereby made subject to the
provisions of this Amended and Restated Agreement. All development of or on the
Property, or any portion thereof, shall be undertaken only in compliance with the Existing
Project Approvals, Subsequent Project Approvals, Applicable Law and the provisions of
this Amended and Restated Agreement. Developer shall have a vested right to develop
the Property in accordance with the Existing Project Approvals, the Subsequent Project
Approvals, Applicable Law and this Amended and Restated Agreement. The Project
shall be subject to all Subsequent Project Approvals (which, upon final approval, shall be
deemed part of the Existing Project Approvals hereunder). The Existing Project
Approvals and the Subsequent Project Approvals are sometimes hereinafter referred to as
the "Project Approvals ".
Section 3.02 Applicable Law. The rules, regulations, official policies, standards
and specifications applicable to the development of the Property shall be those set forth in
the Project Approvals and this Amended and Restated Agreement, and, with respect to
matters not addressed by these documents, those laws, rules, regulations, official policies,
standards and specifications (including City ordinances and resolutions) as set forth
below, to the extent not inconsistent with the Project Approvals, governing permitted
uses, building locations, timing of construction, densities, design, heights, fees, and
exactions in force and effect on the Effective Date ( "Applicable Law ").
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Section 3.03 Development Timing. The Parties acknowledge that Developer
cannot at this time predict when or the rate at which the phases of the Project will be
developed or the order in which each phase will be developed. Such decisions depend
upon numerous factors which are not within the control of Developer, such as market
orientation and demand, interest rates, absorption, completion and other similar factors.
In particular, and not in any limitation of any of the foregoing, since the California
Supreme Court held in Pardee Construction Co. v. The City of Camarillo, 37 Cal.3d 465
(1984), that the failure of the parties therein to consider and expressly provide for the
timing of development resulted in a later- adopted initiative restricting the timing of
development prevailing over such parties' agreement, it is the Parties' desire to avoid that
result by acknowledging that Developer shall have the vested right to develop the Project,
in such order and at such rate and at such times as Developer deems appropriate in the
exercise of its business judgment, subject to the terms, requirements and conditions of the
Existing Approvals and this Amended and Restated Agreement. Developer will use its
best efforts, in accordance with its own business judgment and taking into consideration
market conditions and other economic factors influencing Developer's business decision,
to commence or to continue development, and to develop the Project in a regular,
progressive and timely manner in accordance with the provisions and conditions of this
Amended and Restated Agreement and the Existing Approvals.
Section 3.04 Intentionally Omitted.
Section 3.05 Issuance of Building Petniits In Accordance with City's Growth
Management Program. Developer acknowledges the legality and validity of, covenants
not to challenge, and agrees to comply with the provisions of City's Growth Management
Program (City Municipal Code section 17.19 et seq.), which regulates and limits the
number of market rate residential building permits that City may issue each year. In
accordance with such program and subject to the limitations of this Section 3.05,
Developer shall be issued up to three hundred fifty (350) building permits for market rate
units each calendar year during the New Initial Term; provided, however, the total
allocation of building permits for market rate units within the Project shall not exceed a
cumulative total of one thousand four hundred fifty -four (1,454) permits minus the
permits issued for the number of affordable units planned for pursuant to the Revised
Affordable Housing Plan. Building permits which are not used during the calendar year
in which they are issued may be used in any subsequent calendar year during the Term of
this Amended and Restated Agreement. Developer shall submit application to City and
pay all applicable fees then due prior to issuance of any such building permits other than
the Maintenance Annuity which shall be paid in accordance with Section 4.06 B.. The
building permits allocated annually to Developer shall be used exclusively in connection
with development of the Project on the Property and may not be transferred to any other
property or properties. In the event Developer acquires fee title to one or more of the
five parcels within the Specific Plan area not currently owned by Developer (which
parcels are referred to in the Specific Plan as the Abu - Halawa (now under Linden
ownership), Gee and CRUSD parcels (collectively, the "Additional Parcels "), Developer
shall be issued additional building permits based on the number of residential units
designated in the Specific Plan for each such Additional Parcel (not to exceed a total of
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191 additional units for all of the Additional Parcels); provided, however, the number of
building permits to which Developer shall be entitled under this Section shall not exceed
three hundred fifty (350) per calendar year. Further, Developer shall have vested rights
under Section 3.01 of this Amended and Restated Agreement to develop such Additional
Parcels in accordance with the provisions of this Amended and Restated Agreement,
including the Affordable Housing Plan, the General Plan and the Specific Plan as of the
Effective Date.
Section 3.06 Reservations of Authority.
A. The parties acknowledge and agree that City is restricted in its
authority to limit its police power by contract and that the limitations, reservations and
exceptions contained in this Amended and Restated Agreement are intended to reserve to
City all of its police power which cannot be so limited. This Amended and Restated
Agreement shall be construed to reserve to City all such power and authority'which
cannot be restricted by contract. Notwithstanding the foregoing reservation of City, it is
the intent of City and Developer that this Amended and Restated Agreement shall be
construed to provide Developer with the maximum rights affordable by law, including
but not limited to, the Development Agreement Statute and the Subdivision Map Act,
except as expressly provided elsewhere in this Amended and Restated Agreement.
B. Notwithstanding any other provision of this Amended and Restated
Agreement to the contrary, the following regulations and provisions shall apply to the
development of the Property:
(1) Processing fees and charges of every kind and nature
imposed by City to cover the actual costs to City of processing applications for Project
Approvals or for monitoring compliance with any Project Approvals granted or issued, as
such fees and charges are adjusted from time to time.
(2) Regulations relating to hearing bodies, petitions,
applications, notices, findings, records, hearings, reports, recommendations, appeals and
any other matter of procedure, provided such procedures are uniformly applied on a city-
wide basis to all substantially similar types of development projects and properties.
(3) Regulations governing construction standards and
specifications including City's building code, plumbing code, mechanical code, electrical
code, fire code and grading code, and all other uniform construction codes then
applicable in City at the time of permit application.
(4) New City Laws which may be in conflict with this
Amended and Restated Agreement or the Project Approvals but which are necessary to
protect the public health and safety, provided such new City Laws are uniformly applied
on a city -wide basis to all substantially similar types of development projects and
properties.
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(5) New City Laws applicable to the Property, which do not
conflict with this Amended and Restated Agreement or the Project Approvals, provided
such new City Laws are uniformly applied on a city -wide basis to all substantially similar
types of development projects and properties.
Section 3.07 Regulation by Other Public Agencies. City and Developer
acknowledge and agree that other public agencies not within the control of City possess
authority to regulate aspects of the development of the Property separately from or jointly
with City, and this Amended and Restated Agreement does not limit the authority of such
other public agencies. Developer shall, at the time required by Developer in accordance
with Developer's construction schedule, apply for all such other permits and approvals as
may be required by other governmental or quasi - governmental entities in connection with
the development of, or the provision of services to, the Project. Developer shall also pay
all required fees when due to such public agencies. Developer acknowledges that City
does not control the amount of any such fees. City shall cooperate with Developer in
Developer's effort to obtain such permits and approvals; provided, however, City shall
have no obligation to incur any costs, without compensation or reimbursement, or to
amend any City policy, regulation or ordinance in connection therewith.
Section 3.08 Life of Project Approvals. The term of any and all Project
Approvals shall automatically be extended for the longer of the Term of this Amended
and Restated Agreement or the term otherwise applicable to such Project Approvals.
Section 3.09 Vesting Tentative Maps. If any tentative map heretofore or
hereafter approved in connection with development of the Property is a vesting map
under the Subdivision Map Act, Government Code §§ 66410 et seq., and if this Amended
and Restated Agreement is determined by a final judgment to be invalid or unenforceable
insofar as it grants a vested right to Developer for development of the Project, then and to
that extent all rights and protections afforded Developer under the laws and ordinances
applicable to vesting maps shall survive. Any tentative map prepared for the Property
will comply with the requirements of Government Code Section 66473.7 and shall
include a condition that sufficient water supply is available to serve the subdivision
created by such map.
Section 3.10 Developer's Right to Rebuild. City agrees that Developer may
renovate or rebuild portions of the Project at any time within the Term of this Amended
and Restated Agreement should it become necessary due to natural disaster or changes in
seismic requirements. Such renovations or reconstruction shall be processed as a
Subsequent Project Approval. Any such renovation or rebuilding shall be subject to all
design, density and other limitations and requirements imposed by this Amended and
Restated Agreement, and shall comply with the Project Approvals, the building codes
existing at the time of such rebuilding or reconstruction, and the requirements of CEQA.
Section 3.11 No Conflicting City Enactments. Except as and to the extent
required by State or Federal law; or as may be reasonably necessary to comply with
requirements of, and /or pass through rate and /or connection fee increases established by,
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other local governmental agencies, including sub - regional sewer and water system .
connection fees established by the City of Santa Rosa ( "Other Local Agency Compliance
Fees "); or as otherwise provided in this Amended and Restated Agreement, City shall not
impose on the Project any ordinance, resolution, rule, regulation, standard, official policy,
condition, or other measure (each, individually, a "City Law ") that is in conflict with the
Applicable Law, this Amended and Restated Agreement or the Project Approvals or that
reduces the development rights or assurances provided by this Amended and Restated
Agreement. Without limiting the generality of the foregoing, any City Law enacted or
adopted after the Effective Date of this Amended and Restated Agreement, shall be
deemed to conflict with this Amended and Restated Agreement or reduce the
development rights or assurances provided hereby if it would accomplish any of the
following results, either by specific reference to the Project or as part of a general
enactment which applies to or affects the Project:
A. Reduce the number of residential units permitted to be developed
on the UD LLC Property or the Vast Oak Property;
B. Reduce the square footage of commercial development permitted
to he developed within the Mixed -Use Commercial Center;
C. Change any land use designation or permitted use of the Property;
D. Limit or control the availability of public utilities, services or
facilities or any privileges or rights to public utilities, services, or facilities (for example,
water rights, water connections or sewage capacity rights, sewer connections, etc.) for the
Project;
E. Limit or control the location, configuration or size of lots,
buildings, structures, or other improvements of the Project in a manner that is
inconsistent with or more restrictive than the limitations included in or imposed by the
Project Approvals, Applicable Law or this Amended and Restated Agreement;
F. Limit or control the rate, timing, phasing or sequencing of the
approval, development or construction of all or any part of the Project in any manner,
except as set forth in this Amended and Restated Agreement, Applicable Law or the
Project Approvals; or
G. Impose on the Project or Developer any fees or exactions other
than those permitted by this Amended and Restated Agreement, Applicable Law or the
Project Approvals.
Section 3.12 Initiatives and Referenda. If any City Law is enacted or imposed
by a citizen - sponsored initiative or referendum, which City Law would conflict with the
Project Approvals, Applicable Law or this Amended and Restated Agreement or reduce
the development rights or assurances provided by this Amended and Restated Agreement,
such City Law shall not apply to the Property or Project; provided, however, the Parties
acknowledge that City's approval of this Amended and Restated Agreement is a
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legislative action subject to referendum. Without limiting the generality of any of the
foregoing, no moratorium or other limitation (whether relating to the rate, timing, phasing
or sequencing of development) affecting subdivision maps, building permits or other
entitlements to use that are approved or to be approved, issued or granted by City shall
apply to the Property or Project. Developer agrees and understands that City does not
have authority or jurisdiction over any other public agency's ability to grant
governmental approvals or permits or to impose a moratorium or other limitations that
may affect the Project. City shall cooperate with Developer and, at Developer's expense,
shall undertake such actions as may be necessary to ensure this Amended and Restated
Agreement remains in full force and effect. City, except to submit to vote of the
electorate initiatives and referendums required by law to be placed on a ballot, shall not
support, adopt or enact any City Law, or take any other action which would violate the
express provisions or spirit and intent of this Amended and Restated Agreement or the
Project Approvals.
Section 3.13 Environmental Mitigation. The Parties understand that the EIR is
intended to be used not only in connection with the Existing Project Approvals, but also
in connection with the Subsequent Project Approvals needed for the Project. Consistent
with the CEQA streamlining policies applicable to specific plans, City acknowledges its
obligation, in connection with Subsequent Project Approvals, not to require a
supplemental or subsequent EIR, mitigated negative declaration, or negative declaration,
unless required by Public Resources Code section 21166, and CEQA Guideline 15161 or
15162. Further, City shall rely on the exemption referenced in CEQA Guideline 15182 to
the fullest extent permitted by law. To the extent supplemental or additional
environmental review is required in connection with the Subsequent Project Approvals,
Developer acknowledges that City may require additional mitigation measures that were
not foreseen at the time this Amended and Restated Agreement was executed.
Section 3.14 Subdivision Maps.
A. A subdivision within the Project, which meets the definition of
"subdivision" in Government Code section 66473.7(a)(1), shall include as a condition of
approval a requirement that a sufficient water supply shall be available as required by
Government Code section 66473.7(b)(1). The parties agree that this provision complies
fully with section 65867.5(c) of the Development Agreement Statute.
B. The Parties intend that the final subdivision maps for the Project
will be prepared and submitted by Developer in phases such that the number of
residential lots for which a final map has been recorded will at all tunes track the number
of residential building permits allocated and issued to Developer. Notwithstanding the
foregoing, "large lot" final maps filed for purposes of financing and conveyance, shall
depict 1) the total number of residential building permits which have been allocated
under the City's Growth Management Ordinance for that "large lot" final map; and 2) the
sewer capacity and water capacity allocated to the number of EDUs covered by such
large lot. Accordingly, unless otherwise approved by the City Manager or his or her
designee in his or her sole discretion, no final subdivision map shall be considered for
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approval or be approved by City to the extent the sum total of all previously created
residential lots plus the number of lots shown on the proposed final map exceed the sum
total of all residential building permits previously issued to Developer plus the maximum
number of building permits that may be allocated to Developer pursuant to Section 3.05
below for the calendar year in which the final map application is submitted and the two
calendar years immediately there following.
C. The Project may be developed in phases as determined by the
Developer and approved by the City. Approval by the City will require at a minimum
that each phase provides the infrastructure and services necessary to support the
development of that phase.
Section 3.15 State and Federal Law. As provided in section 65869.5 of the
Development Agreement Statute, this Amended and Restated Agreement shall not
preclude the applicability to the Project of changes in laws, regulations, plans or policies,
to the extent that such changes are specifically mandated and required by changes in State
or Federal laws or by changes in laws, regulations, plans or policies of special districts or
other governmental entities, other than the City, created or operating pursuant to the laws
of the State of California ( "Changes in the Law "). In the event Changes in the Law
prevent or preclude compliance with one (1) or more provisions of this Amended and
Restated Agreement, the Parties shall meet and confer in good faith in order to determine
whether such provisions of this Amended and Restated Agreement shall be modified or
suspended, or performance thereof delayed, as may be necessary to comply with Changes
in the Law, and City and Developer shall agree to such action as may be reasonably
required. This Amended and Restated Agreement and the Project Approvals shall remain
in full force and effect unless and until amended in accordance with the requirements of
this Amended and Restated Agreement, and, in any event, this Amended and Restated
Agreement and the Project Approvals shall remain in full force and effect to the extent
the same are not inconsistent with such laws or regulations. Nothing in this Amended
and Restated Agreement shall preclude City or Developer from contesting by any
available means (including administrative or judicial proceedings) the applicability to the
Project any such Changes in the Law. Notwithstanding the foregoing, if Changes in the
Law preclude or substantially limit or delay performance in a manner that makes the
Project economically infeasible, the Party adversely affected, in its sole and absolute
discretion, may terminate this Amended and Restated Agreement by providing written
notice of such termination to the other Party.
ARTICLE 4. FINANCING AND PUBLIC IMPROVEMENTS
Section 4.01 Taxes, Assessments, Fees and Exactions.
A. Developer agrees to pay all taxes, fees, assessments and exactions
which are payable by Developer under this Amended and Restated Agreement, including
Federal /State Compliance Fees, Other Local Agency Compliance Fees, Processing Fees,
Consultant Fees, Architect Fees, Regional Traffic Fees, PFFP Fees and the Maintenance
Annuity Fees. With the exception of the foregoing fees and except as otherwise provided
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by this Amended and Restated Agreement, City may not impose any new, increased or
modified taxes, assessments, impact fees or other monetary and non- monetary exactions
on the Project, the Property or the Developer.
B. City may charge and Developer agrees to pay any new, increased
or modified taxes, assessments, impact fees or other monetary and non - monetary
exactions, whether imposed as a condition of or in connection with any Subsequent
Project Approvals or otherwise, which are uniformly imposed and reasonably necessary
to comply with the requirements of any Federal or State statute or regulation which is
enacted or adopted after the Effective Date of this Amended and Restated Agreement
( "Federal /State Compliance Fees ").
C. City may charge and Developer agrees to pay any new, increased
or modified taxes, assessments, impact fees or other monetary and non - monetary
exactions, whether unposed as a condition of or in connection with any Subsequent
Project Approvals or otherwise, which are uniformly imposed and reasonably necessary
to comply with the requirements of, and /or pass through, any Other Local Agency
Compliance Fees.
D. City may charge and Developer agrees to pay all water and sewer
connection fees ( "Water /Sewer Fees "), which are in force and effect on a City -wide
basis at the time those Water /Sewer Fees are payable at the rates then in effect.
E. City may charge and Developer agrees to pay all processing fees,
including application and inspection and monitoring fees ( "Processing Fees "), for land
use approvals, grading and building peiinits, general plan maintenance fees, and other
permits and entitlements, which are in force and effect on a City -wide basis at the time
those permits, approvals or entitlements are applied for on any or all portions of the
Project, and which are intended to cover the actual costs of processing the foregoing;
provided, however, that Developer retains the right to challenge increases in such fees
above the amounts in effect on the Effective Date as excessive under state law.
F. In addition to charging the foregoing Processing Fees, City may, in
its sole discretion, contract with one (1) or more outside inspectors, engineers or
consultants to perform all or any portion of the monitoring, inspection, testing and
evaluation services to be performed in connection with construction and development of
the Project ( "Consultant Fees "). Developer shall pay to City, within thirty (30) days
following City's written demand therefore and the City's submission of invoices, the full
amount of all Consultant Fees, plus a twenty percent (20 %) City administration charge
until such time as the City completes an internal study of the City administration charge
and either confirms or changes the amount of the City administration charge. The
Consultant Fees, together with the associated administrative charge, shall be in addition
to, and not in lieu of the Processing Fees; provided, however, City agrees not to double -
charge Developer (through the imposition of both a Processing Fee and Consultant Fee)
for any individual monitoring, inspection, testing or evaluation service. If the City adopts
a reduction in the City administration charge of less than 20% as a result of the City
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study, Developer agrees to pay the amended City administration charge. If, however, the
City adopts an increase in the City administration charge as a result of the City study,
Developer shall only be required to pay the twenty percent (20 %) City administration
charge as applied to Consultant Fees.
G. City may engage one or more outside architectural firms to review
and evaluate Developer's architectural plans and drawings for the Project, to ensure that
the Project complies with the approved architectural guidelines and to advise City and
the Planning Commission in connection with design review. City shall cooperate with
Developer in establishing a scope of work and budget(s) for said architectural firm(s).
City agrees that the scope of work to be undertaken by the firm(s) shall be reasonable in
light of the size, type and complexity of the Project. Developer shall pay to the City,
within 30 days following City's written demand therefore, the full amount of all costs
and fees charged by such outside architects ( "Architect Fees "), plus a twenty percent
(20 %) City administration charge, unless such charge is reduced by City as the result of
a study prepared as discussed in paragraph F above.
Section 4.02 Regional Traffic Improvement Fee.
A. Unless otherwise set forth herein, Developer agrees to pay, at the
time of issuance of a building pen-nit for each residential and /or commercial unit or
building within the Project, any future regional traffic improvement impact fee enacted
by City or the Sonoma County Transportation Authority ( "SCTA ") pursuant to the
Mitigation Fee Act (Government Code Section 66000, et seq.) that is based upon a nexus
study for the purposes of establishing a regional traffic improvement fee (the "City -wide
Traffic Impact Fee "). Developer shall fund the nexus study provided for under this
paragraph A in an amount not to exceed One Hundred Thousand Dollars ($100,000).
