2014/07/22 City Council Resolution 2014-093RESOLUTION NO. 2014 -093
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
APPROVING PARCEL MAP 183 AND ACCEPTING OFFERS OF DEDICATION FOR
PUBLIC RIGHT -OF -WAY, PUBLIC UTILITY EASEMENT, SIDEWALK EASEMENT,
AND EMERGENCY VEHICLE ACCESS EASEMENT AND APPROVING A
SUBDIVISION IMPROVEMENT AGREEMENT, A REIMBURSEMENT
AGREEMENT, AND LANDSCAPE MAINTENANCE AGREEMENTS
WHEREAS, the Subdivision Committee of the City of Rohnert Park approved the
Tentative Parcel Map for Parcel Map 183 on February 25, 2014 (Resolution No. 2014 -01); and
WHEREAS, COBT, LLC/ CBI, LLC, Oregon Limited Liability Companies,
( "Developer ") has submitted Parcel Map 183 ( "Map ") for filing; and
WHEREAS, the map has been reviewed by the Deputy City Engineer and City Surveyor
and has been determined to be technically accurate and in conformance with the Tentative Parcel
Map; and
WHEREAS, the map includes an Offer of Dedication for public street right -of -way for
Dowdell Avenue, Golf Course Drive West, and Redwood Drive, a Public Utility Easement, a
Sidewalk Easement, and an Emergency Vehicle Access Easement; and
WHEREAS, the conditions of approval for the Tentative Parcel Map require
construction of street improvements on Dowdell Avenue, Gold Course Drive West, and
Redwood Drive, and Developer has executed an Improvement Agreement requiring installation
of improvements within one year of the date of City Council approval of the Map; and
WHEREAS, Developer has posted two Irrevocable Letters of Credit, each in the amount
of $620,000, as security to guarantee the installation of the aforementioned improvements
pursuant to the requirements of Rohnert Park Municipal Code 16.16.070; and
WHEREAS, the aforementioned improvements are included in the 2011 Update of the
Public Facilities Financing Plan ( "PFFP "), and the Developer is eligible for PFFP credits against
PFFP fees due at time of building permits, and Developer has executed a Reimbursement
Agreement providing fee credits in the amount $734,654; and
WHEREAS, Developer, who will retain ownership of Lot 1 within the map, has
executed a Landscape Maintenance Agreement, providing for the ongoing maintenance of
landscape improvements within the public right -of -way abutting the property by the property
owner; and
WHEREAS, McDonald's, Inc, future owner of Lot 2 within the map, has executed a
Landscape Maintenance Agreement, providing for the ongoing maintenance of landscape
improvements within the public right -of -way abutting the property by the property owner.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert
Park that it does hereby authorize and approve Parcel Map 183, which is attached hereto and
incorporated by this reference as Exhibit A, and accepts, subject to improvement, the Offers of
Dedication for Dowdell Avenue, Golf Course Drive West, and Redwood Drive, the Public Utility
Easement, the Sidewalk Easement, and the Emergency Vehicle Access Easement.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed
to execute the Improvement Agreement, the Reimbursement Agreement, and the Landscape
Maintenance Agreements, in substantially similar form to those agreements attached hereto and
incorporated by this reference as Exhibits B, C and D, respectively, subject to minor modification
by the City Manager or City Attorney.
DULY AND REGULARLY ADOPTED this 22nd day of July, 2014.
ICJ
City Clerk
CITY OF ROHNERT PARK
Mayor
CA
Attachments: Exhibit A, B, C, D(1) and D(2)
BELFORrE: AYE MACKCNz1E: ABSENT STAFFORD: AYE AHANOTU: AYE CALLINAN: AYE
AYES: (4) NOES: (0) ABSENT-(I)---- ABSTAINn(0) -
2014 -093
SOa 0 �0b$1 V' NOTE:
�6 X56 CALIFORNIA COORDINATE SYSTEM, ZONE 2, THESE
TIES WERE PERFORMED ON FEBRUARY 12, 2.012.
D
o ALL COORDINATES AND DISTANCES ARE GRID VALUES.
CD
w
DO
Do P�eEO
o ; oSC s
SOag6,"18h
1, g6•
h�
REFERENCE DATA
Rt RECORD OF SUEVEY; 475 MAPS, 11 S.C.R.
R2 RECORD OF SUEVEY; 488 MAPS, 20 S.C.R.
BASIS OF BEARINGS:
BASIS OF BEARINGS: N 29 °44'42° E BETWEEN FOUND CENTERLINE
MONUMENTS ALONG REDWOOD DRIVE AS SHOWN ON RECORD OF SURVEY
FILED IN BOOK 488 OF MAPS, PAGE 20, SONOMA COUNTY RECORDS.
EASEMENT ABANDONMENT:
ABANDONMENT OF THE PUBLIC EASEMENT AND RIGHT OF
WAY, RECORDED ON DOCUMENT NUMBER 2013 - 043187,
SONOMA COUNTY RECORDS, PER SECTION 66445 (j) OF
THE SUBDIVISION MAP ACT.
RECORD OF SURVr- Y
475 MAPS 71
N I HOME DEPOT USA INC.
/ CITY OF DN 1991 -- 095261
=' ( ROHIVERT PARK
3/4" IRON PIPE' O1V 1999-07272,3
LS 476'-,-,1 N 89 °34'56" W 553.16' (Rl-R2-
I I laoT 442.43'
20' '. 20' 1 18'
w
HD DEVELOPMENT
r
O
18
CITY OF ROHNERT PARK
N �
PARCEL MAP NO. 183
O I
N
D1V 1999-09110-91
( BOUNDARY SHEET )
N
O
51'
ACCESS EASEMENT BY
KARATE INSTRUMENT/
0 1
HOME DEPOT USA 1 1VC
DN 7997 -09262
( j
Lyi
PK NAIL &BRASS
/ Q
MCDONALD'S CORPORATION, A DELAWARE CORPORATION PER
0
rn
DISK, LS 4760
76.33'
Z rn
N
0
W N
�c
>, n
Q
w
w
OFFICIAL RECORDS OF SONOMA COUNTY
J N
O
�p
o
N
S 89305" E
W N
Q p
O
O
STATE OF CALIFORNIA
�
z
60.91
� z
� o
18' PUBLIC
Q
RIGHT OF WAY
cb
DEDICATION
'Cb
ti
E`�
1
Q Q
/v ,
LOT 1
2.98 Acres
a w PUBLIC
V� RIGHT OF WAY
GENERAL NOTES:
DISTANCES AND DIMENSIONS ARE IN FEET AND DECIMALS THEREOF.
ALL DIMENSIONS ARE GROUND DISTANCES UNLESS OTHERWISE SPECIFIED.
THE HEAVY BORDER INDICATES THE BOUNDARY OF THE LANDS
SUBDIVIDED BY THIS MAP.
ALL TIES SHOWN HEREON ARE PERPENDICULAR AND PARALLEL UNLESS
SHOWN OTHERWISE.
MILLBRAE AVE.
S e=
LEERED AVE.
GOLF COURSE
THIS w
PROJECT
P; N
Y
SCALE: 1" = 50'
0 50 100 150
0
FARM NO. 162
SANTA ROSA FARMS N0. 2 N
27 MAPS SCR. PAGE 74 °o
O
z � O
�O J II
TI 0
40
S 89 °30'15" E
437.57'
S 89'34'56" E 499.49
0 N 89'34'56" W 555.29' (R1 -R2 -M)
N 893456" W _
GOLF COURSE DRIVE WEST
° (FORMERLY WILFRED AVENUE)
to N00'06'04
m 30.11'
N
O
oz 61.92'
N 45'15'13" E
21.93
NAIL & BRASS DISK
STAMPED RCE 31491
LOST IN CONSTRUCTION
LEGEND
ENTERPRISE DR.
LOCATION MAP
NO SCALE
1/2" IRON PIPE SET W /PLASTIC PLUG TAGGED LS 5316
PK NAIL WITH 1 1/2" BRASS DISK SET, TAGGED LS 5316
BRASS DISK IN MONUMENT WELL STAMPED RCE 10578
FOUND 1/2 " IRON PIPE TAGGED AS NOTED
FOUND PK NAIL WITH BRASS DISK, TAGGED AS NOTED
DELTA
RADIUS
LENGTH
EASEMENT
MEASURED DISTANCE
SONOMA COUNTY RECORDS
DOCUMENT NUMBER
IN FAVOR OF LOT
EMERGENCY VEHICULAR ACCESS EASEMENT
PRIVATE
PUBLIC UTILITY EASEMENT
SIDEWALK EASEMENT
SANITARY SEWER
STORM DRAIN
SUBDIVISION BOUNDARY
LOT LINE
EASEMENT LINE -
CENTERLINE
0
7=t
OO
•
0
R
L
ESMT.