The City -wide Traffic Impact Fee shall be consistently applied on a city -wide basis to all
substantially similar types of development projects. If no City -wide Traffic Impact Fee
has been adopted at the time of issuance of a building permit for such residential or
commercial unit or building, then Developer shall pay City, at the time of building permit
issuance of the single family residence or other dwelling unit and out of the escrow
account for the sale, a fee ( "Regional Traffic Fee ") equal to Three Thousand and Five
Hundred Dollars ($3,500) for each market rate residential unit to mitigate the regional
traffic impacts of the Project. Developer shall be entitled to a credit against the Regional
Traffic Fee for Developer's actual out -of- pocket costs paid to unaffiliated third parties in
connection with Developer's construction and installation of City approved regional
traffic improvements, if any. For purposes of this Section 4.02, City approved regional
traffic improvements shall include regional roadway and traffic improvements as selected
by City from time to time in its discretion. It is understood that Developer's payment of
the Regional Traffic Fee satisfies Developer's obligations under the EIR for the following
mitigation measures: (i) Adobe Road /Petaluma Hill Road (Mitigation Measure TRA -9a);
(ii) Main Street /Old Redwood Highway (Mitigation Measure TRA -9a); and (iii) E. Cotati
Avenue /Old Redwood Highway (Mitigation Measure TRA -18a). Roadway and traffic
improvements included within the PFFP or required by the Project Approvals, including
the Rohnert Park Expressway, Keiser Avenue improvements, and various traffic signals
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on Petaluma Hill Road shall not be considered City approved regional traffic
improvements for purposes of this Section 4.02. All Regional Traffic Fees paid by
Developer shall be held by City in a separate account and used exclusively for City
approved regional traffic improvements which mitigate regional traffic impacts identified
in the EIR.
B. If, after five (5) years after the issuance of the 1,454th building
permit, such City -wide Traffic Impact Fee has not been committed in writing or
expended by City for the construction of regional traffic improvements that meet the
criteria set forth above, City shall return such unexpended and uncommitted Regional
Traffic Fees to Developer, except for any amount paid to City pursuant to Section 4.02
C(ii).
C. In the event that City adopts a Citywide Traffic Impact Fee, which
is less than and replaces the Regional Traffic Fee, Developer shall pay to the City at the
time of issuance of any building permits both (i) the new City -wide Traffic Impact Fee,
and (ii) one -half (1/2) of the difference between the Regional Traffic Fee of $3,500 and
the City -wide Traffic Impact Fee. It is understood that any monies received pursuant to
4.02C(ii) shall be retained and expended by City in its sole discretion.
Section 4.03 Public Facilities Financing Plan.
A. City has prepared and adopted the PFFP in order to identify capital
facilities necessary to serve new development, and to develop a comprehensive strategy
for managing the financing of such facilities, among other purposes. Developer shall
participate in the PFFP and any amendments thereto applicable to the Project. Developer
and City agree that the terms and provisions of the PFFP shall apply to the financing of
public improvements necessary to serve the Project. The financing requirements for all
in- tract improvements shall be set forth in the Specific Plan and in the conditions of
approval for the UD Tentative Map and the VO Tentative Maps.
B. Developer shall pay City the PFFP Fees in effect at time of
issuance of each building. Developer further agrees to and accepts the "fair share"
methodology for allocating costs among planned development projects, including the
Project, and existing development within City as set forth in the PFFP as of the Effective
Date. Developer acknowledges and agrees that City may update cost estimates and the
amount of the PFFP Fees from time to time, as City deems necessary and appropriate.
Except as otherwise expressly provided in the sentence immediately here following,
Developer hereby covenants not to sue City in connection with, and waives any and all
rights to challenge, the PFFP, including any updates to the PFFP, on any grounds
whatsoever. Developer retains the right to bring an action challenging the allocation of
PFFP Fees solely on the grounds that such fees were not allocated in accordance with the
fair share methodology set forth in the PFFP as of the Effective Date.
C. Notwithstanding any provision of the PFFP to the contrary,
Developer shall be entitled to receive credits against PFFP Fees for those improvements
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included in the PFFP and constructed by Developer ( "PFFP Credits "), at the lesser of:
(i) Developer's actual out -of- pocket cost and expenses paid to unaffiliated third parties in
connection with the construction and installation of such improvements, or (ii) the
designated cost amounts for such improvements set forth in the PFFP at the time City
approves the plans for such improvements ( "Eligible Cost "). To the extent the aggregate
Eligible Cost of all PFFP improvements constructed by Developer exceeds Developer's
total PFFP Fee obligation with respect to the Project, City and Developer shall enter into
a separate reimbursement agreement, in a form reasonably acceptable to the City
Attorney, whereby Developer will be reimbursed from available PFFP funds paid in the
future by third party developers at the time such funds are paid to City. City shall have
the right to use PFFP funds paid by other developers for certain critical infrastructure
facilities before reimbursements are made available to Developer. To the extent
applicable, the reimbursement agreement shall also provide a mechanism for Developer
to be reimbursed for its actual out-of-pocket costs in connection with acquisition of land
owned by third parties and required for off -site PFFP public improvements, if and when
such third party land owners develop their properties in the future. Developer shall
maintain and make available to Agency and its representatives, for review and /or audit
from time to time, records of all costs and expenses which are subject to potential
reimbursement pursuant to the reimbursement agreement.
D. Developer shall notify and present to City any request or proposal
which includes the transfer, assignment, option or sale of PFFP Credits for improvements
required for the Project prior to taking any final action to transfer, assign, option or sell
PFFP Credits. City shall review and retain sole authority of any such request regarding
PFFP Credits. Developer shall not assign, transfer, option or sell PFFP Credits without
the written authorization of City for such action.
E. City covenants and agrees that until all such fees are credited or
reimbursed, City will administer the PFFP in a consistent manner and will require
developers of all residential and commercial projects within the City to either pay their
respective share of PFFP fees, determined in accordance with the PFFP as amended from
time to time, or construct PFFP improvements in an amount equal to their respective
share.
F. Developer shall pay, at a minimum, Twenty -Five Percent (25 %) of
its obligation for PFFP Fees in cash at the time of building permit issuance. Provided
Developer has realized PFFP Credits due to actual funding and construction of PFFP
improvements, Developer may utilize those existing PFFP credits for the remaining
Seventy -Five Percent (75 %) of its PFFP Fee obligations. Developer's authority to pay
only Twenty Five percent (25 %) of its PFFP Fee obligations in cash is based on the
assumption that Developer shall fund its PFFP Fee obligations in accordance with the
schedule set forth in Exhibit C -1.
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Section 4.04 Community Facilities District.
A. Community Facilities District; Formation. Subject to subsection F.
below, and consistent with the Project Approvals and Applicable Law, the Parties shall
cooperate in good faith to establish the CFD pursuant to the Mello -Roos Act
(Government Code Section 53311 et seq.). The boundaries of the CFD shall be
coextensive with those of the Property, unless the Parties otherwise agree. Upon the
filing of a petition by Developer pursuant to Government Code Section 53318(c), the
City Council shall consider adoption of a resolution of intention to establish the CFD and,
following adoption, City shall use good faith, diligent efforts, in compliance with
Government Code Sections 53318 et seq., to establish and implement the CFD pursuant
to the terms of this Amended and Restated Agreement, including scheduling of necessary
public hearings and adoption of a resolution of formation. City shall cause the CFD,
upon formation, to become subject to and to comply with the provisions of this Amended
and Restated Agreement specifically applicable to the CFD. Developer shall cooperate
with City in the formation of CFD including the timely submission of all petitions,
waivers and consents. The City shall be responsible for conducting all proceedings for
the establishment of the CFD, including the adoption of all resolutions, ordinances and
orders and recording of maps, notices, releases and the conduct of all hearings, elections
and other public meetings under the Mello -Roos Act to establish the CFD, levy the
Special Taxes and, as appropriate, provide for issuance of the CFD Bonds. To the extent
City has not already adopted policies required by Government Code Section 53312.7,
City agrees to use its hest efforts to adopt such policies within ninety (90) days following
the Effective Date. Developer acknowledges and agrees that City's policies may require,
among other things, that the CFD proponent (in this case, Developer), provide a letter of
credit or other credit enhancement instrument in form and amount reasonably satisfactory
to City which is sufficient to ensure payment of the principal and interest payments on
the CFD Bonds for up to two (2) years following issuance thereof (computed without
regard to the availability of capitalized interest or amounts on deposit in a debt service
reserve fund).
B. Public Benefit Facilities. Subject to caps on the total amount of
net CFD Bond proceeds and the total tax and assessment rate set forth in subsections D.
and E. below, the CFD shall finance the design and acquisition or construction of those
public facilities necessary for development of the Project which may lawfully be financed
under the Mello -Roos Act and other applicable law, including (i) off -site public
improvements financed or proposed to be financed through Assessment District 05 -01 as
further described in Section 4.05; (ii) off -site public improvements described in the
PFFP; and (iii) on -site, in -track public improvements, including park improvements,
storm drainage improvements, public roadways and sidewalks (collectively, the "Public
Benefit Facilities "). Financing of the Public Benefit Facilities with CFD Bonds shall be
subject to approval of the City, based on the unqualified written opinion of a nationally -
recognized bond counsel that interest on the CFD Bonds will be federally tax exempt.
The Parties agree that in connection with issuance of the CFD Bonds, Developer and City
will enter into a funding and acquisition agreement in a form reasonably acceptable to
City's bond counsel setting forth, among other things, the procedures for and mechanism
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by which Developer will be reimbursed, out of available proceeds of the CFD Bonds, for
Public Benefit Facilities constructed and /or paid for by Developer.
C. Advance of Expenses; Reimbursement. Developer shall advance
to City the actual out of pocket costs of formation of the CFD, sale of CFD Bonds, and
other costs and expenses associated with the CFD ( "Advanced Costs "). Such Advanced
Costs may include, without limitation, legal, financial, appraisal and engineering costs
and expenses associated with (i) formation of the District; (ii) determination of the rate
and method of apportionment and levy of the Special Tax; (iii) review and approval of
the plans and specifications for construction of the Public Benefit Facilities; (iv)
determination of the value of property; (v) sale of CFD Bonds; and (vi) any other costs or
expenses reasonably incurred in connection with the CFD. All such Advanced Costs,
together with those reasonable out -of- pocket legal, engineering and financial services
costs incurred by Developer directly related to establishment and implementation of the
CFD which have been approved by the City Manager or his or her designee in his or her
reasonable discretion and which may lawfully be financed under the Mello -Roos Act and
other applicable law, shall be reimbursed to Developer from proceeds of the sale of CFD
Bonds.
D. Issuance of CFD Bonds. Upon successful formation of the CFD
and approval of the Special Tax, and subject to the restrictions in this subsection D. and
in subsection E. below, bonds shall be issued ( "CFD Bonds "), the proceeds of which
shall be used to finance the Public Benefit Facilities, to the extent the Public Benefit
Facilities legally and feasibly may be financed utilizing this method of financing. The
amounts, timing and terms of the issuance and sale of the CFD Bonds shall be determined
by the City, in consultation with the Developer and the City's bond counsel, financial
advisors and /or underwriters. Subject to the state of development of the Property and
prevailing bond market conditions, the timing of the sale of the CFD Bonds shall be
coordinated, as closely as possible, with the phasing of the development of the Property
to provide financing for the Public Benefit Facilities in a timely fashion to meet the needs
of the respective phases of development of the Project. If necessary, the CFD Bonds may
be issued in series to help correspond to such phases. Developer agrees to assist the City
in the issuance of the CFD Bonds by providing financial and development information
reasonably required for due - diligence and disclosures relating to the issuance of the CFD
Bonds and to provide for any required continuing disclosures under applicable securities
laws. The total net proceeds of the CFD Bonds (not including capitalized interest or
amounts on deposit in a debt service reserve fund; underwriter fees, legal costs,
administrative expenses and other costs of issuance; or that portion of the CFD Bonds
proceeds, if any, applied towards repayment of Assessment District 05 -01 liens in effect
as of the Effective Date as further described in Section 4.05) shall not exceed Fifty
Million Dollars ($50,000,000).
E. Special Tax. The CFD shall be authorized to levy, and Developer
shall approve (by affirmative vote or other legally acceptable method), a tax ( "Special
Tax ") in accordance with the rate and method of apportionment of such Special Tax
approved in the completed proceedings for the CFD. The Special Tax shall be
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determined and collected annually by the City against all taxable parcels as defined by
the rate and method of apportionment of the Special Tax for the CFD. The Special Tax
shall be collected in the same manner and at the same time as ad valorem property taxes,
unless some other method of collection is specified by the City. The Special Tax shall be
set at an amount sufficient to pay the estimated annual principal of and interest on the
CFD Bonds, together with required debt service coverage requirements and the annual
costs of calculation, collection and disbursement of the Special Tax and the annual
administration, engineering, and inspection costs associated with the CFD; provided,
however, the Special Tax so set shall be in an amount such that, at the time the rate and
method of apportionment of the Special Tax is approved, the estimated total annual taxes
and assessments to be levied on each taxable parcel within the CFD district shall not
exceed 1.75% of the parcel's projected assessed valuation based on a reasonable estimate
of the sale price for the parcel and the residential or commercial unit to be constructed
thereon, which estimated sale price has been approved by the City Manager or his or her
designee in his or her reasonable discretion. The rate and method of apportionment shall
be drafted to allow a property owner to permanently satisfy the Special Tax (and remove
the lien thereof) as to any taxable parcel by prepayment pursuant to Section 53344 of the
Mello -Roos Act.
F. City's Reservation of Discretion. It is expressly acknowledged,
understood and agreed by the Parties that (i) City reserves full and complete discretion
with respect to legally required findings that must be made in connection with formation
of the CFD, (ii) nothing in this Amended and Restated Agreement is intended to or shall
limit City's ability to adopt legally required findings with respect to formation of the
CFD, and (iii) nothing in this Amended and Restated Agreement is intended to or shall
prejudge or commit to City regarding the findings and determinations to be made with
respect thereto.
G. Costs If No CFD Formed. In the event that City is unable to make
the legally required findings in connection with the formation of the CFD and the
issuance of CFD Bonds for any reason, City shall not be liable for any resulting costs to
Developer and Developer shall have the right to terminate this Amended and Restated
Agreement by written notice to City given within 30 days following the date City is
unable or elects not to proceed with such formation of the CFD and issuance of CFD
Bonds. If Developer opts not to terminate this Amended and Restated Agreement then
Developer shall nonetheless be responsible for constructing all of the Public Benefit
Facilities at its expense (but subject to potential reimbursement of excess Eligible Costs
as provided in subsection 4.03.C. above) regardless of whether the cost thereof exceeds
Developer's PFFP Fee obligation.
H. Developer's Cooperation. In connection with the establishment
and implementation of the CFD, Developer (i) will execute all necessary petitions and
ballots and waive all election waiting and protest periods at City's request and prior to the
issuance of any building permit on any phase of the Project; (ii) support City's adoption
of local policies related to use of CFD financing, which may include a requirement that
the CFD proponent provide, at its expense, a letter of credit or other credit enhancement
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instrument sufficient to ensure repayment of the principal and interest payments on the
CFD Bonds for up to two (2) years following issuance thereof, as reasonably determined
by City; (iii) cooperate in the development of rate and method of apportionment or
assessment formula; (iv) allow special tax liens to encumber all phases of the Project in
order to accomplish the required construction projects; and (v) if requested by City,
cooperate with City to prepay with proceeds from the CFD Bonds all or a portion of the
Assessment District 05 -01 bonds described in Section 4.05 below.
I. Developer's Consent. Developer irrevocably consents to the
formation of the CFD, the issuance of the CFD Bonds, the imposition of the Special Tax
against the Property at rates and pursuant to a method of apportionment appropriate to
fund the debt service on the CFD Bonds sold to finance the Public Benefit Facilities, and
agrees not to protest or object to formation of the CFD or levy of an appropriate Special
Tax consistent herewith. Developer has agreed to the financing provisions set forth in
this Section 4.04 and to perform the obligations hereunder in exchange for the
consideration and benefits provided to Developer by City under this Amended and
Restated Agreement, including the vested right to develop the Property. Developer
acknowledges and agrees that CFD Bonds shall not be issued to fund any on -site public
improvements or any other infrastructure or fees other than the Public Benefit Facilities.
J. Notification of Fees, Taxes, and Assessments. Developer shall
provide actual and conspicuous notice to potential homeowners, in a form reasonably
acceptable to the City and in compliance with all applicable legal requirements
(including, without limitation, applicable provisions of Government Code Section
53341.5) of any and all fees, taxes, and assessments to be charged to any and all
purchasers of real property interests in the Project. Developer shall provide potential
homeowners with a written and itemized notice of such projected costs and the manner in
which they will be charged to the potential homeowner, which notice the potential
homeowner shall sign. Developer shall retain a copy of each signed notice in
Developer's files for at least fifteen (15) years following the date of such notice, and shall
provide a copy of each such signed notice to the City's Community Development
Director.
K. Limited Liability of City. Notwithstanding any other provision of
this Amended and Restated Agreement, City shall not be liable for or obligated to pay
any costs or expenses in connection with the CFD or the Public Benefit Facilities except
to the extent monies are available (from Advanced Costs, PFFP Fees collected in
accordance with the PFFP, proceeds of CFD Bonds, or Special Taxes) and specifically
authorized by law for payment of such costs or expenses.
L. CSCDA or ABAG. For purposes of this Section 4.04, Developer,
in Developer's sole discretion, may elect to fotni the CFD through the CSCDA or the
Association of Bay Area Governments ( "ABAG "), so long as CSCDA or ABAG,
establishes the CFD (i) in accordance with the City's goals and policies set forth in
Resolution 2006 — 276, and (ii) the CFD is established such that its terms are in
compliance with Section 4.04 of this Amended and Restated DA. Accordingly, in the
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event Developer elects to proceed with either CSCDA or ABAG, Developer shall notify
City of its intent to proceed with CSCDA or ABAG, and provide documentation
evidencing that CSCDA or ABAG will comply with the above - referenced City's goals
and policies and this Section 4.04. In the event Developer elects to form a CFD through
ABAG or CSCDA, all references to the City in the organizational documents shall be
substituted with references to either CSCDA or ABAG as appropriate and all references
to the City Council shall be substituted with references to the applicable governing body
of either CSCDA or ABAG as may be appropriate. Except that, any obligations in
Section 4.04.J regarding Developer's obligation to attain City approval of all notices sent
to potential Homeowners shall remain in full force and effect. Should the Developer
elect to form the district through CSCDA or ABAG, CSCDA or ABAG will prepare a
Resolution for adoption by the City Council which incorporates said policies into the
Resolution and designates a city official as the lead person and contact through the
formation and issuance process.
Section 4.05 Assessment Districts.
A. Developer acknowledges that prior to the Effective Date, City,
with the consent of the County of Sonoma, has formed Assessment District 05 -01 under
the authority of the Municipal Improvement Act of 1913 and this Assessment District 05-
01 has established a lien upon the Property. Developer further acknowledges and agrees
that City reserved authority to sell assessment bonds under the authority of the
Improvement Bond Act of 1915, for the purposes of funding the City's sewer
interceptor /outfall project and that such bonds will be secured by the aforementioned lien.
Developer also acknowledges and agrees that the City, from time to time and with the
consent of the County, may initiate proceedings to change and modify Assessment
District 05 -01 to fund the construction of additional public improvements that are
identified in the PFFP, and that in the opinion of the City Engineer or his designee
provide unique and special benefit to the Property. In accordance with City Municipal
Code section 3.28.080.C., to the extent some or all of the capital facilities proposed to be
financed through the PFFP are financed through Assessment District 05 -01, Developer's
participation in such Assessment District shall be a credit against the appropriate
component of the PFFP Fees that would otherwise be payable by Developer.