M
S.C.R.
DN
I FO
E. V. A. E.
P VT.
P.U.E.
SWE
S.S.
S.D.
SURROUNDING PROPERTY -
MEASURED TIE ------ ------ ..-..-
? N
IN
HD DEVELOPMENT
O
18
CITY OF ROHNERT PARK
OE MARYLAND
PARCEL MAP NO. 183
D1V 1999-09110-91
( BOUNDARY SHEET )
ACCESS EASEMENT BY
SEPARATE INSTRUMENT
51'
ACCESS EASEMENT BY
KARATE INSTRUMENT/
A SUBDIVISION OF THE LANDS OF COBT, LLC AN OREGON LIMITED
HOME DEPOT USA 1 1VC
DN 7997 -09262
( j
LIABILITY COMPANY; CBI, LLC AN OREGON LIMITED LIABILITY COMPANY
LIABILITY
PK NAIL &BRASS
/ Q
MCDONALD'S CORPORATION, A DELAWARE CORPORATION PER
RIGHT OF WAY
DEDICATION
DISK, LS 4760
76.33'
�ryQ�O
-w
0
(R1 -M)�
�
�c
92.73'
o'°
OFFICIAL RECORDS OF SONOMA COUNTY
o
s6e8s•
�2'4g M�
Q�
S 89305" E
N
rn
o ___
STATE OF CALIFORNIA
2)
b
� J
�oa�b
60.91
z
� o
I
cb
'Cb
Q Q
/v ,
C5
oo
N
Q
'v'Qj ry
/¢
m
N
/
j� a
/�
LOT 2
N ^/ O
ol o
w
1.00 Acres
U
/M h O
7 Q I Iz.
a�
b
FARM NO. 162
SANTA ROSA FARMS N0. 2 N
27 MAPS SCR. PAGE 74 °o
O
z � O
�O J II
TI 0
40
S 89 °30'15" E
437.57'
S 89'34'56" E 499.49
0 N 89'34'56" W 555.29' (R1 -R2 -M)
N 893456" W _
GOLF COURSE DRIVE WEST
° (FORMERLY WILFRED AVENUE)
to N00'06'04
m 30.11'
N
O
oz 61.92'
N 45'15'13" E
21.93
NAIL & BRASS DISK
STAMPED RCE 31491
LOST IN CONSTRUCTION
LEGEND
ENTERPRISE DR.
LOCATION MAP
NO SCALE
1/2" IRON PIPE SET W /PLASTIC PLUG TAGGED LS 5316
PK NAIL WITH 1 1/2" BRASS DISK SET, TAGGED LS 5316
BRASS DISK IN MONUMENT WELL STAMPED RCE 10578
FOUND 1/2 " IRON PIPE TAGGED AS NOTED
FOUND PK NAIL WITH BRASS DISK, TAGGED AS NOTED
DELTA
RADIUS
LENGTH
EASEMENT
MEASURED DISTANCE
SONOMA COUNTY RECORDS
DOCUMENT NUMBER
IN FAVOR OF LOT
EMERGENCY VEHICULAR ACCESS EASEMENT
PRIVATE
PUBLIC UTILITY EASEMENT
SIDEWALK EASEMENT
SANITARY SEWER
STORM DRAIN
SUBDIVISION BOUNDARY
LOT LINE
EASEMENT LINE -
CENTERLINE
0
7=t
OO
•
0
R
L
ESMT.
M
S.C.R.
DN
I FO
E. V. A. E.
P VT.
P.U.E.
SWE
S.S.
S.D.
SURROUNDING PROPERTY -
MEASURED TIE ------ ------ ..-..-
? N
IN
RADIAL
O
18
CITY OF ROHNERT PARK
Ln
PARCEL MAP NO. 183
( BOUNDARY SHEET )
51'
51'
A SUBDIVISION OF THE LANDS OF COBT, LLC AN OREGON LIMITED
LIABILITY COMPANY; CBI, LLC AN OREGON LIMITED LIABILITY COMPANY
LIABILITY
9' PUBLIC
MCDONALD'S CORPORATION, A DELAWARE CORPORATION PER
RIGHT OF WAY
DEDICATION
\
DOCUMENT NO. 2007136386, OFFICIAL RECORDS OF SONOMA COUNTY,
0
BEING A SUBDIVISION OF FARM NO. 162, SANTA ROSA FARMS NO. 2,
AS RECORDED IN BOOK 21 PAGE 14 OF MAPS
o'°
OFFICIAL RECORDS OF SONOMA COUNTY
o
s6e8s•
�2'4g M�
CITY OF ROHNERT PARK COUNTY OF SONOMA
iS6g.