B. In connection with Assessment District 05 -01 as is currently
stands, Developer shall make all payments of assessment liens that have been levied and
that may be billed on the tax roll of the County of Sonoma. In connection with changes
and modifications to Assessment District 05 -01 as may occur from time to time,
Developer (i) will execute all necessary petitions and ballots and waive, to the maximum
extent allowed by applicable law, all election waiting and protest periods at City's
request; (ii) cooperate in the development of additional or modified assessment formulas;
(iii) allow assessment liens to encumber all phases of the Project in order to accomplish
such additional public improvement projects; and (iv) make all payments of assessment
liens that are levied and billed on the tax roll of the County of Sonoma in connection with
such changes and modifications. In the case of any conflict between the provisions of
this Amended and Restated Agreement and the method of apportionment or assessment
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utilized in Assessment District 05 -01, as it may be changed and modified from time to
time, the Assessment District 05 -01 method of apportionment or assessment shall be
utilized. Except as may otherwise be approved by Developer in its reasonable discretion,
City agrees that it will not pursue levy of any additional or increased Assessment District
05 -01 liens against the Property unless and until any litigation challenging this Amended
and Restated Agreement, the City's water supply assessment or any of the Project
Approvals has been resolved in.a manner that will pen-nit the Project to proceed as
described in this Amended and Restated Agreement.
Section 4.06 Maintenance Annuity,
A. Developer shall fund, and City shall establish, a maintenance
annuity fund ( "Maintenance Annuity ") to offset the projected fiscal deficit to the
General Fund of City created by the residential development within the Project as set
forth in the Fiscal Impact Report and to comply with the following General Plan policies
and goals: GM -F, GM -H, GM -9, GM -13, OS -H, EC -10 and HO -3.
B. The Maintenance Annuity will be created and funded as follows:
(1) At the time of issuance of a certificate of occupancy for
each residential unit within the Project, Developer shall pay to City the applicable
Maintenance Annuity amounts determined as provided in this subsection 4.06.B. The
Maintenance Annuity amounts payable as of the Effective Date shall be Eleven Thousand
Two Hundred Dollars ($11,200) for each residential unit, including all market rate and all
Affordable Units including single family and multi- family for -sale and rental units, and
shall be subject to periodic adjustment as provided herein. The foregoing initial
Maintenance Annuity amount shall be increased on the first anniversary of the Effective
Date and each year thereafter (each, an "Adjustment Date ") to equal the sum of (i) the
initial Maintenance Annuity amount set forth above, plus (ii) the product obtained by
multiplying such amount by the percentage increase in the Consumer Price Index
measured from the measuring month nearest the Effective Date, to the measuring month
nearest the Adjustment Date; provided, however, in no event shall the Maintenance
Annuity amount be reduced below the initial amount set forth above. As used herein, the
term "Consumer Price Index" means the United States Department of Labor's Bureau of
Labor Statistics Consumer Price Index, All Urban Consumer, All Items, San Francisco -
Oakland -San Jose, California (1982 -1984 equals 100), or the successor of such index.
(2) City shall invest all amounts received under this Section
4.06 in a segregated annuity or investment account selected by and acceptable to City,
which will create a stream of income to be paid into the City's General Fund to pay for
the increased cost of municipal services resulting from the development of the Project.
Developer agrees that the Maintenance Annuity amount set forth above, including the
Fiscal Impact Report, the formula for adjusting the initial amount as set forth above, and
the interest to be earned by City on the Maintenance Annuity, represent a fair, reasonable
and accurate measure and method of determining the incremental impact of the increased
cost of municipal services resulting from the residential development of the Project.
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Developer hereby covenants not to sue City and waives any and all rights to challenge the
validity of the Fiscal Impact Report and the Maintenance Annuity amount, as increased
or decreased annually as provided above.
Section 4.07 Financing Mechanisms for Private Improvements. Prior to
approval of any final map within the Project, Developer shall prepare and submit to the
City Manager or his designee for review and approval a plan, that may include
establishment of property owner and homeowner associations ( "HOA "), to ensure
payment of the on -going costs of operation, maintenance, repair and replacement of all
private open space, private recreation and private parks, private landscaped areas and
private alleys and all water quality detention basins and facilities included within such
final map ( "HOA Maintenance Program "). In proposing a HOA Maintenance Program to
City, Developer shall demonstrate to the satisfaction of City Manager or his or her
designee (in his or her reasonable discretion) that funding of such on -going costs is
economically sound and feasible and will not burden initial Project phase residents.
Approval of the mechanism for funding such ongoing costs by the California Bureau of
Real Estate (BRE) shall be required.
A. The HOA Maintenance Program shall include at a minimum,
evidence of an adequate funding mechanism (e.g. cash flow analysis, ongoing
maintenance costs, capital replacement costs, and HOA revenue) and shall consider the
phasing of improvements with each phase of development. In the event that Developer is
unable to satisfactorily demonstrate to the City Manager or his or her designee that the
initial Project phase residents will not be burdened by additional maintenance costs,
Developer shall adjust the BRE budget and /or the timing of the transfer of the HOA
improvements from the Developer to the HOA. Any such adjustments shall be reflected
in a revised HOA Maintenance Program. It is understood that any revised HOA
Maintenance Program may reflect submission of additional funding by Developer in
order to avoid financially burdensome impacts to the initial Project phase residents. Any
additional funding provided by Developer shall be sufficient to assure that all costs,
including maintenance of an adequate reserve to reimburse City for any maintenance and
repair work completed by City, if necessary, can be established.
B. Developer shall dedicate to the Homeowners' Association (HOA)
all water quality detention basins and facilities within the Project promptly following
Developer's satisfactory completion of such basins and facilities. The HOA shall be
responsible for maintaining, operating, repairing and replacing, as necessary, the water
quality and flood water detention basins and facilities, and the property owner and
homeowner associations (and not City) shall be solely responsible for bearing all costs in
connection with such maintenance, operation, repair and replacement. The City shall be
named as an express third party beneficiary under all property owner and homeowner
association documents with the right to independently enforce such associations'
obligation to maintain and pay all costs of maintaining, operating and repairing the water
quality detention basins and facilities.
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C. Upon notice to the HOA, City shall have the right to perform
maintenance and repair work as needed to ensure that the creeks and basins will function
as designed and will have adequate flood protection capacity; the City will have the right
to invoice the HOA for costs incurred and the HOA will reimburse the City for these
costs in a timely manner but in no event less than 30 days of receipt of invoices. As an
option, the HOA and City may enter into a written contract whereby the City will
perform specified work on a long -term basis and the HOA pays the City for the cost of
this work. Developer may also agree to provide a maintenance annuity for the cost of
specified work to be performed by the City (the annuity will be separate and apart from
the annuity required under Section 4.06). The CC &R's shall include a description and an
exhibit of improvements to be maintained by the HOA. The form of Developer's
homeowner and property owner association documents, including conditions, covenants
and restrictions, shall be subject to review and approval by the City Attorney, not to be
unreasonably withheld or delayed.
D. Each final map for the Vast Oak and UDLLC properties shall
include a public drainage easement over the creek and basin properties. Developer and
the HOA shall not contest the right of upstream third parties to discharge runoff into the
creeks and basins.
E. Developer shall enter into an agreement with the City to operate
and maintain into perpetuity all water quality and water detention improvements within
the Vast Oak and UDLLC properties. The agreement shall run with the property and shall
provide for the HOA to succeed Developer upon transfer of these parcels from Developer
to the HOA. The agreement shall be subject to the approval of the North Coast Water
Quality Control Board and generally conform to the City of Santa Rosa long -term
maintenance agreement for stormwater treatment measures.
Section 4.08 Pedestrian Bridges and Paths. Developer shall use its best efforts
to complete construction of, and dedicate to City, a pedestrian bridge across Copeland
Creek connecting the J Section to Rancho Cotati High School. Construction shall be
completed and the bridge dedicated to the City pursuant to the timeframe identified in
Exhibit C. Notwithstanding the foregoing, should Developer be unable to obtain, despite
its best efforts, resource agency approval for such construction Developer shall pay City
an amount equal to the full estimated cost of constructing the Copeland Creek pedestrian
bridge as determined by the City Engineer based upon the lowest responsible bid
received by City for such work so that the City may coordinate the receipt of the resource
agencies' approval and construct this pedestrian bridge. Developer shall also commence
and complete construction of a pedestrian bridge across Hinebaugh Creek connecting VO
East to VO North in accordance with the timeframes identified in Exhibit C.
Section 4.09 Roadway Improvements. Developer, at its expense, shall design,
construct and thereafter dedicate to City the roadway improvements set forth in this
Section 4.09 in accordance with the timeframes identified in Exhibit C. In the event that
Developer does not complete construction in accordance with the time periods
established in Exhibit C, the City Manager has the right to either withhold future building
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permits until the construction of the improvement is completed, or the City Manager may
extend the time period for completion of construction.
A. Rohnert Park Expressway. Developer shall commence
construction of and shall complete the Rohnert Park Expressway improvements in two
phases, including signalization improvements, or as otherwise defined in Exhibit C.
(1) Notwithstanding the above, Developer shall complete
interim street connections between Rohnert Park Expressway and all new interior streets
within the Vast Oak property prior to occupancy of any residential units or non-
residential space. The improvements shall provide safe and reasonable access to interior
streets, reflecting the condition of Rohnert Park Expressway at the time of the first
occupancy, and shall be improved and upgraded as needed for the duration of
construction on Rohnert Park Expressway to reflect changed conditions as construction
progresses. The interim improvements shall be shown on a plan approved by a civil
engineer licensed to practice in the State of California, and shall be reviewed and
approved by the City Engineer or his designee prior to implementation.
(2) Developer shall construct the Rohnert Park Expressway
improvements based on a City - approved roadway design for the Rohnert Park
Expressway improvements pursuant to the timeframes set forth in Exhibit C. City's
acceptance of the Rohnert Park Expressway improvements shall not be unreasonably
withheld.
B. Keiser Avenue. Developer shall construct the Keiser Avenue
improvements, including signalization improvements, in two phases, as described in the
PFFP and as defined in and in accordance with the timeframes set forth in Exhibit C. .
C. Bridge /Connector Improvements. Developer shall commence
construction of the connector roadway and bridge(s) connecting VO East across VO
North to Keiser Avenue, as defined in and pursuant to the timeframe identified in Exhibit
C. Subject to approval by the applicable resource agencies, such bridge(s) may consist of
a combined vehicular /pedestrian bridge or separate vehicular and pedestrian bridges.
Section 4.10 City Dedication and Acquisition Parcels.
A. Water Tank. Developer shall fund all costs and expenses
associated with the permitting, design, construction and installation of an approximately
eight hundred thirty -three thousand (833,000) gallon water tank, and shall construct and
install such water tank to serve those uses delineated in Specific Plan, to the satisfaction
of the City Manager or his or her designee as defined in and pursuant to the timeframe
identified in Exhibit C. Developer acknowledges and agrees that no building permit will
be issued for the four hundredth (400th) residential unit within the Project until such time
as installation of the water tank has been completed and the Parties have closed escrow
for City's acquisition of the Water Tank Property from Developer as provided in Section
4.10.B., below. The water tank construction shall be completed in accordance with the
schedule set forth in this Section 4.10.A., subject to the understanding that extension of
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the City's water transmission line from the aqueduct by the golf course down Rohnert
Park Expressway to Snyder shall be completed such that Project fire flows and demands
can be served by the extension and connection to the City's water system. Provided
Developer meets its funding obligations under this Section 4.10.A, and subject to
enforced delays as provided in Section 9.06, in the event that Developer fails to timely
construct the water tank, City may pursue permitting, design, construction and
installation of the water tank. Following receipt of an Engineer's Estimate for
construction for the Water Tank, the City will request funding from Developer in the
amount of: 1) the Engineer's Estimate, 2) 10% for construction contingencies, and 3) the
estimated cost of inspection and construction management (collectively referred to as the
"Water Tank Costs "). Developer shall pay the Water Tank Costs to the City within 30
days of written request by the City. Upon receipt of the funding from Developer, the City
will advertise for construction bids for the Water Tank Construction. Developer shall
reimburse City for any and all of City's costs, fees and expenses, including legal and
staff time, incurred in connection with such permitting, design, construction and
installation in the following manner:
(1) The City shall render invoices outlining the items for which
payment is requested for any and all costs, fees and charges required under this Section.
Invoices shall be due and Developer shall pay said invoices within thirty (30) days of
mailing invoice. Any amount found to be due shall be immediately due and payable
upon receipt of notice.
(2) In the event that Developer fails to pay an invoice or any
portion thereof, it shall become delinquent thirty (30) days after mailing the invoice.
Invoices not paid by this date shall be subject to a penalty of ten percent (10 %).
Developer shall pay this amount for each calendar month in which all or any part of any
invoice payment remains delinquent. The Parties agree that this late charge represents a
reasonable estimate of the expenses the City will incur. The City's acceptance of the late
payment shall not constitute a waiver of Developer's breach with respect to the overdue
amount or prevent the City from exercising any of the rights and remedies available to
the City under this Amended and Restated Agreement.
B. Acquisition of Water Tank Property. In consideration for City's
payment of the Water Tank Property acquisition price referenced below, City's
agreements hereunder and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Developer shall transfer, and City shall
acquire, a fee interest in and to the approximately fifty three (53.0) acre Water Tank Site,
and a nonexclusive access easement over adjacent land owned by Developer or its
Affiliated Party ensuring that City and its designees have access to the water tank and
Water Tank Site from the nearest public road (collectively, the "Water Tank Property ").
The Parties agree that the acquisition price for the Water Tank Property shall be Ten
Dollars ($10) and that such acquisition price, together with the benefits to Developer
provided under this Amended and Restated Agreement, represents the fair market value
of the Water Tank Property. Further, the Parties agree that Developer shall retain the
twenty (20) foot access ri ghts across the 53.0 acre Water Tank Property for utilities,
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vehicle access, and pedestrian access as depicted on Revised Exhibit E, which easement
and access rights may be further re- aligned by Developer so long as Developer's access
rights do not interfere with City's use and enjoyment of Water Tank Property and
Developer has received City approval.
The Parties acknowledge that the acquisition of the Water Tank Property
by City pursuant to this Section 4.10 is anticipated to be made in lieu of condemnation by
City. The Parties intend by this Amended and Restated Agreement to provide for full and
complete compensation to Developer for the Water Tank Property and all other costs,
including but not limited to severance damages. The Parties acknowledge that because
the City may exercise the power of eminent domain to acquire, Developer is compelled to
sell; and because City requires the Water Tank Property for a public project, City is
compelled to buy. As such the acquisition of the Water Tank Property is an involuntary
conversion of the Water Tank Property from private to public use. Both Developer and
City recognize the expense, time, effort and risk to both Developer and City in resolving
a dispute over compensation for the Water Tank Property by eminent domain litigation;
and the compensation set forth herein is in compromise arrived at by negotiation and
settlement, in lieu of and in avoidance of such litigation.
The closing of the Water Tank Property transfer and acquisition will take
place through an escrow established with a title company selected by City. The closing
shall occur as soon as practicable following annexation of the Property on a date mutually
acceptable to the Parties, but in any event prior to issuance of the first (1st) building
permit for any residential unit within the Project. Developer shall cause the Water Tank
Property to be conveyed to City free and clear of all recorded and unrecorded non-
monetary liens, encumbrances, easements, leases, covenants, conditions, restrictions, and
other exceptions to or defects in title, excepting only the lien for current, non - delinquent
property taxes and the Williamson Act Contract. Developer shall pay all costs required
to place title in the condition described herein and shall convey the Water Tank Property
to City by a standard title company form grant deed, except that the deed shall recite that
the transfer is in lieu of acquisition by eminent domain. All escrow charges and
recording fees shall be borne by Developer. City shall pay the cost of its owners' policy
of title insurance.
Escrow agent shall pay and charge Developer for that portion of current
property taxes and assessments and any penalties and interest thereon allocable to the
period prior to the close of escrow. The portion of current property taxes which would
otherwise be allocable to the period after the close of escrow shall not be allocated, as
City is exempt from payment of property taxes. Developer shall have the sole right, after
close of escrow, to apply to the Sonoma County Tax Collector for refund of any excess
property taxes which have been paid by Developer with respect to the Water Tank
Property.
The obligation of the City to complete the acquisition of the Water Tank
Property shall be subject to the satisfaction, or written waiver by City, of the following
conditions: (i) Developer shall deliver through escrow an executed, acknowledged and
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recordable grant deed sufficient to convey fee title to the City as set forth in this
subsection 4.10.B.; (ii) Developer shall deliver through escrow a non- foreign transferor
declaration duly executed and in a form reasonably acceptable to escrow agent; (iii) a title
company reasonably acceptable to City shall be prepared to deliver to City an ALTA
standard or, at City's election, an extended coverage owner's policy of title insurance
showing fee title to the Water Tank Property vested in City in the condition described in
this subsection 4.10.B. with insurance coverage in the amount of the fair market value of
the Water Tank Property as reasonably determined by City; and (iv) City shall have
approved the soils and environmental condition of the Water Tank Property.
C. Crane Creek Regional Park Easement. Pursuant to the timeframe
identified in Exhibit C, Developer shall execute, acknowledge and deliver to City for
recordation in the Official Records of Sonoma County, an irrevocable offer to dedicate to
City or City's designee a perpetual easement for trail purposes, approximately twenty
(20) feet in width, over and across the Crane Creek Trail Easement Area depicted and
described in Exhibit F attached hereto. The trail easement shall include access for
pedestrian, bicycle and maintenance vehicles and the installation, maintenance and repair
of utilities and temporary construction areas. City will be responsible for design, permit
processing, maintenance and improvement costs associated with the trail, and will
determine the location of such trail, subject to a requirement that it not inhibit the
adjacent property's use for resource agency or other regional improvements, such as
recycled or potable water tanks, recycled water reservoirs, and the like. The irrevocable
offer to dedicate shall be in a form reasonably acceptable to the City Attorney. Prior to
City's recordation of the irrevocable offer to dedicate the Crane Creek trail easement,
Developer, at its expense, shall cause all recorded and unrecorded monetary liens and all
recorded and unrecorded non - monetary liens, encumbrances, easements, leases,
covenants, conditions, restrictions, and other exceptions to or defects in title, excepting
only the lien for current, non - delinquent property taxes, to be removed from title.
D. No Additional Purchase Price. Developer's funding of
construction of the water tank, transfer of the Water Tank Property to City, and
dedication of the Crane Creek trail easement shall be in consideration of City's
performance of its obligations set forth in this Amended and Restated Agreement, and
neither City nor City's designee shall be required to pay any additional fee or purchase
price in connection therewith (other than City's payment of the Water Tank Property
purchase price referenced in subsection 4.10.B. above), nor shall Developer be entitled to
any PFFP Fee credits.
Section 4.11 Funding and Construction of Sewer Improvements
(1) Developer Funding of Eastside Trunk Sewer Line North
Reach Construction and Snyder Widening. The Eastside Trunk Sewer North Reach/
Snyder Lane Widening shall consist of the sewer line from Southwest Boulevard to
Rohnert Park Expressway, the widening of Snyder Lane from Southwest Boulevard to
Medical Center Drive, the widening of the bridge on Snyder Lane at Copeland Creek, and
the improvement of the intersection at Snyder Lane and Rohnert Park Expressway.
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( "North Reach Construction "). Developer agrees to pay all costs associated with the
design and construction of the North Reach Construction, which shall include
improvement plans and specifications for the North Reach Construction. Following
receipt of an Engineer's Estimate for construction of the North Reach Construction, the
City will request funding from Developer in the amount of: 1) the Engineer's Estimate, 2)
10% for construction contingencies, 3) the estimated cost of inspection and construction
management, and 4) design costs (collectively referred to as the "North Reach Costs ").
Within 30 days of City's request for funding in accordance with paragraph 4.11 A,
Developer shall pay to City the amount of Two Million Dollars ($2,000,000) as an initial
payment for the North Reach Costs. Thereafter, Developer shall pay monthly
installments of One Million Dollars ($1,000,000) until all North Reach Costs have been
paid in full. In the event that Developer fails to pay the monthly installment of One
Million Dollars ($1,000,000) or any portion thereof, it shall become delinquent thirty (30)
days after the monthly installment due date. Monthly installments which are not paid by
this date shall be subject to a penalty of ten percent (10 %). Developer shall pay this
amount for each calendar month in which all or any part of any monthly installment
remains delinquent. The Parties agree that this late charge represents a reasonable
estimate of the expenses the City will incur. The City's acceptance of the late payment
shall not constitute a waiver of Developer's breach with respect to the overdue amount or
prevent the City from exercising any of the rights and remedies available to the City
under this Amended and Restated Agreernent.