s488?R2,e
rn
o ___
STATE OF CALIFORNIA
2)
2 LOTS 4.58 ACRES JULY 2014
FILE NO. PL2012- 03OTPM APN 045 - 055 -029
J� BAECHTEL HUDIS
CONSULTING CIVIL ENGINEERS & PLANNERS
131 STONY CIRCLE, SUITE 1000, SANTA ROSA, CA. 13016
I (707) 542 -8795
SHEET 3 OF 5
Exhibit B
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL, TO: )
)
City of Rohnert Park )
130 Avram Avenue )
Rohnert Park, California 94928 -2486 )
Attention: City Clerk )
(Space Above This Line for Recorder's Use OnI.0
Exempt from recording fee per Gov. Code § 27383.
IMPROVEMENT AGREEMENT
CITY OF ROHNERT PARK
OXFORD SUITES AND MCDONALD'S PARCEL MAP
THIS IMPROVEMENT AGREEMENT (the "Agreement ") is made and entered into on this 24th
day of June, 2014 (the "Effective Date ") by and between COBT, LLC /CBI, LLC ( "Developer "), and the
CITY OF ROIINERT PARK, a California municipal corporation ( "City ").
RECITALS
A. On February 25, 2014, the Subdivision Committee of the City of Rolurert Park adopted
Resolution No. 2014 -01, approving the tentative map for the Oxford Suites and McDonald's Parcel Map
Subdivision, prepared by Baechtel -Hudis and dated June 26, 2012, 2014 (the "Tentative Map "), subject to
certain conditions of approval (the "Conditions ").
B. The Conditions require either (1) that certain improvements (the "Improvements ") be
constructed prior to approval of the final map, or (2) that Developer enter into an agreement with the City
providing for the future construction of such Improvements.
C. Developer has applied to City for final map approval without having completed the
required Improvements and therefore will enter into an agreement with the City providing for the future
construction and installation of the Improvements, as required by Govermnent Code section 66462(a)(1).
D. Developer has submitted plans, specifications and drawings for the sheet improvements
prepared by Baechtel - Hudis, Iinprovernent Plans for Oxford Suites Project, OS Innco, Inc., 67 Golf
Course Drive Kest, Rohnert Park, CA, 11 Sheets (Sheets Cl -C11) and approved by the Deputy City
Engineer on June 4, 2014, joint trench plans prepared by Nor -Coast Utility Design, Inc., Joint Trench
C'onrposite for Oxford Suites Hotel, Rohnert Park, CA, 3 Sheets (Sheets 1 -3) and approved by the Deputy
City Engineer on June 4, 2014, streetlight plans prepared by JRA Electrical Engineers, Inc, Rohnert Park
Hotel Street Lighting, 4 Sheets (Sheets E0.1 -E1.2) and approved by the Deputy City Engineer on June 4,
2014, and landscaping plans prepared by Stantec Architecture, Inc. Landscape Plans for McDonald's
USA, LLC: COBT, LLCICBI dba Oxford Suites, 13 Sheets (Sheets L1.0 -L5.0) and approved by the
Deputy City Engineer on June 4, 2014, (hereinafter collectively referred to as the "Improvement Plans "),
E. City and Developer desire to enter an agreement providing for the construction and
installation of the Improvements in accordance with the Improvement Plans.
OAK # #4820 -4798 -3630 v1
AGREEMENT
NOW, THEREFORE,, in consideration of the faithful performance of the terns and conditions set
forth in this Agreement, the parties hereto agree as follows:
1. Purpose. The purpose of this Agreement is to guarantee completion of the Improvements
and ensure satisfactory performance by Developer of Developer's obligations to satisfy the Conditions.
2. Property Subject t to Agreement. The property which is the subject of this Agreement is
located in the City of Rohnert Park, Sonoma County, California, and is described as Farm No. 162, Santa
Rosa Farms No. 2as recorded in Book 21 Page 14 of Maps Official Records of Sonoma County (the
"Property ")
3. Duty to Install Improvements. Developer will construct, install and complete, or cause to
be constructed, installed and completed, at the Developer's sole cost and expense, the Improvements, in
accordance with the Improvement Plans (defined in Recital D. above) and to the satisfaction of the City
Engineer, in his reasonable discretion, Developer will also supply all labor and materials therefor, all in
strict accordance with the terms and conditions of this Agreement. The construction, installation and
completion of the Improvements and all labor and materials furnished in connection therewith are
hereinafter referred to collectively as the "Work."
City shall not be responsible or liable for the maintenance or care of the Improvements until City formally
approves and accepts them in accordance with its policies and procedures. City shall exercise no control
over the Improvements until approved and accepted. Any use by any person of the Improvements, or any
portion thereof, shall be at the sole and exclusive risk of the Developer at all times prior to City's
acceptance of the Improvements. Developer shall maintain all the Improvements in a state of good repair
until they are completed by Developer and approved and accepted by City. Maintenance shall include,
but shall not be limited to, repair of pavement, curbs, gutters, sidewalks, signals, parkways, water mains,
and sewers; maintaining all landscaping in a vigorous and thriving condition reasonably acceptable to
City; removal of debris from sewers and storm drains; and sweeping, repairing, and maintaining in good
and safe condition all streets and street improvements. It shall be Developer's responsibility to initiate all
maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work when
notified to do so by City. If Developer fails to properly prosecute its maintenance obligation under this
section, City may do all work necessary for such maintenance and the cost thereof shall be the
responsibility of Developer and its surety under this Agreement. Prior to undertaking said maintenance
work, City agrees to notify Developer in writing of the deficiencies and the actions required to be taken
by the Developer to cure the deficiencies. Developer shall have thirty (30) days from the date of the
notice within which to correct, remedy or cure the deficiency. If the written notification states that the
problem is urgent and relates to the public health and safety, then the Developer shall have twenty -four
(24) hours to correct, remedy or cure the deficiency. City shall not be responsible or liable for any
damages or injury of any nature in any way related to or caused by the Improvements or their condition
prior to acceptance.
4. Completion Date. Developer will complete the Work within one year of the Effective
Date. All Work will be completed in a good and workmanlike manner in accordance with accepted
design and construction practices. This completion date may be extended by the City in its sole and
absolute discretion at the request of Developer, which request shall be accompanied by a written
assurance acceptable to the City Attorney that the securities required by Section 15 shall remain
enforceable throughout the term of the extension.
OAK H48204798 -3630 v1
5. Estimated Cost of Work. The estimated cost of the Work is six hundred twenty thousand
Dollars ($620,000.00). Notwithstanding this estimate, Developer hereby acknowledges and agrees that
(a) the actual costs to complete the Work may significantly exceed this estimate, (b) this estimate in no
way limits Developer's financial obligation, and (c) that Developer is obligated to complete the Work at
its own cost, expense, and liability.
6. Modifications to the Plans. Approval of this Agreement by City does not release
Developer of its responsibility to correct mistakes, errors or omissions in the Improvement Plans. If, at
any time, in the opinion of the City Engineer, in his reasonable discretion, the Improvement Plans are
deemed inadequate in any respect Developer agrees to make such modifications, changes or revisions as
necessary in order to complete the Work in a good and workmanlike manner in accordance with accepted
design and construction standards.
7. Repairs. Developer agrees to repair or have repaired in a timely manner at its sole cost
and expense all public roads, streets, or other public or private property damaged as a result of or
incidental to the Work or in comlection with the development of the Property or to pay to the property
owner of any damaged road, street or property the full cost of such repair. In addition, Developer shall
obtain the written acceptance of such repair or payment from any owner whose private property was
repaired by Developer or to whom Developer has paid the full cost of such repair in accordance with this
Section 7. City shall be under no obligation whatsoever to accept the Work completed under this
Agreement until such time as all repairs have been completed or have been paid for and written
acceptances have been provided to the City Engineer, except as otherwise provided in section 12.1.
8. Foreman or Superintendent. Developer shall give personal attention to the Work. A
competent foreman or superintendent, satisfactory to the City Engineer, in his reasonable discretion, with
authority to act for and on behalf of Developer, shall be named in writing by Developer prior to
commencement of the Work, shall be present on the Property during the performance of the Work and
may not be changed without the advance notification to and satisfaction and concurrence of the City
Engineer.