B. Step In Rights. In the event that North Reach Construction is
unreasonably delayed and City has terminated the contract with the North Reach
Construction contractor, City shall notify Developer of the termination of the contract for
the North Reach Construction and Developer may pursue permitting, design, construction
and installation of the North Reach Construction, subject to City inspections and
acceptance. Upon Developer's completion of construction of the North Reach
Construction and City's acceptance of improvements, Developer shall be entitled to PFFP
Credits for the actual costs incurred for Developer's construction of the North Reach
Construction.
C. Allocated Sewer Capacity. Provided that Developer funds the
design and construction of the North Reach Construction in accordance with this Section
4.11, City shall allocate to Developer an initial sewer capacity of a minimum of Three
Hundred and Thirty (330) market rate dwelling units. Upon issuance of the Two
Hundredth (200th) building permit, City shall allocate sewer capacity for an additional
Seventy (70) dwelling units for a total allocated sewer capacity for the Project of a
minimum of Four Hundred (400) dwelling units. Following completion of the North
Reach Construction, Developer shall be entitled to sewer capacity for 1454 units and the
Commercial Center. Notwithstanding the above, this sewer capacity allocation shall be
subject to the City's Growth Management Ordinance.
D. Capacity for CRPUSD Property. City and Developer agree to
exercise reasonable efforts to work with CRPUSD to determine the appropriate sizing
location and alignment of an over -sized Vast Oak sewer line to serve the CRPUSD
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property as shown on the VO Tentative Map dated February, 2014 and submitted to the
City Community Development in February 2014. Developer's obligation to install the
over -sized Vast Oak Sewer Line shall be subject to the reimbursement by the CRPUSD
for the over - sizing of the sewer line [at such time as the building permit or final maps are
approved on the CRPUSD property] and the provision of necessary easements for the
development on the Vast Oak Property including additional facilities to accommodate
this connection to CRPUSD.
Section 4.12 Park Improvements.
A. Twin Creeks Park. In accordance with the Parkland Dedication
Ordinance and the Quimby Act, Developer, at its expense, shall commence construction
of and complete the approximately seven (7) acre Twin Creeks Park located within VO
Central pursuant to the timeframe identified in Exhibit C. Construction shall be
completed and Twin Creeks Park shall be open for public use in accordance with Exhibit
C.
B. Oak Grove Park. In accordance with the Parkland Dedication
Ordinance and the Quimby Act, Developer, at its expense, shall commence construction
of and complete the approximately six (6) acre Oak Grove Park Located within VO North
pursuant to the timeframe identified in Exhibit C. Construction shall be completed and
Oak Grove Park shall be open for public use in accordance with Exhibit C.
Section 4.13 Entrance Monuments. Prior to issuance of a building permit for
the one hundredth (100th) market rate residential unit within the Project, Developer shall
pay Two Hundred Thousand Dollars ($200,000) to City to defray all or a portion of the
costs to be incurred by City in connection with the construction and installation of City
entrance monuments at Rohnert Park Expressway and Highway 101 and at the
intersection of Rohnert Park Expressway and Petaluma Hill Road. The amounts paid by
Developer for such City entrance monuments shall not be credited towards the PFFP Fees
payable by Developer as provided herein and in the PFFP, nor shall they be considered as
meeting any of Developer's park requirements under the Quimby Act (California
Government Code § 66477 et seq.).
Section 4.14 Detention Basin.
A. ENGEO Hydrologic Evaluation. The University District Specific
Plan Hydrologic Evaluation, including the hydrologic assessments for Copeland Creek
and Hinebaugh Creek, has been prepared by ENGEO dated August 2013 to evaluate the
existing hydrologic conditions affecting the UDLLC Property and the Vast Oak Property
(the "ENGEO Hydrologic Evaluation "). The City Engineer approved the ENGEO
Hydrologic Evaluation for use in assessing the existing drainage conditions.
B. Temporary UDLLC Detention Basin. Concurrent with the first
phase of development within the Vast Oak Property or the UDLLC property, including
grading, Developer shall install a temporary detention basin (the "Temporary UDLLC
Detention Basin ") within the UDLLC property. The basin shall be designed to detain
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existing overflows from Copeland Creek, directly from the creek and via Sonoma State
University and the Green Music Center, so that current overflows across the Vast Oak
property are eliminated and flows in Rohnert Park Expressway are reduced to no greater
than One Hundred and Eighty (180) cubic feet per second (cfs). The size of the basin is
estimated at approximately Ten (10) acres. The basin shall be sized to accommodate
runoff from the remainder of the UDLLC property in a fully- developed condition. The
Temporary UDLLC Detention Basin shall provide detention until such time as the
upstream Copeland Creek Detention Basin located on the Anderson 53 Property is
completed (the "Regional Detention Basin "). Developer shall grant the City a drainage
easement over the Temporary UDLLC Detention Basin in a form and manner acceptable
to City. Operation and maintenance of the Temporary UDLLC Detention Basin shall be
as described in Section 4.07, Financing Mechanisms for Private Improvements.
C. Regional Detention Basin. Developer agrees to cooperate with the
City and the Sonoma County Water Agency (SCWA) in the development and
construction of a permanent Regional Detention Basin on the Anderson 53 Property.
Developer agrees to contribute funds in an amount of $2,470,731 for construction of a
permanent basin on the Anderson 53 property, of a design and size to provide similar
detention benefits as the Temporary UDLLC Detention Basin, subject to the City and
SCWA completing a design and securing the needed resource agency permits for the
basin construction. The City and SCWA shall have the right to utilize additional funds
that may become available to construct a larger permanent basin. Upon completion of a
Regional Detention Basin of adequate design and size to replace the Temporary UDLLC
Detention Basin, the City shall quitclaim its drainage easement over the Temporary
UDLLC Detention Basin and Developer will have no obligation for ongoing operation
and maintenance of the Regional Detention Basin.
D. PFFP Copeland Detention Basin Fee Credit. In the event
Developer contributes funds for the construction of the Regional Detention Basin on the
Anderson 53 Property, and the Regional Detention Basin is actually constructed and
operational, Developer shall be eligible for Copeland Detention Basin Fee Credits in the
amount of actual costs expended by Developer (supported by documentation and
invoices) contributed for construction, to a maximum of $2,470,731 (Two - Million, Four
Hundred and Seventy Thousand, Seven Hundred and Thirty -One Dollars and Zero
Cents).
E. Pei 'anent UDLLC Detention Basin. In the event that the City and
SCWA have been unable to complete design, secure permits, and otherwise remove
obstacles to the completion of the Regional Detention Basin during the term of this
Amended and Restated Agreement and any extensions granted by City to Developer, City
and Developer may designate the Temporary UDLLC Detention Basin as the Permanent
UDLLC Detention Basin. The developer will be eligible for Copeland Creek Detention
Basin Fee Crcdits in the amount described in paragraph D, above. The terms of this
Section 4.14 of this Amended and Restated Agreement shall remain in force and effect.
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Section 4.15 Acquisition of Land Owned by Third Parties. In any instance
where Developer is required or elects to construct any PFFP or public improvement on
land not owned by Developer, Developer, at its sole cost and expense, subject to the
potential PFFP reimbursement as provided in Section 4.03 above, shall acquire or fund
the acquisition of, the real property interests necessary for the construction of such public
improvements. If requested by Developer, where the affected property owner has
rejected an offer by Developer based upon market value as determined by an appraisal
prepared by a City approved appraiser in cooperation with City, and upon Developer's
provision of adequate funding, City shall promptly and timely negotiate and seek the
purchase of the necessary real property interests to allow Developer to construct the
public improvements as required by the Project Approvals. Under these circumstances,
in accordance with the procedures established by law, including Government Code
Section 664615(a), requiring approval of a final map where neither the subdivider nor
public agency has an interest in land sufficient to allow offsitc improvements to be
constructed or installed where City fails to acquire the necessary property interests by
negotiation, City shall consider use of its power of eminent domain to acquire such real
property interests. Developer shall pay all costs associated with such acquisition or
condemnation proceedings. Nothing herein is intended to or shall prejudge or commit
City regarding any findings and determinations required to be made in connection with
adoption of a resolution of necessity. Should City elect not to proceed with
condemnation, Developer may proceed with development of the Project as if it had
constructed such PFFP or public improvements on land not owned by Developer.
Section 4.16 Reimbursement of Specific Plan Costs. Developer represents and
warrants that prior to the Effective Date, Developer has incurred a total of approximately
$3,500,000.00 in planning, consultant, legal and City fees and costs in connection with
the preparation and processing of the Specific Plan, including without limitation the
Specific Plan EIR, the PFFP, the MAF and defending the General Plan and Water Supply
Assessment, the Potable Water Tank, and all related City approvals necessary for the
implementation of the Specific Plan (collectively, "Specific Plan Processing Costs ").
For so long as the Specific Plan, as it may be amended from time to time, remains in
effect, City agrees to use good faith, diligent efforts to cause the owners and /or
developers of Additional Parcels, upon development of such properties, to reimburse
Developer for their fair share (determined by land area) of the Specific Plan Processing
Costs and their fair share (determined by land area) of Developer's actual out -of- pocket
costs of designing and installing water tank as provided in Section 4.10, above.
Developer shall indemnify, defend and hold City harmless in connection with any claims
brought by such developers challenging the validity of such Specific Plan and /or water
tank reimbursement charges. City shall have no obligation to pay or reimburse
Developer for any portion of the Specific Plan Processing Costs or water tank design and
installation costs.
Section 4.17 Cit 's 0 )tion to Co rgi Mete Off-Site Public tin` rovemcnta. City, at
its sole option may construct all or a portion of the off -site public improvements required
to be constructed by Developer under this Amended and Restated Agreement, including
all or a portion of the Rohnert Park Expressway and Keiser Avenue improvements, at
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dates earlier than those contemplated by this Amended and Restated Agreement,
provided, however, any such work must be commenced by City prior to commencement
by Developer. If City opts to construct one or more of such off -site public
improvements, Developer shall (i) dedicate to City the necessary right of way (without
any PFFP Fee credit) for such improvements, (ii) pay all of City's out -of- pocket costs
and expenses, including attorney's fees and appraiser and other expert witness costs,
incurred in connection with the acquisition of necessary right of way from other Specific
Plan area property owners, and (iii) pay to City, within thirty (30) days following City's
request, the full amount needed to complete such off -site public improvements at the
amounts described in the approved PFFP. Developer shall be entitled to receive a credit
towards PFFP Fees otherwise payable by Developer for all funds paid under clause (iii)
above and, to the extent Developer funds the cost of third party right of way acquisitions
as provided in clause (ii) above, Developer shall be eligible for potential reimbursement
of such right of way acquisition costs as provided in Section 4.03.C., above. If City opts
to construct all or a portion of one or more off -site public improvements, Developer,
subject to satisfaction of its obligations under clauses (i), (ii) and (iii) above, may proceed
with development of the Project as if Developer had provided the off -site public
improvement to be constructed by City.
ARTICLE 5. DEVELOPMENT STANDARDS AND REQUIREMENTS
Section 5.01 Compliance with State and Federal Law. Developer, at its sole
cost and expense, shall comply with requirements of, and obtain all permits and
approvals required by, regional, State and Federal agencies having jurisdiction over the
Project.
Section 5.02 Prevailing Wage Requirements.
A. Developer acknowledges and agrees that all public improvements
paid for directly or indirectly with the proceeds of CFD Bonds or other public funds will
constitute construction, alteration, demolition, installation, or repair work done under
contract and paid for in whole or in part out of public funds as provided under California
Labor Code Section 1720. Accordingly, Developer shall comply with, and cause its
contractors and subcontractors to comply with, all State Labor Code requirements and
implementing regulations of the Department of Industrial Relations pertaining to "public
works," including the payment of prevailing wages in connection with development of
the Project (collectively, "Prevailing Wage Laws "). Developer shall require the
contractor for the Project or any portion thereof involving any such publicly financed
improvements, to submit, upon request by City or County, as applicable, certified copies
of payroll records to City, and to maintain and make records available to City and its
designees for inspection and copying to ensure compliance with Prevailing Wage Laws.
Developer shall also include in each of its contractor agreements, a provision in fbiui
acceptable to City, obligating the contractor to require its contractors and /or
subcontractors to comply with Prevailing Wage Laws, and to submit, upon request by
City, certified copies of payroll records to City and to maintain and make such payroll
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records available to City and its designees for inspection and copying during regular
business hours at the Property or at another location within City.
B. Developer shall defend (with counsel reasonably acceptable to the
City), indemnify, assume all responsibility for, and hold harmless City and its officers,
officials, employees, volunteers, agents and representatives from and against any and all
present and future liabilities, obligations, orders, claims, damages, fines, penalties and
expenses (including attorneys' fees and costs) arising out of or in any way connected with
Developer's or its contractors' obligations to comply with all Prevailing Wage Laws,
including all claims that may be made by contractors, subcontractors or other third party
claimants pursuant to Labor Code sections 1726 and 1781.
Section 5.03 Green Building and Smart Growth. Developer shall cooperate and
work with City to establish "green" (i.e., environmentally sensitive) and "smart growth"
development standards and requirements in accordance with the General Plan and
Specific Plan, sufficient to ensure that (i) all single - family detached units will achieve a
minimum of 100 points, (ii) all single - family attached units will achieve a minimum of
90 points, and (iii) all multifamily units shall achieve a minimum of 80 points under the
"Build It Green 2005 Edition of the New Home Construction Green Building Guidelines"
adopted by the City Council on March 14, 2006 by Resolution 2006 -67. Such standards
and requirements shall address issues including sustainable site planning, safeguarding
water quality and water efficiency, optimizing energy performance, conserving and
recycling materials and resources, and improving indoor environmental quality. Each of
the above specified minimum point requirements shall include a minimum of 10 points
for recycled water, community and innovation credits. In addition, Developer or its
successor with respect to the Mixed -Use Commercial Center shall cooperate with City to
develop green building standards for the Mixed -Use Commercial Center commercial and
mixed -use buildings, which shall be incorporated into the development area plan for the
Mixed -Use Commercial Center. The Mixed -Use Commercial Center development area
plan shall be subject to review and approval by the City Council in its reasonable
discretion.
Section 5.04 Intentionally Omitted,
Section 5.05 Intentionally Omitted.
Section 5.06 Sales Tax Point of Sale Designation. Developer shall use good
faith efforts to require all persons and entities providing bulk lumber, concrete, structural
steel and pre - fabricated building components, such as roof trusses, to be used in
connection with the construction and development of, or incorporated into, the Project, to
designate City as the sole point -of -sale for purposes of computing sales taxes due under
the Bradley -Burns Uniform Local Sales and Use Tax Law (California Revenue and
Taxation Code sections 7200 et seq. and implementing regulations) on the sale of such
bulk construction and building materials and components.
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Section 5.07 Affordable Housing Plan. Developer shall comply with the
provisions of the Affordable Housing Plan for the Project, attached hereto as Exhibit D
( "Affordable Housing Plan "). Developer's compliance with all provisions of the
Affordable Housing Plan shall be deemed to satisfy Developer's obligations under the
City's inclusionary zoning ordinance (City Municipal Code section 17.07.020(N)).
Section 5.08 Intentionally Omitted.
Section 5.09 Mixed -Use Commercial Center,
A. In conjunction with the construction of the north side of Rohnert
Park Expressway improvements further described above in Section 4.09 of this Amended
and Restated Agreement, Developer shall design and construct all necessary utilities to
serve the Mixed -Use Commercial Center pad, as approved by the City Engineer, shall
stub all utilities to the edge of the Mixed -Use Commercial Center pad, and shall sheet
grade the Mixed -Use Commercial Center pad.
B. The timing of the design, agency processing and development of
the Mixed -Use Commercial Center shall be solely determined by the Developer, based
upon actual market conditions.
C. In the event that Developer has not commenced construction of the
Mixed -Use Commercial Center within five (5) years of the Effective Date, Developer
shall deliver a written report to the Community Development Director describing the
status of Developer's reasonable good faith efforts to market the Mixed -Use Commercial
Center. The Developer shall provide this written report by April of 2019 and annually
thereafter.
D. Developer's obligations related to the Mixed -Use Commercial
Center as set forth in this Section 5.09 shall be independent of any other Project
obligation and shall not in any way affect City's issuance of residential building permits
for any portion of the Project.
E. Prior to recordation of the final map which encompasses the
Mixed -Use Commercial Center, or portion thereof, Developer shall prepare and submit
proposed conditions, covenants and restrictions ( "CC &Rs ") for the Mixed -Use
Commercial Center to the City Manager or his or her designee for his or her review and
reasonable approval to ensure such CC &Rs are consistent with this Amended and
Restated Agreement and the Project Approvals.
ARTICLE 6. MORTGAGEE PROTECTION
Section 6.01 Mortgagee Protection. This Amended and Restated Agreement
shall be superior and senior to any lien placed upon the Property or any portion thereof
after the date of recording the Amended and Restated Agreement, including the lien of
any deed of trust or mortgage ( "Mortgage "). Notwithstanding the foregoing, no breach
hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in
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good faith and for value, but all of the terms and conditions contained in this Amended
and Restated Agreement shall be binding upon and effective against and shall run to the
benefit of any person or entity, including any deed of trust beneficiary or mortgagee
( "Mortgagee "), who acquires title or possession to the Property, or any portion thereof,
by foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise.
Section 6.02 Mortgagee Not Obligated. Notwithstanding the provisions of
Section 6.01 above, no Mortgagee shall have any obligation or duty under this Amended
and Restated Agreement to construct or complete the construction of improvements, or to
guarantee such construction or completion; provided, however, that a Mortgagee shall not
be entitled to devote the Property to any use except in full compliance with the Project
Approvals nor to construct any improvements thereon or institute any uses other than
those uses or improvements provided for or authorized by the Amended and Restated
Agreement, or otherwise under the Project Approvals.
Section 6.03 Notice of Default to Mortgagee. If City receives a notice from a
Mortgagee requesting a copy of any notice of default given Developer hereunder and
specifying the address for service thereof, then City agrees to use its best efforts to
deliver to such Mortgagee, concurrently with service thereon to Developer, any notice
given to Developer with respect to any claim by City that Developer has committed an
event of default, and if City makes a determination of noncompliance hereunder, City
shall likewise use its best efforts to serve notice of such noncompliance on such
Mortgagee concurrently with service thereon on Developer. Each Mortgagee shall have
the right during the same period available to Developer to cure or remedy, or to
commence to cure or remedy, the event of default claimed or the areas of noncompliance
set forth in City's notice. If a Mortgagee shall be required to obtain possession in order
to cure any default, then vis -a -vis the Mortgagee, the time to cure shall be tolled so long
as the Mortgagee is attempting to obtain possession, including by appointment of a
receiver or foreclosure but in no event may this period exceed one hundred twenty (120)
days from the City's notice.
ARTICLE 7. COOPERATION AND IMPLEMENTATION
Section 7.01 Subsequent Project Approvals. Developer and City acknowledge
and agree that Developer intends to submit applications for Subsequent Project
Approvals, including both Subsequent Ministerial Approvals and Subsequent
Discretionary Approvals. In connection with any Subsequent Project Approval, the City
shall exercise its discretion in accordance with Applicable Law, the Project Approvals
and, as provided by this Amended and Restated Agreement, including the reservations of
authority set forth in Section 3.06.
A. Subsequent Ministerial Approvals ( "Subsequent Ministerial
Approvals ") are permits or approvals that are required by Applicable Law and that are to
be issued upon compliance with uniform, objective standards and regulations. They
include applications for road construction permits or authorizations; grading and
excavation permits; building permits, including electrical, plumbing, mechanical, Title 24
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Electrical, and Title 24 Handicap permits or approvals; certificates of occupancy;
encroachment permits; water connection permits; and any other similar permits required
for the development and operation of the Project.