9. Examination of Work. All of the Work shall be performed to the satisfaction of the City
Engineer, in his reasonable discretion. The City and its authorized agents shall, at all times during the
performance of the Work, have free access to the Work and shall be allowed to examine the Work and all
materials used and to be used in the Work.
10. City's Inspection Administration and Testing Costs. Developer shall pay to City the
actual cost for all inspection, administration and testing services furnished by City in connection with this
Agreement, including those performed by consultants under contract with the City (the "City Costs ").
City agrees not to double charge Developer (through the imposition of both a processing fee and a
consultant charge) for any individual monitoring, inspection, testing or evaluation service. In addition,
City agrees to limit its use of outside consultants to those reasonably necessary or desirable, as
determined by the City Manager or his designee in his reasonable discretion, to accomplish the requisite
inspection, administration and monitoring. The estimated cost for the inspection, administration and
testing services is nine thousand, three hundred fifty five Dollars and fifty cents ($9,355.50) (the
"Estimated Cost "). Concurrently with the execution of this Agreement, Developer shall deposit an
amount equal to the Estimated Cost with City for the payment of the City Costs. In the event that the
Estimated Cost is insufficient to cover the actual City Costs incurred, Developer shall, upon notice in
writing by the City Engineer, deposit such additional amount as may be required to pay the City Costs.
Any amount of the Estimated Cost, initial deposit or additional amounts deposited remaining after
payment of all City Costs will be returned to Developer. City may, at its discretion, deposit such funds in
an interest - bearing account and retain any and all interest earned.
OAK N4820 -4798 -3630 v1
the City Attorney. The security shall be conditioned upon the faithful performance of this
Agreement with respect to the Work and shall be released by the City effective upon the date of
recordation of the notice of acceptance of the improvements as described in Section 12.2 and
Developer's delivery of the Warranty Security described in Section 15.3.
15.2 Labor and Materials Securitv. Developer shall furnish and deliver labor and
materials security in the amount of six hundred and twenty thousand Dollars ($620,000.00),
concurrently with the execution of this Agreement, which security must meet the requirements of
Government Code Section 66499.2, if applicable, and Rohnert Park Municipal Code Section
16.16.070 and be acceptable to the City Attorney. The security shall secure payment to the
contractor(s) and subcontractor(s) performing the Work and to all persons furnishing labor,
materials or equipment to them. The City shall retain each security until both (i) the City accepts
the Work in accordance with Section 12 above and (ii) the statute of limitations to file an action
under Civil Code section 3114 et seq, has expired. After said date, the security may be reduced
by the City Engineer to an amount not less than the total amount claimed by all claimants for
whom claims of lien have been recorded and notice given in writing to the City Council. The
balance of the security shall be retained until the final settlement of all such claims and
obligations. If no such claims have been recorded, the security shall be released in full by the
City Engineer.
15.3. Warranty Security. Developer shall furnish and deliver warranty security in the
amount specified in section 16.16.070 c. of the Rohnert Park Municipal Code. The amount of
ninty three thousand five hundred Dollars ($93,500.00) shall be provided upon acceptance of the
hnprovements and prior to release of the Performance Security. The security shall be in a form
acceptable to the City Attorney and shall guarantee and warranty the Work for a period of one (1)
year following the date of recordation of the notice of acceptance of the improvements against
any defective work or labor done, or defective materials furnished.
16. Additional Security. If either upon execution of this Agreement or during the course of
performance the City considers that it is necessary to have Developer post additional security, the City
may require either a cash deposit or a surety bond guaranteeing perfonnance in a form and signed by
sureties satisfactory to it. The condition of the security shall be that if Developer fails to perform its
obligation under this Agreement, the City may in the case of a cash bond act for it using the proceeds or
in the case of a surety bond require the sureties to perforrn the obligations of the Agreement.
17. No Waiver by City. Inspecting of the work and/or materials, or approval of work and /or
materials, or a statement by an officer, agent or employee of the City indicating the work complies with
this Agreement, or acceptance of all or any portion of the work and /or materials, or payments thereof, or
any combination of all of these acts shall not relieve Developer or its obligation to fulfill this Agreement;
nor is the City by these acts prohibited from bringing an action for damages arising from the failure to
comply with this Agreement.
18. Warranty Period, Repair and Reconstruction. Without limiting the foregoing, Developer
expressly warrants and guarantees all work performed under this Agreement and all materials used in the
Work for a period of one (1) year after the date of recordation of the notice of acceptance of the
improvements in accordance with Section 12. If, within this one (1) year period, any Improvement or part
of any Improvement installed or constructed, or caused to be installed or constructed by Developer, or any
of the work done under this Agreement, fails to fulfill any of the requirements of the Improvement Plans
or this Agreement, Developer shall, without delay and without cost to City, repair, replace or reconstruct
any defective or otherwise unsatisfactory part or parts of the Work or Improvement to the satisfaction of
the City Engineer. Should Developer fail to act promptly, by failing to repair, replace or reconstruct work,
OAK #48204798 -3630 v1
the City Attorney. The security shall be conditioned upon the faithful performance of this
Agreement with respect to the Work and shall be released by the City effective upon the date of
recordation of the notice of acceptance of the improvements as described in Section 12.2 and
Developer's delivery of the Warranty Security described in Section 15.3.
15.2 Labor and Materials Securitv. Developer shall furnish and deliver labor and
materials security in the amount of six hundred and twenty thousand Dollars ($620,000.00),
concurrently with the execution of this Agreement, which security must meet the requirements of
Government Code Section 66499.2, if applicable, and Rolmert Park Municipal Code Section
16.16.070 and be acceptable to the City Attorney. The security shall secure payment to the
contractor(s) and subcontractor(s) performing the Work and to all persons furnishing labor,
materials or equipment to them. The City shall retain each security until both (i) the City accepts
the Work in accordance with Section 12 above and (ii) the statute of limitations to file an action
under Civil Code section 3114 et seq. has expired. After said date, the security may be reduced
by the City Engineer to an amount not less than the total amount claimed by all claimants for
whom claims of lien have been recorded and notice given in writing to the City Council. The
balance of the security shall be retained until the final settlement of all such claims and
obligations. If no such claims have been recorded, the security shall be released in full by the
City Engineer.
15.3. Warranty Security. Developer shall furnish and deliver warranty security in the
amount specified in section 16.16.070 c. of the Rohnert Park Municipal Code. The amount of
ninty three thousand five hundred Dollars ($93,500.00) shall be provided upon acceptance of the
Improvements and prior to release of the Performance Security. The security shall be in a form
acceptable to the City Attorney and shall guarantee and warranty the Work for a period of one (1)
year following the date of recordation of the notice of acceptance of the improvements against
any defective work or labor done, or defective materials furnished.
16. Additional Security. If either upon execution of this Agreement or during the course of
performance the City considers that it is necessary to have Developer post additional security, the City
may require either a cash deposit or a surety bond guaranteeing performance in a form and signed by
sureties satisfactory to it. The condition of the security shall be that if Developer fails to perform its
obligation under this Agreement, the City may in the case of a cash bond act for it using the proceeds or
in the case of a surety bond require the sureties to perform the obligations of the Agreement.
17. No Waiver by City. Inspecting of the work and /or materials, or approval of work and /or
materials, or a statement by an officer, agent or employee of the City indicating the work complies with
this Agreement, or acceptance of all or any portion of the work and /or materials, or payments thereof, or
any combination of all of these acts shall not relieve Developer or its obligation to fulfill this Agreement;
nor is the City by these acts prohibited from bringing an action for damages arising from the failure to
comply with this Agreement.
18. Warranty Period; Repair and Reconstruction. Without limiting the foregoing, Developer
expressly warrants and guarantees all work performed under this Agreement and all materials used in the
Work for a period of one (1) year after the date of recordation of the notice of acceptance of the
improvements in accordance with Section 12. If, within this one (1) year period, any Improvement or part
of any Improvement installed or constructed, or caused to be installed or constructed by Developer, or any
of the work done under this Agreement, fails to fulfill any of the requirements of the Improvement Plans
or this Agreement, Developer shall, without delay and without cost to City, repair, replace or reconstruct
any defective or othertivise unsatisfactory part or parts of the Work or Improvement to the satisfaction of
the City Engineer. Should Developer fail to act promptly, by failing to repair, replace or reconstruct work
OAK #482011798 -3630 v1
thirty (30) days after notification by City, or in accordance with this requirement, or should the
exigencies of the situation require repairs, replacements or reconstruction to be made before Developer
can be notified, City may, at its option, make the necessary repairs, replacements or perform the necessary
reconstruction and Developer shall pay to the City upon demand the actual cost of such repairs,
replacements or reconstruction.