B. All other Subsequent Project Approvals, including amendments of
the Project Approvals, site development plan or development area plan approvals,
Commercial Center development area plan, improvement agreements, architectural
review permits, use permits, lot line adjustments, subdivision maps, preliminary and final
development plans, rezonings, development agreements, permits that are not Subsequent
Ministerial Approvals, resubdivisions, and any amendments to, or repealing of, any of the
foregoing, are Subsequent Discretionary Approvals ( "Subsequent Discretionary
Approvals ").
Section 7.02 Processing Applications for Subsequent Project Approvals.
A. Developer acknowledges that City cannot begin processing
applications for Subsequent Project Approvals until Developer submits complete
applications on a timely basis. Developer shall use its best efforts to (i) provide to City in
a timely manner any and all documents, applications, plans, and other information
necessary for City to carry out its obligations hereunder; and (ii) cause Developer's
planners, engineers, and all other consultants to provide to City in a timely manner all
such documents, applications, plans and other materials required under Applicable Law.
It is the express intent of Developer and City to cooperate and diligently work to obtain
any and all Subsequent Project Approvals.
B. Upon submission by Developer of all appropriate applications and
processing fees for any pending Subsequent Project Approval, City shall, to the full
extent allowed by law, promptly and diligently, subject to City ordinances, policies and
procedures regarding hiring and contracting, commence and complete all steps necessary
to act on Developer's currently pending Subsequent Project Approval applications
including: (i) providing at Developer's expense and subject to Developer's request and
prior approval, reasonable overtime staff assistance, additional staff and /or staff
consultants for concurrent, expedited planning and processing of each pending
Subsequent Project Approval application; (ii) if legally required, providing notice and
holding public hearings; and (iii) acting on any such pending Subsequent Project
Approval application.
C. With the Existing Project Approvals, City has made a final policy
decision that the Project is in the best interests of the public health, safety and general
welfare. Applications for Subsequent Ministerial Approvals that are consistent with this
Amended and Restated Agreement and the Existing Project Approvals shall be processed
and considered in a manner consistent with the vested rights granted by this Amended
and Restated Agreement and shall be deemed to be tools to implement those final policy
decisions, and shall be approved by City so long as they are consistent with this Amended
and Restated Agreement and the Existing Project Approvals. While City expressly
reserves its discretion with respect to all Subsequent Discretionary Approvals, City
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agrees that it shall not use its authority in considering any application for a Subsequent
Discretionary Approval to change the policy decisions reflected by the Existing Project
Approvals or otherwise to prevent or frustrate the further development of the Project as
set forth in the Existing Project Approvals.
D. Nothing herein shall limit the ability of City to require the
necessary reports, analysis or studies to assist in determining that the requested
Subsequent Ministerial Approval is consistent with this Amended and Restated
Agreement and the Existing Project Approvals. If the City determines that an application
for a Subsequent Ministerial Approval is not consistent with this Amended and Restated
Agreement or the Existing Project Approvals and should be processed as an application
for a Subsequent Discretionary Approval rather than a Subsequent Ministerial Approval,
the City shall specify in writing the reasons for such determination and may propose a
modification which would be processed as a Subsequent Ministerial Approval.
Developer shall then either modify the application to conform to this Amended and
Restated Agreement and the Existing Project Approvals, as the case may be, or the City
shall process the application as an application for a Subsequent Discretionary Approval;
provided, however, that Developer shall have the right to dispute the City's determination
pursuant to Section 9.08 hereof.
E. City shall process Developer's applications for Subsequent Project
Approvals to the fullest extent allowed by Applicable Law and Developer may proceed
with Subsequent Project Approvals as provided for herein to the fullest extent allowed by
Applicable Law.
Section 7.03 Administration of Subsequent Project Approvals.
A. Subsequent Ministerial Approvals shall be reviewed and processed
by the City in accordance with Applicable Law. If the City denies any application for a
Subsequent Ministerial Approval, the City must specify in writing the reasons for such
denial and may suggest a modification which would be approved. Any such specified
modifications must be consistent with the Existing Project Approvals and Applicable
Law, and the City shall approve the application if it is subsequently resubmitted for City
review and addresses the reason for the denial in a manner that is consistent with this
Amended and Restated Agreement, the Project Approvals and Applicable Law.
B. Applications for Subsequent Discretionary Approvals shall be
reviewed and processed by the City in accordance with Applicable Law. If the City
denies any application fbr a Subsequent Discretionary Approval, the City must specify in
writing the reasons for such denial and may suggest a modification which would be
approved. Any such specified modifications must be consistent with this Amended and
Restated Agreement and Applicable Law, and the City shall consider the application if it
is subsequently resubmitted for the City review and addresses the reason for the denial in
a manner that is consistent with this Amended and Restated Agreement, the Project
Approvals and Applicable Law.
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Section 7.04 Changes and Amendments to Project Approvals.
A. Given the long term build -out of the Project, the Parties
acknowledge that modifications or amendments to the Project Approvals may be
appropriate and mutually desirable. To the extent permitted by Applicable Law, any
Project Approval may, from time to time, be amended or modified in the following
manner:
(1) Upon the written request of Developer for an amendment
or modification to a Project Approval, the Community Development Director or his /her
designee shall determine: (i) whether the requested amendment or modification is minor
when considered in light of the Project as a whole; and (ii) whether the requested
amendment or modification is consistent with this Amended and Restated Agreement and
Applicable Law. If the Community Development Director or his /her designee finds that
the proposed amendment or modification is minor, consistent with this Amended and
Restated Agreement and Applicable Law, and will result in no new significant impacts
not addressed and mitigated in the EIR, the amendment shall be determined to be an
"Administrative Project Amendment" and the Community Development Director or
his /her designee may approve the Administrative Project Amendment consistent with
City's procedures for such administrative actions, including any requirements for notice,
public hearing and appeal rights. Without limiting the generality of the foregoing, lot line
adjustments; reductions in the density, intensity, scale or scope of the Project that do not
affect either Developer's obligations to provide affordable housing or neighborhood
serving commercial /retail uses or change the scope of development from that
contemplated in this Amended and Restated Agreement; alterations in vehicle circulation
patterns or vehicle access points which do not adversely affect capacity or service levels;
substitutions of comparable landscaping for any landscaping shown on any final
development plan or landscape plan; variations in the location of structures that do not
substantially alter the design concepts of the Project; variations in the location or
installation of utilities and other infrastructure connections or facilities that do not
substantially alter the design concepts of the Project; and minor adjustments to the
Property or legal description of subdivision limits or lots shall be treated as
Administrative Project Amendments.
(2) Any request of Developer for an amendment or
modification to a Project Approval which is determined by the Community Development
Director or his /her designee not to be an Administrative Project Amendment as set forth
above shall be deemed a "Non- administrative Project Amendment" and shall be subject
to review, consideration and action pursuant to the Project Approvals, Applicable Law
and this Amended and Restated Agreement, as applicable.
(3) Neither Administrative nor Non - administrative Project
Amendments shall require an amendment to this Amended and Restated Agreement.
B. Parcel Adjustments; Approval of Phased Final Maps. City and
Developer acknowledge that as the development of the Project proceeds, it may be
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necessary to adjust the configuration of subdivision lots as shown on the UD Tentative
Map(s) or the VO Tentative Map(s). City may, but shall not be required to, approve a
final map for which individual parcels have been reconfigured by making the finding
required pursuant to the Subdivision Map Act that a proposed final map is in substantial
conformity with an approved tentative map, if such proposed final map meets the spirit
and intent of the Project Approvals, and provided that any such reconfiguration does not
increase the number of lots or units by an amount inconsistent with the requirements of
the Subdivision Map Act, Applicable Law or this Amended and Restated Agreement.
City may make a finding of substantial conformity under this Section 7.04B, even though
the boundaries of individual lots or units are adjusted or lots or units are combined,
provided that City has approved such adjustment or other modification.
Section 7.05 Other Government Permits. City shall cooperate with Developer,
to the extent appropriate and as permitted by law, in Developer's efforts to obtain, as may
be required, permits and approvals from other governmental or quasi - governmental
entities.
Section 7.06 Mitigation Measures. Developer and City shall comply with the
MMRP as it applies to the Project.
Section 7.07 Cooperation in the Event of Legal Challenge.
A. City and Developer, at Developer's sole cost and expense, shall
cooperate in the event of any court action instituted by a third party or other
governmental entity or official challenging the validity of any provision of this Amended
and Restated Agreement, any Existing Project Approvals or any Subsequent Project
Approvals and City shall, upon request of Developer, appear in the action and defend its
decision, except that City shall not be required to be an advocate for Developer. To the
extent that Developer determines to contest or defend such litigation challenges,
Developer shall reimburse City, within ten (10) days following City's written demand
therefor, which may be made from time to time during the course of such litigation, all
costs incurred by City in connection with the litigation challenge, including City's
administrative, legal and court costs, provided that City shall either: (a) elect to joint
representation by Developer's counsel; or (b) retain an experienced litigation attorney,
require such attorney to prepare and comply with a litigation budget, and present such
litigation budget to Developer prior to incurring obligations to pay legal fees in excess of
$30,000. If Developer defends any such legal challenge, Developer shall indemnify,
defend, and hold harmless City and its officials and employees from and against any
claims, losses, or liabilities assessed or awarded against City by way of judgment,
settlement, or stipulation. Nothing herein shall authorize Developer to settle such legal
challenge on terms that would constitute an amendment or modification of this Amended
and Restated Agreement, any Existing Project Approvals or any Subsequent Project
Approvals, unless such amendment or modification is approved by City in accordance
with applicable legal requirements, and City reserves its full legislative discretion with
respect thereto.
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B. In addition, City shall have the right, but not the obligation, to
contest or defend such litigation challenges, in the event that Developer elects not to do
so. If City elects to contest or defend such litigation challenges, Developer shall bear all
related costs and expenses, including City's attorney fees, up to a maximum amount of
One Hundred Thousand Dollars ($100,000), and, in addition, shall indemnify, defend,
and hold harmless City and its officials and employees from and against any claims,
losses, or liabilities assessed or awarded against City by way of judgment, settlement, or
stipulation, without regard to the above dollar amount cap.
ARTICLE 8. ASSIGNMENT, TRANSFER AND NOTICE
Section 8.01 Assignment. No sale, transfer or assignment of all or a portion of
the Property, or creation of a joint venture or partnership, shall require the amendment of
this Amended and Restated Agreement.
Section 8.02 Right to Assign.
A. Because of the necessity to coordinate development of the entirety
of the Property pursuant to the Specific Plan, particularly with respect to the provision of
on- and off -site public improvements and public services, certain restrictions on the right
of Developer to assign or transfer its interest under this Amended and Restated
Agreement with respect to the Property, or any portion thereof, are necessary in order to
assure the achievement of the goals, objectives and public benefits of the Specific Plan
and this Amended and Restated Agreement. Developer agrees to and accepts the
restrictions set forth in this Section 8.02 as reasonable and as a material inducement to
City to enter into this Amended and Restated Agreement. For purposes of this Section
8.02, a change in the identity of the initial managing member of UD, or the initial
managing member of VO, (including the sale or transfer, in the aggregate, of the
controlling stock or interest in said managing member) shall be deemed a transfer by
Developer subject to the provisions of this Section. Developer shall have the right to sell,
transfer, ground lease or assign the Property in whole or in part (provided that no such
partial transfer shall violate the provisions of the Subdivision Map Act) to any person,
partnership, joint venture, firm, company or corporation (any of the foregoing, an
"Assignee ") subject to the written consent of City; provided that Developer may assign
its rights and obligations under this Amended and Restated Agreement without the
consent of City to any corporation, limited liability company, partnership or other entity
which is controlling of, controlled by, or under common control with UD and /or VO, and
"control," for purposes of this definition, means effective management and control of the
other entity, subject only to major events requiring the consent or approval of the other
owners of such entity ( "Affiliated Party "). City's consent shall not be unreasonably
withheld, delayed or conditioned, and City shall consent if the Assignee reasonably
demonstrates to City that it is able to perform the obligations of Developer under this
Amended and Restated Agreement. Assignee shall succeed to the rights, duties and
obligations of Developer only with respect to the parcel or parcels of all or a portion of
the Property so purchased, transferred, ground leased or assigned, and Developer shall
continue to be obligated under this Amended and Restated Agreement with respect to all
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portions of the Property retained by Developer, and with respect to the dedication and
installation of all infrastructure improvements to be provided by Developer, pursuant to
the Project Approvals, and the PFFP.
B. The sale, transfer, lease or assignment of any right or interest under
this Amended and Restated Agreement shall be made only together with the sale,
transfer, ground lease or assignment of all or a part of the Property. Concurrently with
any such sale, transfer, ground lease or assignment, Developer shall (i) notify City in
writing of such sale, transfer or ground lease; and (ii) Developer and Assignee shall
provide a written assignment and assumption agreement in form reasonably acceptable to
the City Attorney (Assignment and Assumption Agreement ") pursuant to which Assignee
shall assume and succeed to the rights, duties and obligations of Developer with respect
to the parcel or parcels of all or a portion of the Property so purchased, transferred,
ground leased or assigned. Developer also agrees that any Assignment and Assumption
Agreement shall set forth the total number of residential building permits allocated under
the City's Growth Management Ordinance and the sewer and water capacity allocated to
the number of EDUs covered by the Assignment and Assumption Agreement.
Developer's notification to City of a sale, transfer, lease or assignment shall specify (1)
the total number of residential building permits which are allocated under the City's
Growth Management Ordinance for the portion of the Property subject to such sale,
transfer, lease or assignment, (2) the sewer capacity and water capacity allocated to the
number of EDUs covered by such for the portion of the Property subject to such sale,
transfer, lease or assignment, and 3) Evidence that Developer has brought current any and
all maintenance assessments, including HOA fees on a per unit basis.
C. Subject to City's written consent as provided in subsection 8.02.A.,
City, upon request of Developer or Assignee, and following compliance with the
notification provisions above, shall provide Assignee with a certificate of agreement
compliance, stating that this Amended and Restated Agreement remains valid and in full
force and effect and is binding upon City, Developer and the Assignee as of the last
Annual Review pursuant to the provisions of Section 9.05, except that if City knows of
any non - compliance, City shall not be required to issue a certificate of agreement
compliance.
Section 8.03 Release of Transferring Developer. Except with respect to a
Permitted transfer and assignment under Section 8.02 to an Affiliated Party,
notwithstanding any sale, transfer or assignment of all or a portion of the Property,
Developer shall continue to be obligated under this Amended and Restated Agreement as
to all or the portion of the Property so transferred unless City is satisfied the Assignee is
fully able to comply with Developer's obligations under this Amended and Restated
Agreement (both financially and otherwise) and Developer is given a release in writing.
Developer shall provide to City all information reasonably necessary for City to
deteimine the financial and other capabilities of Assignee. Such release shall be provided
by City upon Developer's full satisfaction of all of the following conditions:
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A. City is reasonably satisfied that Assignee is fully able to comply
with Developer's obligations under this Amended and Restated Agreement (both
financially and otherwise).
B. A showing by Developer that Developer no longer has a legal or
equitable interest in the portion of the Property (which may be all of the Property) for
which a release is requested.
C. Developer is not then in Default under this Amended and Restated
Agreement and has received no Notice to Cure.
D. Developer has provided City with notice and the fully executed
assignment and assumption agreement.
E. Assignee provides City with security equivalent to any security
previously provided by Developer to secure performance of its obligations hereunder, if
any.
Notwithstanding any other provision hereof to the contrary, if Developer
only transfers a portion of the Property, then Developer shall continue to be obligated
under this Amended and Restated Agreement with respect to the balance of the Property
not so transferred.
ARTICLE 9. DEFAULT; REMEDIES; TERMINATION
Section 9.01 Breach. Subject to extensions of time under Section 9.06 or by
mutual consent in writing, the failure or delay by either Party to perform any term or
provision of this Amended and Restated Agreement shall constitute a breach of this
Amended and Restated Agreement. In the event of alleged breach of any terms or
conditions of this Amended and Restated Agreement, the Party alleging such breach shall
give the other Party notice in writing specifying the nature of the breach and the manner
in which said breach or default may be satisfactorily cured, and the Party in breach shall
have thirty (30) days following such notice ( "Cure Period ") to cure such breach, except
that in the event of a breach of an obligation to make a payment, the Party in breach shall
have ten (10) days to cure the breach. If the breach is of a type that cannot be cured
within thirty (30) days, the breaching Party shall, within a thirty (30) day period
following notice to the non- breaching Party, notify the non - breaching Party of the time it
will take to cure such breach which shall be a reasonable period under the circumstances
( "Extended Cure Period "); commence to cure such breach; and be proceeding diligently
to cure such breach. Subject to the provisions of Section 9.06, the Extended Cure Period
shall in no event exceed one hundred twenty (120) days unless otherwise agreed by the
parties. During the Cure Period or Extended Cure Period, the Party charged shall not be
considered in default for purposes of termination or institution of legal proceedings; but
the City's right to refuse to issue a permit or Subsequent Project Approval, under Section
9.03, shall not be limited by this provision. The failure of any Party to give notice of any
breach shall not be deemed to be a waiver of that Party's right to allege any other breach
at any other time.
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Section 9.02 Default. If the breaching Party has not cured such breach within
the Cure Period or the Extended Cure Period, if any, such Party shall be in default
( "Default "), and the non - breaching Party, at its option, may terminate the Amended and
Restated Agreement, institute legal proceedings pursuant to this Amended and Restated
Agn-eement and shall have such remedies as are set forth in Section 9.04 below.
Section 9.03 Withholding of Permits. In the event of a Default by Developer, or
following notice of breach by Developer and during the Cure Period or Extended Cure
Period, upon a finding by the City Planning Director that Developer is in serious and
substantial breach, City shall have the right to refuse to issue any permits or other
approvals to which Developer would otherwise have been entitled pursuant to this
Amended and Restated Agreement. This provision is in addition to and shall not limit
any actions that City may take to enforce the conditions of the Project Approvals.
Section 9.04 Remedies.
A. In the event of a Default by City or Developer, the non - defaulting
Party shall have the right to terminate this Amended and Restated Agreement upon
giving notice of intent to terminate pursuant to Government Code Section 65868 and
regulations of City implementing such section. Following notice of intent to terminate,
the matter shall be scheduled for consideration and review in the manner set forth in
Government Code Section 65867 and City regulations implementing said section.
Following consideration of the evidence presented in said review before the City Council,
either Party alleging Default by the other Party may give written notice of termination of
this Amended and Restated Agreement to the other Party. Termination of this Amended
and Restated Agreement shall be subject to the provisions of Section 9.09 hereof.
B. City and Developer agree that in the event of Default by City, the
Parties intend that the primary remedy for Developer shall be specific performance of this
Amended and Restated Agreement. A claim by Developer for actual monetary damages
against City may only be considered if specific performance is not granted by the Court.
In no event shall Developer be entitled to any consequential punitive or special damages.
If City issues an Approval pursuant to this Amended and Restated Agreement in reliance
upon a specified condition being satisfied by Developer in the future, and if Developer
then fails to satisfy such condition, City shall be entitled to specific performance for the
purpose of causing Developer to satisfy such condition.
C. In addition to any other rights or remedies, either Party may
institute legal action to cure, correct or remedy any Default, to enforce any covenants or
agreements herein, to enjoin any threatened or attempted violation hereof, or to obtain
any other remedies consistent with the purpose of this Amended and Restated Agreement
except as limited by subsection 9.04.B. above. Any such legal action shall be brought in
the Superior Court for Sonoma County, California.
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Section 9.05 Periodic Review.
A. The annual review date for this Amended and Restated Agreement
shall be initiated during the month of September of each year of the Term of this
Amended and Restated Agreement, commencing with , 2014. Developer shall
initiate the annual review required by City Municipal Code, Section 17.21.050, by
submitting a written request at least sixty (60) days prior to the Community Development
Director. Developer shall also provide evidence as determined necessary by the Director
to demonstrate good faith compliance with the provisions of this Amended and Restated
Agreement. However, failure to initiate the annual review within thirty (30) days of
receipt of written notice to do so from City shall not constitute a Default by Developer
under this Amended and Restated Agreement, unless City has provided actual notice and
opportunity to cure and Developer has failed to so cure.
B. The annual review required by Government Code section 65865.1
and the City Municipal Code shall be conducted as provided herein:
(1) The Community Development Director shall review
Developer's submission to ascertain whether Developer has complied in good faith with
the terms of this Amended and Restated Agreement. If the Director finds good faith
compliance by Developer with the terms of this Amended and Restated Agreement, the
Director shall so notify Developer and the Planning Commission in writing and the
review for that period shall be concluded. If the Director is not satisfied that the
Developer is performing in accordance with the material terms and conditions of this
Amended and Restated Agreement, the Director shall refer the matter to the Planning
Commission for a decision and notify Developer in writing at least ten (10) days in
advance of the time at which the matter will be considered by the Planning Commission.
(2) The Planning Commission shall conduct a hearing at which
Developer must submit evidence that it has complied in good faith with the terms and
conditions of this Amended and Restated Agreement. The findings of the Planning
Commission on whether Developer has complied with this Amended and Restated
Agreement for the period under review shall be based upon substantial evidence in the
record. If the Planning Commission determines that, based upon substantial evidence,
Developer has complied in good faith with the terms and conditions of this Amended and
Restated Agreement, the review for that period shall be concluded. If the Planning
Commission determines that, based upon substantial evidence, Developer has not
complied in good faith with the terms and conditions of this Amended and Restated
Agreement, the Planning Commission shall forward its report and recommendation to the
City Council.
(3) The City Council shall notify the Developer in writing of
its intention to conduct a hearing on whether Developer has complied in good faith with
the terms and conditions of this Amended and Restated Agreement and whether the
Amended and Restated Agreement should be modified or terminated. The notice shall
include the time and place of the hearing, a copy of the Planning Commission's report
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OAK 44818- 9576 -2200 v6
and recommendation, and any other information the City Council considers necessary to
inform Developer of the nature of the proceeding. Developer shall be given an
opportunity to be heard at the hearing. If the City Council determines that Developer has
complied in good faith with the terms and conditions of this Amended and Restated
Agreement, the review for that period shall be concluded. If, however, the City Council
determines, based upon substantial evidence in the record, that there are significant
questions as to whether Developer has complied in good faith with the terms and
conditions of this Amended and Restated Agreement, the City Council may continue the
hearing and shall notify Developer of the City's intent to meet and confer with Developer
within thirty (30) days of such determination, prior to taking further action. Following
such meeting, the City Council shall resume the hearing in order to further consider the
matter and to make a determination, regarding Developer's good faith compliance with
the terms and conditions of the Amended and Restated Agreement and to take those
actions it deems appropriate, including but not limited to, termination of this Amended
and Restated Agreement, in accordance with California Government Code section
65865.1 and the City Municipal Code.
C. Failure of City to conduct an annual review shall not constitute a
waiver by the City of its rights to otherwise enforce the provisions of this Amended and
Restated Agreement nor shall Developer have or assert any defense to such enforcement
by reason of any such failure to conduct an annual review.
D. If, after an annual review, City finds Developer has complied in
good faith with this Amended and Restated Agreement, City shall promptly following
Developer's request issue to Developer a certificate of compliance certifying that
Developer has so complied through the period of the applicable annual review. The
Certificate of Compliance must be in recordable form and must contain such inforniation
as may be necessary to impart constructive notice of City's finding. Developer may
record the Certificate of Compliance in the Official Records of the County of Sonoma.
Section 9.06 Enforced Delay; Extension of Time of Performance. Subject to the
limitations set forth below, performance by either party hereunder shall not be deemed to
be in default, and all performance and other dates specified in this Amended and Restated
Agreement shall be extended, where delays are due to: war; insurrection; strikes;
lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public
enemy; epidemics; quarantine restrictions; freight embargoes; governmental restrictions
or priority; litigation; unusually severe weather; acts or omissions of the other Party; or
acts or failures to act of any other public or governmental agency or entity (other than the
acts or failures to act of City which shall not excuse performance by City). An extension
of time for any such cause shall be for the period of the enforced delay and shall
commence to run from the time of the commencement of the cause (but in any event shall
not exceed a cumulative total of three (3) years), if notice by the party claiming such
extension is sent to the other party within thirty (30) days of the commencement of the
cause. The Parties agree that the commencement of any litigation concerning this
Amended and Restated Agreement, the Ordinance approving this Amended and Restated
Agreement or any of the Existing Project Approvals shall constitute cause for an
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OAK 04818 -9576 -2200 v6
extension of time for performance of obligations under this Amended and Restated.
Agreement up to a maximum of three (3) years, and that the Initial Term of this Amended
and Restated Agreement shall be automatically extended for the period such litigation is
pending (subject, however, to the 3 year maximum extension), and that such litigation
extension shall not be included in the calculation of the three (3) year cumulative total
referenced in the immediately preceding sentence. Developer acknowledges that adverse
changes in economic conditions, either of Developer specifically or the economy
generally, changes in market conditions or demand, and /or inability to obtain financing or
other lack of funding to complete the work of on -site and off -site improvements shall not
constitute grounds of enforced delay pursuant to this Section 9.06. Developer expressly
assumes the risk of such adverse economic or market changes and /or financial inability,
whether or not foreseeable as of the Effective Date.
Section 9.07 Resolution of Disputes. With regard to any dispute involving the
Project, the resolution of which is not provided for by this Amended and Restated
Agreement or Applicable Law, Developer shall, at City's request, meet with City. The
parties to any such meetings shall attempt in good faith to resolve any such disputes.
Nothing in this Section 9.07 shall in any way be interpreted as requiring that Developer
and City and /or City's designee reach agreement with regard to those matters being
addressed, nor shall the outcome of these meetings be binding in any way on City or
Developer unless expressly agreed to by the parties to such meetings.
Section 9.08 Surviving Provisions. In the event this Amended and Restated
Agreement is terminated, neither party shall have any further rights or obligations
hereunder, except for those obligations of Developer set forth in Sections 5.02 (Prevailing
Wage), 7.07 (Cooperation in the Event of Legal Challenge), and 9.09 (Indemnify and
Hold Harmless).
Section 9.09 Indemnity and Hold Harmless. Developer shall indemnify and
hold City and its elected and appointed officers, agents, employees, and representatives
hai iuless from and against any and all claims, costs, liabilities and damages (including
attorneys' fees and costs) for any bodily injury, death, or property damage resulting
directly or indirectly from the approval or implementation of this Amended and Restated
Agreement the development and construction of the Project by or on behalf of Developer,
or from any operations performed under this Amended and Restated Agreement, whether
such operations were performed by Developer or any of Developer's contractors,
subcontractors, agents or employees, except to the extent such claims, costs and liabilities
arise from the active negligence or willful misconduct of City, its elected and appointed
officers, agents, employees, representatives, contactors or subcontractors.
ARTICLE 10. MISCELLANEOUS PROVISIONS
Section 10.01 Incorporation of Recitals and Introductory Paragraph. The
Recitals contained in this Amended and Restated Agreement, and the introductory
paragraph preceding the Recitals, are hereby incorporated into this Amended and
Restated Agreement as if fully set forth herein.
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Section 10.02 Findings. City hereby finds and determines that execution of this
Amended and Restated Agreement furthers public health, safety and general welfare and
that the provisions of this Amended and Restated Agreement are consistent with the
General Plan.
Section 10.03 Severability. If any term or provision of this Amended and
Restated Agreement, or the application of any term or provision of this Amended and
Restated 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 Amended
and Restated Agreement, or the application of this Amended and Restated Agreement to
other situations, shall continue in full force and effect unless amended or modified by
mutual consent of the parties. Notwithstanding the foregoing, if any material provision
of this Amended and Restated Agreement, or the application of such provision to a
particular situation, is held to be invalid, void or unenforceable, the party adversely
affected may (in its sole and absolute discretion) terminate this Amended and Restated
Agreement by providing written notice of such termination to the other party.
Section 10.04 Construction. Each reference in this Amended and Restated
Agreement to this Amended and Restated Agreement or any of the Existing Project
Approvals or Subsequent Ministerial or Discretionary Approvals shall be deemed to refer
to the Amended and Restated Agreement, Project Approval or Subsequent Ministerial or
Discretionary Approval as it may be amended from time to time, whether or not the
particular reference refers to such possible amendment. Section headings in this
Amended and Restated Agreement are for convenience only and are not intended to be
used in interpreting or construing the terms, covenants or conditions of this Amended and
Restated Agreement. This Amended and Restated Agreement has been reviewed and
revised by legal counsel for both City and Developer, and no presumption or rule that
ambiguities shall be construed against the drafting party shall apply to the interpretation
or enforcement of this Amended and Restated Agreement. Unless the context clearly
requires otherwise, (i) the plural and singular numbers shall each be deemed to include
the other; (ii) the masculine, feminine, and neuter genders shall each be deemed to
include the others; (iii) "shall," "will," or "agrees" are mandatory, and "may" is
permissive; (iv) "or" is not exclusive; (v) "include," "includes" and "including" are not
limiting and shall be construed as if followed by the words "without limitation," and (vi)
"days" means calendar days unless specifically provided otherwise.
Section 10.05 Joint and Several Obligations. The Parties intend that the UD LLC
Property and Vast Oak Property be developed as a physically integrated Project. In
recognition of such integration, UD and VO agree that they shall be jointly and severally
liable for all obligations of Developer under this Amended and Restated Agreement.
Section 10.06 Covenants Running with the Land. All of the provisions contained
in this Amended and Restated Agreement shall be binding upon the parties and their
respective heirs, successors and assigns, representatives, lessees, and all other persons
acquiring all or a portion of the Property or Project, or any interest therein, whether by
operation of law or in any manner whatsoever. All of the provisions contained in this
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Amended and Restated Agreement shall be enforceable as equitable servitudes and shall
constitute covenants running with the land pursuant to California law including
California Civil Code Section 1468. Each covenant herein to act or refrain from acting is
for the benefit of or a burden upon the Project, as appropriate, runs with the Property and
is binding upon the Developer of all or a portion of the Property and each successive
Developer during its development of such Property or portion thereof.
Section 10.07 Notices. Any notice or communication required hereunder
between City or Developer must be in writing, and may be given either personally, by
facsimile (with original forwarded by regular U.S. Mail), by registered or certified mail
(return receipt requested), or by Federal Express or other similar courier promising
overnight delivery. If personally delivered, a notice shall be deemed to have been given
when delivered to the party to whom it is addressed. If given by facsimile transmission, a
notice or communication shall be deemed to have been given and received upon actual
physical receipt of the entire document by the receiving party's facsimile machine.
Notices transmitted by facsimile after 5:00 p.m. on a normal business day or on a
Saturday, Sunday or holiday shall be deemed to have been given and received on the next
nolinal business day. If given by registered or certified mail, such notice or
communication shall be deemed to have been given and received on the first to occur of
(i) actual receipt by any of the addressees designated below as the party to whom notices
are to be sent, or (ii) five (5) days after a registered or certified letter containing such
notice, properly addressed, with postage prepaid, is deposited in the United States mail.
If given by Federal Express or similar courier, a notice or communication shall be
deemed to have been given and received on the date delivered as shown on a receipt
issued by the courier. Any party hereto may at any time, by giving ten (10) days written
notice to the other party hereto, designate any other address in substitution of the address
to which such notice or communication shall be given. Such notices or communications
shall be given to the parties at their addresses set forth below:
If to City:
And
OAK #4818- 9576 -2200 v6
City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928 -2486
Attention: City Manager
Tel: (707) 588 -2223
City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928 -2486
Attention: City Attorney
Tel: (707) 588 -2214
- 57 -
If to Developer:
And
With a copy to:
University District LLC
500 La Gonda Way, Suite 100
Danville, CA 94526
Attention: John Ryan
Kevin Pohlson
Tel: (925) 743 -8000
Quaker Hill Development Corp.
P.O. Box 2240
Healdsburg, CA 95448
Attention: Craig R. Harrington
Tel: (707) 431 -1780
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Attention: Alicia Guerra
Tel: (415) 402 -2707
Email: aguerra @briscoelaw.net
Section 10.08 Entire Agreement, Counterparts and Exhibits. This Amended and
Restated Agreement may be executed in multiple counterparts, each of which shall be
deemed to be an original. This Amended and Restated Agreement, together with the
attached Exhibits, constitutes the final and exclusive understanding and agreement of the
parties and supersedes all negotiations or previous agreements of the parties with respect
to all or any part of the subject matter hereof. The Exhibits attached to this Amended and
Restated Agreement are incorporated herein for all purposes:
Section 10.09 Recordation of Amended and Restated Agreement. Pursuant to
California Government Code § 65868.5, no later than ten (10) days after City enters into
this Amended and Restated Agreement, the City Clerk shall record an executed copy of
this Amended and Restated Agreement in the Official Records of the County of Sonoma.
Section 10.10 No Joint Venture or Partnership. It is specifically understood and
agreed to by and between the parties hereto that: (i) the subject development is a private
development; (ii) City has no interest or responsibilities for, or duty to, third parties
concerning any improvements until such time, and only until such time, that City accepts
the same pursuant to the provisions of this Amended and Restated Agreement or in
connection with the various Existing Project Approvals or Subsequent Project Approvals;
(iii) Developer shall have full power over and exclusive control of the Project herein
described, subject only to the limitations and obligations of Developer under this
Amended and Restated Agreement, the Existing Project Approvals, Subsequent Project
Approvals, and Applicable Law; and (iv) City and Developer hereby renounce the
existence of any form of agency relationship, joint venture or partnership between City
and Developer and agree that nothing contained herein or in any document executed in
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OAK 114818 -9576 -2200 v6
connection herewith shall be construed as creating any such relationship between City
and Developer.
Section 10.11 Waivers. All waivers of the provisions of this Amended and
Restated Agreement shall be in writing and signed by the appropriate authorities of City
and the Developer.
Section 10.12 California Law. This Amended and Restated Agreement shall be
construed and enforced in accordance with the laws of the State of California, without
reference to choice of law provisions.
IN WITNESS WHEREOF, this Amended and Restated Agreement has been
entered into by and between Developer and City as of the day and year first above
written.
[SIGNATURES ON FOLLOWING PAGE]
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OAK #48 18-9576-2200 v6
CITY:
City of Rohnert Park, a municipal corporation
By:
City Manager
Date Signed:
Approved as to Form:
By:
City Attorney
Attest:
By
City Clerk
DEVELOPER:
University District LLC, a Delaware limited
liability company
By:
Title:
and
Vast Oak Properties L.P., a California limited
partnership
By:
Title:
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OAK #4818 -9576 -2200 v6
EXHIBIT A
Site Map and Phasing Plan
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Exhibit A
OAK 44818-9576-2200 v6
EXHIBIT B -1
Legal Description of UD LLC Property
Real property in the unincorporated area of the Courty of Sonoma, State of California, described
as follows:
Parcel One:
Lying in Rancho Cotad and being a portion of the lands of Henry Ilimebauch Arderson as
described in Book 864 of Official Records at Page 194, being more particuiarty described as
follows:
Beginning at a point on the Westerly property line of the lands of Anderson, said point being the
Southeast corner of Paro l 1V of the lands of the County of Sonoma as described in Book 2166 of
Official Records, at Page 300 said point bears North 89® 23' 40" Cast 190.01 feet from a set iron
pipe; thence leaving said Ire North 89° 23' 40" East 169229 feet to the Northwest corner of the
parcel conveyed to the State of California by deed recorded March 28, 1967 in Book 2260 of
Official Records, Page 173, Sonoma County Records; thence along the West line of said parcel
South 0° 02' 40° West 300 feet to a point; thence North 89° 23' 40" East 95 feet to a point,;
thence South 041 02' 40" West 8O feet to a point; mince South 89° 23' 40" We 95 feet to a
point: thence South 0° 02' 40° West 510 feet to the South line of said Anderson parcel; thence
West along said South line 1692.29 feet to the Southwest corner of said tndem n parcel; thence
North 0° 02' 20` We 871.50 feet to the pint of beginning
Patel Two:
An easement for private and public road and inddental purposes over the following described
parcel:
6egirming at a point which bears North 89° 23' 40' EaSt 95 feet distant from the Northeast
comer of the above described parcel; thence North or 23' 40" East 100 feet; thence South 00
02' 40" West 380 feet; thence South 89° 23' 40r West 100 feet to a point; thence North 0° 02'
90' East 360 feet to the polio of beginning.
APN: 047-131-026-000 and 047- 131 -027 -000
Exhibit B -1
OAK #4818- 9576 -2200 v6
Exhibit B-1
OAK 114818-9576-2200 v6
EXHIBIT B -2
Legal Description of Vast Oak Property
Real property in the unincorporated area of the County of Sonoma, State of California, described
as follows:
TRACT ONE
Parcel One
Being a portion of that tract conveyed to Frank H. Denman and George B. Murphy and David R.
Risk and James C. Risk, by Deed dated February 23, 1911 and recorded in Book 272 of Deeds,
page 200, Sonoma County Records, and commencing at a stake marked 30 and 31, standing on
the South boundary of the lands conveyed to Denman and Murphy by said Risk Brothers, from
which a stake marked "Risk" standing at the Southwest corner of said Rand bears West 40.45
chains distant; thence along the South boundary of said lands East, 10.32 chains to a stake
marked 32 and 33; thence North across said lands, at 19.15 chains a stake marked 32 and 33,
standing on the South side of a road laid out amass said lands of Denman and Murphy, at 19.45
chains to the center of said road; thence along the center of said road South 89° 30` West, 10.32
chains to a point from which a stake marked 30 and 31 standing on the South side of said road
bears South 30 links distant; thence South 19.35 chains to the point of beginning.
Parcel 'Two
An easement 60 feet in width for general road and public utility purposes, the centerline of which
is the same as the East line of the parcel of land conveyed to James Tasley by Deed recorded in
Book 2307 at page 594), Sonoma County Records.
APN; 045 -262 -001
TRACT TWO
Parcel One
Being a portion of the tract conveyed to Frank H. Denman and Geo 8. Murphy, by David R. Risk
and James C. Risk by Oeed dated February 2.3, 1.911 and recorded in Book 272 of Deeds, Page
200, Sonoma County Records, and commencing at a stake marked "34 ", standing on the South
boundary of said Lands and at the Northeast corner of Lands conveyed to Geo H. Anderson by
Cotati Company, by Deed recorded In Book 181 of Deeds, Page 477, and Sonoma County
Records; thence along said line West 10.26 chains to a stake marked 32 and 33; thence North
19.15 chains to a stake marked 32 and 33, standing on the South line of a -40 foot road laid out
across said lands of Frank H Denman and Geo B. Murphy, and along South line of lands of H.
Comstock, at 19.45 drains to center of road; thence along center of same, North 89° 30' East,
10.26 chains; thence leaving said road South 30 links, a stake marked 34 and 35, standing on the
South side of said road, 19.57 chains the point of commencement.
Excepting therefrom any portion of said and lying Easterly of the agreed boundary line as
described in that certain Boundary Line Agreement and Quitclaim Dead executed by and between
North Bay Title Company and Cottonwood Enterprises recorded March 21, 1994 under Document
No. 1994 0037474 Sonoma County Records
Also excepting therefrom any portion of said land Tying Easterly of the agreed boundary line as
first America,, Title
Exhibit B -2
OAK 44818-9576-2200 v6
der • • in that certain Boundary Line Agreement and Quitclaim Deed executed by and between
North Bay Title Company (045-262-002-000) and North Bay Tit* Company (045.262- 003.000)
recorded March 21, 1994 under Document No 1994 69384, Sonoma County Records
Pa
Ail the land Tying Westerly of the Agreed boundary line as described In that certain Boundary Line
Agreement and Quitclaim Deed executed by and between North Bay Tide Company and
Cottonwood Enterprises recorded March 21, 1994 under Document No. 1994 4037474 Sonoma
County Records
Parcel Three
AM the land Tying Westerly of the agreed boundary Ilne as described in that certain Boundary Line
Agreement and Quitclaim Deed executed by and between North Bay Tide Company (045.262-
002.000) and North Bay Title Company (045.262- 003.000) recorded May 27, 1994 under
Document No. 1994 0069384, Sonoma County Records.
Parcel Four
A right of way enter a strip of land 40 feet In width, extencMg 20 feet on each side of the North
Tint of said lands from the East to the We boundary of the lands heretofore conveyed to Prank
H. Denman and Charlotte E. Denman, his wife and George B. Murphy and Alice P. Murphy, his
wife,
Excepting the right of way over and along a strip of land 20 feet In width along the North one of
the lands hereinabove described.
APN1 045-262-002
TRACT TherEE
Parcel One
tieing a potion of that tract conveyed to Frank M. Denman and George B. Murphy by David R.
Resit and lames C. Risk by Deed dated February 23, 1911 and red ded in Bode 272 of Deeds at
page 200, Sonoma County Records, and commencing at the Northeast corner of that tract
hereoofone cwweyed to A.S. Crardora in the center of the road from Petaluma to Santa Rosa,
from vo hkh an Iron pin at the Southeast corner of said bract conveyed to Denman and Murphy
bears South 5.02 chains distant and a stake marked 37 -38 standing on the West side of said road
bears West 45 links distant; thence along the amber of said road North 15.93 chains to the
center Tine of a 40- foot road Laid out across said lands cnnveyad to Denman and Murphy (a
stake 35 standing at the point of intersect of the West line of the Petaluma and Santa Roca
Road with the South line of said 40- foot road); thence along tine tenter Of said 40- foot road;
South b9° 30' West, 19.94 chains to a poke fatten which a stake marked 34 -35 gentling on the
South side of said road bears South 30 links distant; thence South 15.72 chairs to a stake
marked 37 -38 standing at the Northwest timer of the tract heretofore conveyed to A.S. Cardona;
thence along the said lands East 19.94 taws to the pent of beginning.
Exce • therefrom any portion of saki land lying Westerly and the agreed boundary Ilne as
described in that certain► Boundary Line Agreement and Quitclaim Deed executed by and Between
North day Tbtie Company (045.262.002-000) and North Bay Tale Company (045- 262 -003 -000)
recorded May 27, 1994 under Document No. 1994 0069384, Sonoma County Records.
Fri American Me
Exhibit B -2
-2-
OAK 1148 t 8- 9576 -2200 v6
Parcel Two
Ali the land tying Easterly of the agreed boundary Tine as descr • : In that certain Boundary Line
Agreement arid Quitclaim Deed executed by and between North By TRle Company (045.262-
002-000) and North Say Title any (04S-2624103000) recorded May 27, 1 under
Document No. 1994 0069384, Sonoma County Records.
APN: 045- 262.003
TRACT FOUR
Parcel One
•
Beginning at an iron pin In the center of the Petaluma and Santa Rosa, which is South 40.41
chains from the Northeast corner of Section N. 19 In Township 6 North 7 West, M.O.M..
and the Southeast comer of the lands twetdbe conveyed to Frank J. Denman and George 6.
Murphy by David R. Risk and 3as C. Risk; thence along the east boundary of said tract and the
center of said road North 5.02 chains to an iron pin; thence Irving said road and parallel with
the south boundary of said tract, west 19.94 chains to a stake; thence South 5.02 drains to a
stake marred "Risk" at the northwest comer of the land heretofore conveyed to Antone Cancloia
by the Cotad Company; thence along the south boundary of lands of Frank ti. Denman and Geo
B. Murphy, East 19.94 chains to the point of beginning. And being the same kind as Is described
and set forth in that certain Deed, Frank J. Denman and Geo B. Murphy to Antone Cardoxa,
dated August 12, 1911 and recorded ki Book 279 of Deeds„ page 164, Sonoma County Records,
which said Deed Is hereby referred to and mete a part thereof,
Excepting therefrom any portion of the above descried lands Tying Welted? of that boundary
line estabistred by Boundary line (Agreement by and between North Nay Tie Company and
Cottonwood Enterpres, recorded March 21, 1994 under Document No. 1994 0037474, Sonoma
County Records.
Parcel Two
My portion of the and of North Bay Teie Company as desct*Ded in those deeds recorded )erne
11, 1992 under Document No. 1992 0069870 and 1992 4069671, Sonoma County Records, lying
Easterly of that boundary Tin a established by Boundary Une Agree nt * by and between North
Bay Tide Company and Cottam cod Enterprises, weeded March 21, 1994 under Document No.
1994 0037474, Sonoma County Records.
APN: 045 - 262-004
TRACT FfvE
Being a portion of Rancho Cotati and beginning at a point.38 chains North of the point of
Intersection of the centerline of the County Road leading from Santa Rosa to Petaluma with the
South Wise of Section 19, Township 6 North, Range 7 West, M.D.M., said section Tine being also
the centerline of Copeland Ditch extended; thence from said point of beginning (which Is marked
by an iron par) West 20.00 chains to the East line of the 80 acre tract of George H. Anderson, .38
chains North of the Southeast comer of said 10 acre tract; thence North along said line of
Anderson tract 36.62 chains to a stake marked "RISK"; thence East 19.94 chains to an iron pin In
the center of said County Road; thew* Soutar 38.62 chains to the point of beginning, and being
the same land as is descnbed and set forth In duns certain Deed. the Cntati Company to Antone
Cardota dated May 12th, 1889 and receded in Book 184 of Deeds, page 556 of Sonoma County
Records, which said Deed Is hereby referred to and made a pert thereof.
Pest American Mk
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OAK 04818 -9576 -2200 v6
ng theneham that portion of land con
an April 24, 1967 in Book 2264 a Official Records,
Also excepting therefrom that portion of lend cyan
recorded an December 31, 1 . • in : • 2437 of OfRdai Records,, page 839, Sonoma County
Records.
ki the County Sonoma, by f: L::._. is rexxded
923, &mom County Rmorth.
to Rancho Pothers by deed
A.P. No, 047- 131.019
TRACT SIX
PUCCI OM
Lykrhg in ti:e Cot Rancho, being a portion of the I.. •' - of Henry H mebauch Mdarson as
described In Book 861 of Official Records, Page 194, and being more particularly described as
follows:
Commencing at a paint an the We ster$y , ,' line of the lands of Anderson saki point being
the Northeast corner of Parcel IV of the la • . of the County of Sorhonha as described n Book 2166
d Official Records, Page 300, said point bears North a9° 23' 40" East 191.15 Mat from an iron
pipe monument set; thence North 89° 23' 40` East 1837.29 feet to a point, said point be the
true print of beginning; thence North 0' 02' 40" East 1670.72 feet to the North line said
Anderson land; thence North 89' 23' 40' East along the Not line of saki Anderson lends 794.22
feet to the Northeast corner threof, thence South 0° 02' 40' West along the West line of said
Anderson parcel 1670,72 feet to a point on the North line of the parcel conveyed to the County
above referred to; thence South 89° 2T 40" West 794.22 feet to the point of beginning
Pere l Two
A non- exdwhre easement for general road and utility purposes 60 feet in width lying 30 feet on
each side of a line described as follows:
Beginning at a point on the South line of Keiser Avenue at a point distant 30 feet Westerly from a
stake marking the Northeast corner of the 20 acre parcel owned by Henry H. Anderson, et we
thence South and 30 feet distant from the East line of said Anderson parcel 1146,64 feet to a
point thence Softy in a direct line 16S feet to the No '+` comer of Parcel One
above described and the terminus of said easement
APN: 047.131 -024
TRACT SEVEN
Pared One
LYing ice the Cot Rancho, _ a portion of the lands of Henry Himebeugh Anderson as
described In Book 464 of °fflcsai Records,, page 194, and being more particularly described as
follows:
ng at a point on the Westerly property line of the Lands of Anderson, said point f :- the
Northeast coma of Parcel IV of fibs Lands of the County of Sonoma as described in Book 2166 of
Official Records, page 300, saki .. bears North 89° 23' 40" East 191,15 feet from an iron pipe
set; thence North 89" 23' 40' East 1837.29 feet to a pot, thence North 0° 02' 40' East 1670.72
fast Arrret r► 71t*
_4_
OAK #4818- 9576 -2200 v6
feet to the North Inc of sat Andresen Lands; thence South 89° 23' 40' West autong the North
Are of said Anderson Lands 1837.29 Beet to the Northwest caner thereof; thence South 0' 02"
e0' West. Meng the West Ilne of said Anderson Part 1670.72 feet to the pant of beginning.
Excepting therefrom all that portion of said lad Lying Northerly of tike agreed boundary line
In that cetaln Boundary Une Agreement and Quitclaim Deed executed by and bethrren
Vast • P es and Cotad -Rohnert Part Weed School District recorded August 5, 1994
under Document No. 1994 0093626, Sonoma County Records,
I * • ..•
Parcel Two
•
•
All that lands lying Southerly of the _. boundary fire described to that certain . • tine
Agreement and Qulxialm Dead executed by and between Vast Oak Properties and Cotatl- Rohnert
Paris Unified School District recorded Au ust 5, 1994 UMW Document No. 1994 0093625,
Sonoma County Records.
Parma Three
A ndn -exclusive easement far general road and utility purposes 60 feet in width tying 30 feet on
each side of a line scribed as followsr
ng at a point an the South line of Keiser Avenue at a point distant 30 fed Westerly from a
stake marking the Northeast corner of the 20 acre parcel owned by Remy 14. Andertat, et ux,
thence South and 30 feet distant thorn the East tine of said Anderson Parcel 1146.64 teeny a
point; thence Southwesterly in a direct tine 165 feet to the Northeasterly cornet of Parcel lane
above and the bermIni s of said easement.
&mom/1g that portion lying withat Parcel One ateue.
Pairel Four
A non- exckeslve easement. 60 feet in width for general road and public uttitty purposes. lying
equally on each side of the East line of the elbow described PanoN One.
therefrom that portion tying within Parcel One above,
r 0478131 -02S
Exhibit B -2
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OAK #4818- 9576 -2200 v6
MOLLYKSINIAIV
aura aaarmon
Aavervnrw I WIN ro•
irxmr saw ia►rsr •lrcir
Exhibit B -2
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OAK #14818- 9576 -220() v6
Exhibit C
Dedications, Improvements, and Facilities Schedule
Amended and Restated Development Agreement
'Dedications, Improvements, and
Facilities
Bonding/ Construction / Offer of
Dedication
Construction Completed
•
Roadway improvements (Section 4.09)
Rohnert Park Expressway (Section
4.09A)
(Ph 1, North (Snyder to PHR)
Bond with 1st Final Map;
Construction Started Prior to 25th
Market Rate (MR) Building Permit
12 Months After Start of
Construction, OR 18 months if
started during rainy season,
And Connections Provided to
interior Streets Prior to
Occupancy of Any Unit
(Ph 2, South (Snyder to PHR)
Bond with Final Map that Creates
800th Single - Family Lot;
Construction Started Prior to
800th MR Building Permit
12 Months After Start of
Construction, OR 18 months if
started after rainy season
Keiser Avenue (Section 4.09B)
(Ph 1, Snyder to West Side of Oak
Grove Park)
Bond with 1st Final Map in Vast
Oak North;
Construction Started Prior to lst
MR Building Permit in Vast Oak
North
12 Months After Start of
Construction, Or Occupancy of
Any MR Unit in Vast Oak North
(Ph 2, West Side of Oak Grove Park to
PHR)
Bond with Final Map that Creates
100th MR Single - Family Lot in
Vast Oak North;
Construction Started at
Completion of Keiser Phase 1 OR
lOOth MR 01ai(diri Permit in Vast
Oak North
12 Months After Start of
Construction
1
OAIC #4818- 9576 -2200 v6
Other Improvements
Potable Water Tank (Section 4.10)
Land Offered For Dedication
Prior to First Final Map AND Prior
to 1st MR Building Permit
N/A
Construction
Bond with Final Map that Creates
200th Single- Family Lot;
Construction Started Prior to
200th MR Building Permit
12 Months After Start of
Construction Or Prior to 400th
MR Building Permit
Crane Creek Trail Easement
Land Offered for Dedication
Prior to First Final Map AND Prior
to First MR Building Permit
N/A
Parks (Section 4.11)
Twin Creek Park - Dedication
Dedication on First Final Map
N/A
Twin Creek Park - Sheet Graded and
Stubbed Utilities
Bond with First Final Map;
Construction Started Prior to
50th MR Building Permit
Prior to 100th Building Permit
Twin Creek Park - Improvement
Bond with Final Map that Creates
100th Single - Family Lot;
Construction Started Prior to
100th MR Building Permit
12 Months After Start of
Construction, Or Prior to 300th
MR Building Permit
Oak Grove Park - Dedication
Dedicate with First Final Map in
Vast Oak North
N/A
Oak Grove Park - Perimeter Road
Completed
Bond with First Final Map in Vast
Oak North;
Construction Started Prior to 50th
MR Building Permit in Vast Oak
North
Prior to 100th MR Building
Permit in Vast Oak North
Oak Grove Park - Improvement
Bond with Final Map that Creates
100th Single - Family Lot in Vast
Oak North;
Construction Started Prior to
100th MR Building Permit in Vast
Oak North
12 Months After Start of
Construction Or Prior to 150th
MR Building Permit in Vast Oak
North
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OAK 114818- 9576 -2200 v6
Notes:
1) Cross -town Water Transmission Main to Be funded by PFFP reserves, built by City
2) Eastside Trunk Sewer North Reach/ Snyder Lane Widening (Southwest Boulevard to Medical Center
Drive) to be funded by Brookfield Homes, built by City
3) Eastside Trunk Sewer Phases 1 and 2 to be funded by City, built by City
4) Brookfield Homes Pays 25% of PFFP Fees in Cash (75% PFFP Credit for Improvements Allowed)
3
OAK #4818- 9576 -2200 v6
Pedestrian Bridges (Section 4.08 -C)
Pedestrian Bridge at Hinebaugh Creek
(Connecting VO North to VO Central)
Bond with Final Map that Creates
100th MR Lot in Vast Oak North;
Construction Started Prior to
100th MR Building Permit in Vast
Oak North
12 Months After Start of
Construction Or Prior to 150th
MR Building Permit in Vast Oak
North
Pedestrian Bridge at Copeland Creek
(Connecting UDLLC to Rancho Cotate
High School)
Bond with First Final Map in
UDLLC;
Construction Started Prior to
100th UDLLC MR Building Permit
12 Months After Start of
Construction
'Vehicular and Roadway Bridge/ Public
Roadway (Section 4.09C)
Vehicle/ Pedestrian Bridge at
Hinebaugh Creek (Twin Creeks Drive)
Bond with First Final Map in Vast
Oak North;
Construction Started Prior to 1st
Building Permit in Vast Oak North
12 Months After Start of
Construction Or Prior to
•Occupancy of Any Unit in Vast
Oak North
Roadway North from Hinebaugh Creek
(Twin Creeks Drive Extension to Keiser
Avenue))
Bond with First Final Map in Vast
Oak North;
Construction Started Prior to lst
MR Building Permit in Vast Oak
North
12 Months After Start of
Construction Or Prior to
Occupancy of Any MR Unit in
Vast Oak North
Notes:
1) Cross -town Water Transmission Main to Be funded by PFFP reserves, built by City
2) Eastside Trunk Sewer North Reach/ Snyder Lane Widening (Southwest Boulevard to Medical Center
Drive) to be funded by Brookfield Homes, built by City
3) Eastside Trunk Sewer Phases 1 and 2 to be funded by City, built by City
4) Brookfield Homes Pays 25% of PFFP Fees in Cash (75% PFFP Credit for Improvements Allowed)
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OAK #4818- 9576 -2200 v6
EXHIBIT C -1.
UD LLC & VAST OAK PFFP FUNDING OBLIGATIONS AND PROJECTIONS
PFFP FUNDING OBLIGATIONS PER TYPE ! SFD
BASED UPON OCTOBER 2011 PFFP $28,269
DEVELOPMENT ASSUMPTIONS;
SFD
UD VO PEEP 021314
MF COMMERCIAL
517,435 $17,315
Mf COMM. /1,000
VAST OAK WEST
VASY OAK CENTRAL
VAST OAK EAST
VAST OAK NORTH
UD LLC
330
279
218
206
203
0
0
0
218
0
0
0
100
0
0
TOTAL
1,236
210 100
BINDING AND PROJECTIONS PER PHASE OBLIGATION PROJECTION VARIANCE SEWER 25 %
VAST OAK WEST & CENTRAL 517,215,821 517,215,821 5D 54,303,955
VAST OAK EAST (INC. COMMERCIAL) 57,894,142 57,894,142 50 51,973,536
VAST OAK NORTH (INC. BMR APARTMENTS) 59,624,244 $9,624,244 50 52,406,061
UD LLC 55,738,607 55,738,607 50 51,434,652
TOTAL ..540,472,814 540,472314 $0 510,115,204
PFFP FUNDING PROJECTIONS IMPROVEMENT FUNDING TOTAL SEWER FEES
30%
VAST OAK WEST & CENTRAL
RPX - PH. 1- NORTHSIDE (SNYDER TO PHR)
WESTSIDE SEWER INTERCEPTOR PHASE 1
SNYDER BRIDGE AT COPELAND CREEK
ESTS - PH. 3 - NORTH REACH
ESTS PH- 2 DESIGN FEES
SNYDER - SOUTHWEST BLVD, TO RPX
ESTS PH.1 & SEWER CAPACITY FEES
55,075,994 $0 55,075,994
$0 5740,000 5740,000
50 5435,000 5435,000
50 $2,805,235 $2,805,235
50 575,000 $75,000
50 $2,966,271 $2,966,271
50 55,118,321 55,118,321
575,000
55,118,321
TOTAL VAST OAK WEST it NTRAL 55,075;994 $12,139,827
VAST OAK EAST
RPX - PH. 2- SOUTHSIDE (SNYDER TO PHR) 55,075,994
ESTS PH- 1 & SEWER CAPACITY FEES 50 52,818,148
821 $5.193,321
34%
$0 55,075,994
$2,818,148
52,818,148
TOTAL VAST OAK EAST 55,075,994 $2,818,144 57,894,142 $2,818.748
VAST OAK NORTH ,... 21%
KEISER - PH. 1 (SNYDER TO OAK GROVE PARK) 53,810,523 50 53,810,523
KEISER -- PH. 2 (OAK GROVE PARK TO PHR) $3,810,523 50 $3,810,523
ESTS PH. 1 & SEWER CAPACITY FEES 50 52,003,198 52,003,198
52.003,198
TOTAL VAST OAK NORTH
UD LLC
COPELAND CREEK DETENTION BASIN
ESTS PH,1 & SEWER CAPACITY FEES
57.621,046 52,003,198 59,624,244 52.003,194
57%
so
$2,470,731
52,470,731
50 $3,267,876 53,267,876
53,267,876
TOTAL UD LLC
50 55,738,607 $5,;
7,376
TOTAL - OD & VAST OAK SFD
517.773,034
522,699,780
& VAST OAK PFFP FEE OUR ITiGATE0 THROUGH RINGING ANLI / 08 CONSTRUCTION OE IMPROVE
PAID Al THE TIME 01 THE ISSUANCE Of EACH 01J1LDINC3 PERMIT. E
At 'ESTS / WESTSIDE /SEWER CAPACITY FUN
14
AND SEWER CAPACITY FEES PAID AT SLOG. PERMIT.
SEWER FEES:
5 PER PFFP.
P COST.
516,827,778
SNIDER COSTS INCLUDE SURFACE, MEDIAN &; FRONTAGE AND TRAFFIC CON IRO
DE "TENTION BASIN I5 PROIECTEO FOR THE ltd Lk( & VAST OAK FAIR SHARE AMOUNT, WHICH I5 85 % OF T
The PFFP funding obligations and projections are estimates based on the 2011 PFFP fees and will be confirmed at the time
of building permit issuance.
1
OAK #4818 -9576 -2200 v6
43
EXHIBIT D
REVISED AFFORDABLE HOUSING PLAN
I. INTRODUCTION
The Project has been designed to substantially increase the housing stock in the City and
to help alleviate the City's need for housing affordable to Very Low, Low, and Moderate Income
Households. Subject to potential adjustment as provided in Section IX below, Developer agrees
to provide 15% of the total Project as Affordable Units in the Project, consisting of two hundred
and eighteen (218) Affordable Apartments as defined in the City's Inclusionary Ordinance.
Unless otherwise defined herein, capitalized terms contained in this Affordable Housing Plan
shall have the meaning given to such telins in the Amended and Restated Agreement.
II. AFFORDABLE APARTMENT COMPLEX
A. Obligation to Construct.
The Developer shall either (1) construct the Affordable Apartments on dedicated parcels
comprising the VO property in accordance with the plans and specifications approved by the
City, or (2) dedicate land within the VO property, as solely determined by the Developer, to one
or more non -profit housing developers in lieu of Developer's construction of the Affordable
Apartments.
(1) In the event that Developer decides to donate the land to an affordable housing
developer, prior to donating the land to the non - profit, Developer shall confirm that the land is
appropriately zoned, buildable, free of toxic substances and contaminated soils. Developer shall
dedicate the land provided for under this Section ILA. (1) in such size as to satisfy the 15%
Affordable Housing Requirement for 1,454 total Vast Oak and UDLLC units, and (2) within 180
days of the approval of the Ordinance adopting the Amended and Restated Agreement either: i)
offer the land for dedication to an affordable housing developer interested in developing the
Affordable Apartment Complex; or ii) offer to dedicate to the City the land necessary for the
construction of the Affordable Apartment Complex. Prior to donating this land to the non - profit,
the Developer shall ensure that the land is sheet grated super pad lots and will have stubbed
utilities to the perimeter of the land. The non - profit to whom the Developer donates the land
shall have a minimum of five years' experience in development, ownership, operation, and
management of similar sized affordable rental housing projects, and shall demonstrate that it has
the capacity to construct and operate the affordable housing apartments.
(2) Concurrently with recordation of the first final map for the Vast Oak Property,
Developer shall transfer the fee interest in the Affordable Apartment Complex site to an
affordable housing developer selected by Developer and approved by the City Manager or his or
her designee in his or her reasonable discretion. The City Manager or his or her designee shall
not withhold approval of the affordable housing developer provided the proposed affordable
housing developer (i) has at least five (5) year's experience in the development, ownership,
operation and management of similar size affordable rental housing projects, (ii) does not have
any record of material violations of discrimination restrictions or other state or federal laws or
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OAK #4818- 9576 -2200 v6
regulations or local governmental requirements applicable to such projects, and (iii) has the
financial capability to develop and operate the Affordable Apartment Complex. Developer shall
remain obligated to construct the Affordable Apartment Complex and shall, therefore, retain the
right and option to repurchase the Apartment Site from the designated affordable housing
developer. If Developer's designated affordable housing developer has not commenced
construction of the Affordable Apartment Complex, as demonstrated by the pouring of
foundations, within three years of issuance of the first building permit for the Project, Developer,
at its expense, will repurchase the Apartment Site from the designated affordable housing
developer and commence and complete the construction of the Apartment Complex as soon as
possible, but in any event within six years after issuance of the first building permit for the
Project. Developer acknowledges and agrees that City shall have the right to withhold issuance
of building permits for the last 50 market -rate residential units in the Project until such time as
construction of the Affordable Apartment Complex has been satisfactorily completed as
evidenced by a final certificate of occupancy.
(3) Irrespective of the entity that constructs the Affordable Apartments, construction
shall be completed no later than completion of the market -rate units that are part of the Project.
In recognition of the fact that Developer may phase construction of the market -rate or
commercial units, for purposes of this Affordable Housing Plan, the phrase "completed no later
than market -rate units" shall mean no later than the City's issuance of the 1,200th cumulative
market -rate residential unit building permit.
(4) The Developer shall provide in its transfer documents donating land within its
Project to a non -profit housing developer for a reversion in fee to Developer of the land upon
which the Affordable Apartments are to be constructed if the Affordable Apartments have not
been constructed as required by this Affordable Housing Plan. If the non - profit housing
developer has not completed construction of the Affordable Apartments as set forth in this
Affordable Housing Plan, then the Developer will be required to complete construction of the
Affordable Apartments itself. Developer shall do so at Developer's sole expense, and Developer
shall complete construction of the Affordable Apartments no later than issuance of the building
permit for the 1,200th cumulative market -rate unit.
(5) City shall not be obligated to issue any additional building permits to Developer
beyond the 1,200th cumulative market -rate building permit until the Affordable Apartments are
satisfactorily completed, as evidenced by a final certificate of occupancy, according to the terms
of the Amended and Restated Agreement and this Affordable Housing Plan.
B. Affordability.
Subject to adjustment as provided in Section IX. below, the Affordable Apartment
Complex shall contain Two Hundred and Eighteen (218) Affordable Apartments located on one
site on the VO North Property. Fifty percent (50 %) of the Affordable Apartments shall be rented
to Very Low Income Households at an Affordable Rent. The remaining fifty percent (50 %) of
the Affordable Apartments shall be rented to Low Income Households at an Affordable Rent.
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OAK #4818 -9576 -2200 v6
C. Affordable Housing Agreement.
Affordable rental properties shall be restricted for 55 years as is required by the Rohnert
Park Municipal Code. In order to ensure that these affordability restrictions remain in place, the
Developer or the non - profit to whom the Developer donates the land, shall enter into an
Affordable Housing Agreement with the City in a form and content acceptable to the City
Attorney. The Affordable Housing Agreement shall be recorded against the Affordable
Apartments land or project site prior to the issuance of the building permit for the 1,000`"
market -rate residential unit. The Affordable Housing Agreement shall include at least the
following terms:
1. The requirement to construct the Affordable Apartment Complex as
provided herein;
2. Provisions restricting the rental of the Affordable Apartments to Low and
Very Low Income Households at an Affordable Rent as defined by the
Rohnert Park Municipal Code for a period of 55 years;
3. Non - discrimination covenants;
4. Provisions requiring income certification before the lease of any
Affordable Apartment Units and recertification every year thereafter;
5. Provisions requiring the submittal of certificates of continuing program
compliance to the City on at least an annual basis;
6. Restrictions on the ability to transfer the Affordable Apartment Complex;
7. Maintenance and management requirements, including City remedies
following notice and opportunity to cure;
8. Provisions regarding the marketing of the Affordable Apartments,
including any approved preference program, as set forth in Section II(E)
below.
D. Quality /Standards.
The Affordable Apartments shall be of high architectural quality, effectively and
aesthetically designed and constructed in a workmanlike manner with professionally rendered
finishes. The Affordable Apartments shall be indistinguishable from the comparable market rate
condominiums in exterior and interior design, quality, materials, fixtures and architectural
elements (other than interior flooring materials, countertops, cabinetry and appliances which
shall be high quality, but need not be identical to the market rate condominiums). At least eighty
percent (80 %) of the Affordable Apartments shall be 2- bedroom /2 -bath units or larger, and at
least ten percent (10 %) shall be 3- bedroom /2 -bath units. Developer shall use best efforts to
increase number of 3- bedroom /2 -bath units by converting 2- bedroom/2 -bath units where feasible
to do so within the design/footprint.
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OAK #4818- 9576 -2200 v6
E. Marketing /Implementation.
Developer or its designated affordable housing developer shall prepare and implement a
marketing and implementation plan for the rental of the Affordable Apartments. The plan must
be in a form and content reasonably acceptable to the City and include, among other things, the
following:
I. A plan to market the Affordable Apartments to eligible households;
2. Procedures for the rental of the Affordable Apartments, including the
slotting of applications and creation of a waiting list, eligibility
determination, income certification and annual recertifications; and
3. To the extent permitted by law, a preference program, whereby Developer
shall give preference in the rental of the Affordable Apartments first to
nurses, Cotati /Rohnert Park Unified School district staff and faculty, peace
officers as defined by Penal Code section 830.1(a) and persons employed
as firefighters, who live or work in the City; second to other income
qualified City municipal employees; third to income qualified employees
of Sonoma State University; fourth to persons who live and work in
Rohnert Park; fifth to persons who live in Rohnert Park; sixth to persons
who work in Rohnert Park; and seventh to all others.
III. IN -LIEU FEES
In the event that the City adopts any other affordable or inclusionary housing ordinance,
including an in -lieu fee that would apply to the Project, Developer may, in its sole discretion,
comply with any future adopted form of affordable or inclusionary housing ordinance through
the payment of in -lieu fees.
IV. COMPLIANCE MONITORING
Commencing one year after the Effective Date and every year through the Term,
Developer shall submit an annual implementation plan to the City summarizing the status of
compliance with the Affordable Housing Plan, including status of construction and rental of the
Affordable Units and status of construction of the affordable Second Units. This compliance can
be included within the Annual Review of the Amended and Restated Agreement. The Developer
shall submit the required Processing Fees to cover the City's costs to review and monitor the
Developer's compliance with the Affordable Housing Plan.
V. DEVELOPER'S OBLIGATION
The obligations set forth in this Affordable Housing Plan are the obligations of
Developer, who shall be responsible for fulfilling them at Developer's sole cost and expense.
Neither the City nor the Rohnert Park Community Development Agency will have any
obligation to assist in the development of any of the Affordable Apartment Units or Second
Units. Developer shall provide any and all subsidies necessary to construct the Affordable Units
and Second Units and to comply with all provisions of this Affordable Housing Plan.
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OAK H4818 -9576 -2200 v6
VI. PRIORITY
The Affordable Housing Agreements described above shall be superior to any mortgage,
deed of trust, lien or other encumbrance (other than the lien for current taxes or assessments not
yet due) recorded against the Property, and shall be enforceable against any party who has
acquired its title by foreclosure, trustee's sale, voluntary conveyance or otherwise. If so
requested by City, Developer or its successor shall execute and agree to the recording of a
subordination agreement evidencing the provisions of this Section VIII.
VII. ADJUSTMENT
A. General.
The Developer may seek a reduction, adjustment, or waiver of these Affordable Housing
requirements as is set forth in Rohnert Park Municipal Code Section 17.07.020, footnote (N),
subsection 15. Furthermore, the Developer may elect to satisfy its affordable housing
requirements, at Developer's sole discretion, by constructing the Affordable Units or dedicating
the property in Vast Oak North for the Affordable Apartments.
B. Potential Reduction in Affordable Units.
Developer is obligated to provide 218 Affordable Apartments in accordance with the City
Inclusionary Ordinance. In the event that the anticipated total number of attached and detached
market rate residential units is reduced through subdivision mapping or other approval processes,
the number of Affordable Apartments and Affordable Units required to be developed within the
Project will be reduced proportionately, with any fractional units rounded up to the nearest whole
number.
-5
OAK #4818 -9576 -2200 v6
EXHIBIT E
Water Tank Site Legal Description
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE UNINCORPORATED AREA OF SONOMA
COUNTY STATE OF CALIFORNIA, BEING A PORTION OF TRACT II AS DESCRIBED IN DOCUMENT
NO. 2003 - 080334, SONOMA COUNTY RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS;
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID TRACT 11, BEING ALSO A POINT ON THE
EASTERLY RIGHT OF WAY OF PETALUMA HILL ROAD; THENCE FROM SAID POINT OF BEGINNING
ALONG THE NORTHERLY LINE OF SAID TRACT II, THE FOLLOWING THREE (3) COURSES:
I) SOUTH 77 °39'44" EAST 86.49 FEET;
2) SOUTH 67 °55'25" EAST 206.96 FEET;
3) SOUTH 89 °03'51" EAST 1703.57 FEET;
THENCE LEAVING SAID NORTHERLY LINE AND ENTERING INTO SAID TRACT II THE FOLLOWING
THREE (3) COURSES:
1) SOUTH 89 °03'51" EAST 323.22 FEET;
2) NORTH 65 °22'06" EAST 250.51 FEET;
3) SOUTH 89 °53'55" EAST 81,20 FEET TO THE EASTERLY LINE OF SAID TRACT 11;
THENCE ALONG SAID EASTERLY LINE, SOUTH 00 °18'05" WEST 960.82 FEET TO THE SOUTHERLY
LINE OF SAID TRACT II;
THENCE ALONG THE SOUTHERLY LINE NORTH 89 °56'20" WEST 2,606.17 FEET TO A POINT ON THE
EASTERLY RIGHT OF WAY LINE OF PETALUMA HILL ROAD;
THENCE ALONG SAID EASTERLY RIGHT OF WAY COMMON WITH WESTERLY LINE OF SAID TRACT
II, NORTH 00 °01'44" WEST 983.12 FEET, TO THE POINT OF BEGINNING.
CONTAINING 53.00 ACRES, MORE OR LESS
RESERVING THEREFROM A NON - EXCLUSIVE EASEMENT:
THE NORTHERLY TWENTY FEES' (20') OF THE ABOVE DESCRIBED PARCEL FOR SHARED PRIVATE
ACCESS AND UTILITY EASEMENT PURPOSES.
A PORTION OF APN 047 - 132 -038
END OF DESCRIPTION
Exhibit E
-I-
P:U9539 \Plats- Legals\Legals \WATER TANK SITE DESCRIPTION F,XHIBIT E.doe
1
OAK 44818- 9576 -2200 v6
5
0
H
a
ANDERSON HENRY JAMES
DOC #2003-064065
APN 047 - 132 -039
N77 °39'44" W
86.49'
i
UNIVERSITY DISTRICT LLC
N89°53'55 "W 1
DOC #2003- 080334 81'20
APN 047 -132 -038 I N65 °22'06" E i
N67°55'25 "W I t 250.51'
206.96'
1703.57' 1 3231
.22' v
P.O.B. 51 "W 2079' 1f0T'AC- _ ` _ °- c 1
oN.
c)
�:
ANDERSON HENRY JAMES
DOC #2004-112861
APN 047-132-033 ,...� "
DUPAR CAROLYN
DOC #2001 - 055311
APN 047 - 132 -013
0' 200' 400' 800'
1
SCALE: 1" = 400'
20' WIDE PRIVATE ACCESS
AND UTILITY EASEMENT
PARCEL 1
53.00#' Ac.
GROSS' EDWARD &
SWEEP SUSAN RITA
DOC #2003- 097556
APN 047 - 132 -032
N89°56'20" W 2606.17'
....01111. 41611. 0111.111.1611. 1i. MNIMININOW.
LEGEND
P.O.B. POINT OF BEGINNING
- - BOUNDARY LINE
PARCEL LINE
RIGHT OF WAY
ADJACENT PROPERTY LINE
EXHIBIT "E"
WATER TANK SITE DESCRIPTION
COUNTY OF SONOMA
PAGE 2 OF 2
CALIFORNIA
mAcKAY & sohips
CIVIL ENGINEERING•LAND PLANNING•LAND SURVEYING
Pleasanton, CA (925) - 225 -0690
DRAWN
IBM
DATE
SCALE
JOB N0.
01 -16 -14
r =400'
2 -13 -2014 11:13:26 mwehber P:\ 19539 \Plots- Legals \Plats \REV_38AC_p at09- 14- 06.dwg
2
OAK #4818- 9576 -2200 v6
r-°
19539
EXHIBIT F
Crane Creek Trail Easement Area Diagram and Legal Description
5
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E
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POTABLE 4IATER TANK
OAK 114818- 9576 -2200 v6
All THAT CERTAIN REAL PROPERTY srrum-rp IN THE UNINCoREORATED
AREA OF SONOMA COUNTY, STA IT oF CALIFORNIA, BEING A PoRlioN 01 TRACT 11 AS
DEsCRIHED IN SERIES NO, 24O34)84)334, SONOMA CouNTY RI,;(70RD,S, MORE PARTICULARLY
DESCI2113ED AS FOLLOWS:
COMMENCING AT -111E NoRTHWEsTERLY CORNER OF SAII) TRACT II, BEING ALS() A POINT ON
1111: EASTERLY RIGHT 01, WAY OF PE:CALIIMA 1111.1, ROM)'., Tm..,NR:F, FROM 'A11) POINT 01
COMMENCEMIiN I ALONG THE NOEFOIERLY LINE OF SAID TRACT. 11 '1.111z, FOLLOWING FOUR (4)
COURSEsi
1) SOUTH 7734/44" rAsi 86,49 EFFT:
2) SOUth 67'5525" FAST 2(16,% FEET;
3) SOUFil 89°0'51" EAST L703,57 FEET;
4) NORTH to(0.31'34' FAsT 66.51 FEET, to 'Ulf POINT OF BEGINNING;
THENCE FROM SAID PoINT oF BEGINNING CoNTINIIING ALONG ITIE N( )RTHERLY I IN• OE SAIL)
'MACE 1. COMMON WITH THE sou rriFRLY ANI) EASIERLY LINES C)F THE 1 ANDS OE HENRY
JAMES ANDERSON, SERIES No 2004-112ml, Jo MARILYN ANDERSON, SERIEs No 1984-081 172, ANI)
J( )l AND M,ICT SIMPSON, SERIES No. 19944)88265, SONCIMA COONEY RECORDS, 111E,
FOLLOWING SIX (.6 (OUIRSFS,
1) NOM"( I 00'3E54' FAST 52(1,36 FEET,.
2) N0RFIt 7818'57' EAST 1,301 ()1 FEET..
3) NOM 29447 rAsT i49„79 Lax;
4) SOUR)! 87-3cElfi" I.-As-1-47TV FEET,
5) NORTH (101449' EAST 463.32 LEVI%
6) SOI run 87.34)16." F,A,s r 1,54E35 FEET Do 111! VAS FERL Y LINE OF SAM [RAC r 11, BEING ALSO A
POINT ON 1I1E WESTERLY LINE OF 'HIE LANDS 01 111E COUN l'Y 01 SoN0MA SERIES :NO. 1975'-
2989589, SONOMA (201.1N TY RECoRI)s.,
TIUNCE ALONG SAID FAS FERE Y LINE or 'TRACT 11, COMMON WHII THE WESTERLY LINE. OF SAID
COUN'FY 1,ANDS, THE FOLLOWING TWO (2) CO(JRSES:
1) SO11111 32°1 312" FAS r 588,11
2) sat( 111 161(V46 EAsT 1,048 67 FEE T TO 11 11 Sol rrivAs r CORt•IER of: SAID TRACE II, BEING
Al S} 1111 NORA !EAST CORNER 0! 1111' LANDS or WILLIAM AN() NANCY ADAMS, SERIFS No,
2()«4-4651 73, SONOMA CoUN R1(0RDS
THENCE ALONG THE 5011HIER1,Y AND WESTERLY LINES OE SAID TRACT II, COMMON WITH THE
111 LINES OE THE SAID ADAMS LAND ANI) THE I. ANDS OF ROY AND MAUREEN
IIEGROOT, SERIFS N(), 19119-1 15416, AND nib: NOR ITIERLY AND WESTERLY LINE ,S 01
SANGIACOMO GENERATIONS, SF:RIES NO 19984154512, SONOMA COI INTY RECoRDS, THE
FOLLOWING TtIRFE (3 ) COURSES
-
- 2 -
OAK #4818-9576-2200 v6
1) NOR 1117(132'59" W1; 2,3t11 33
2.) NOR 11 1 11/1"53116" WI:SE 1,035,.11
3) SOO 111 110"1/Voi" WE/114335 12 1.14+.1,
'1111iNCV LEAVING SA11) WE/11+:10,Y LINE AN1) FNflRlN( 1NR) SAIII TRACT 11 THE 1:01 LOW NCI
t3)C(1.112/.11;S,.
1) NI/kill /1953'53" wI:sr 156.75 FI.ET,
2) SOliTH 49%TO3' S1 51.18
3) Notat /193353" wv,s-r 43009 Hita, TO II IF, POINT OF 'BEGINNING,
CONTAINING 7444) ACRES MORI:. OR 1,FSS
A PORTION OF APN (M7-132-038
END OF DESCRIPTION
4818-9576-2200, v. 6
- 3 -
OAK #4818-9576-2200 v6