19. Erosion Control. Pursuant to Rohnert Park Municipal Code Chapter 15.52, Developer
shall be responsible for the control of erosion on the Property and shall prevent its entry into the storm
drainage system.
20. Developer Not Agent of City. Neither Developer nor Developer's contractors,
subcontractors, agents, officers, or employees are agents, partners, joint venturers or employees of City
and the Developer's relationship to the City, if any, arising herefrom is strictly that of an independent
contractor. Developer's contractors and subcontractors are exclusively and solely under the control and
dominion of Developer. Further, there are no intended third party beneficiaries of any right or obligation
assumed by the Parties.
21. Indemnification. Developer agrees to indemnify, defend and hold the City, its elective
and appointed boards, commissions, officers, agents, employees and consultants, harmless from and
against any and all claims, liabilities, losses, damages or injuries of any kind (collectively, "Claims ")
arising out of Developer's, or Developer's contractors', subcontractors', agents' or employees', acts,
omissions, or operations under this Agreement, including, but not limited to, the performance of the
Work, whether such acts, omissions, or operations are by Developer or any of Developer's contractors,
subcontractors, agents or employees, except to the extent such Claims are caused by the sole negligence
or willful misconduct of the City. This indemnification includes, without limitation, the payment of all
penalties, fines, judgments, awards, decrees, attorneys' fees, and related costs or expenses, and the
reimbursement of City, its elected officials, officers, employees, and/or agents for all legal expenses and
costs incurred by each of them.
The aforementioned indemnity shall apply regardless of whether or not City has prepared,
supplied or approved plans and /or specifications for the Work or Improvements and regardless of whether
any insurance required under this Agreement is applicable to any Claims. The City does not and shall not
waive any of its rights under this indemnity provision because of its acceptance of the bonds or insurance
required under the provisions of this Agreement. Developer's obligation to indemnify City shall survive
the expiration or termination of this Agreement.
22. Insurance. Developer shall maintain Commercial General Liability Insurance
protecting the City from incidents as to bodily injury liability and property damage liability that may
occur as a result of the Work and additional repairs. Developer shall provide certificate(s) of insurance
and endorsements to City before any Work commences. The insurance policy shall contain, or be
endorsed to contain, the following provisions:
(1) The City, its officers, elected officials, employees, consultants, agents and
volunteers are to be covered as additional insured's as respects to liability arising
out of activities performed by or on behalf of Developer. The coverage shall
contain no special limitations on the scope of protection afforded to the City, its
officers, elected officials, employees, consultants, agents and volunteers.
(2) The amounts of public liability and property damage coverage shall not be less
than $3,000,000 (Three Million Dollars) per occurrence fbr bodily injury,
personal injury and property damage.
OAK #4£20- 4798 -3630 v1
(3) The insurance shall be maintained in full force until the work has been completed
to the satisfaction of the City Engineer.
(4) The insurance policy shall provide for 30 days notice of cancellation to the City.
The policy shall not be cancelled earlier than nor the amount of coverage be
reduced earlier than 30 days after the City receives notice from the insurer of the
intent of cancellation or reduction.
(5) Any failure to comply with the reporting provisions of the policy shall not affect
the coverage provided to the City, its officers, elected officials, employees,
consultants, agents and volunteers.
(6) Developer's insurance coverage shall be primary insurance as respects the City,
its officers, elected officials, employees, consultants, agents and volunteers. Any
insurance or self-insurance maintained by the City, its officers, elected officials,
employees, consultants, agents and volunteers shall be in excess of Developer's
insurance and shall not contribute to it.
(7) Any deductibles or self - insured retentions must be declared to and approved by
City, At the option of City, either: (a) the insurer shall reduce or eliminate such
deductibles or self - insured retentions as respects City, its elected officials,
officers, employees, agents, and volunteers; or (b) Developer and its contractors
shall provide a financial guarantee satisfactory to City guaranteeing payment of
losses and related investigation costs, claims, and administrative and defense
expenses.
(8) Developer and Developer's insurance company agree to waive all rights of
subrogation against City, its officers, elected officials, employees, agents and
volunteers for losses paid under Developer's workers' compensation insurance
policy which arise from the work performed by Developer.
In the event that Developer's insurance is cancelled, Developer shall provide replacement coverage or all
work must cease as of the cancellation date until replacement insurance coverage is provided.
23. Workers' Compensation Insurance. Developer shall provide, or cause to be provided,
Workers' Compensation insurance as required by law, and shall cause its contractors and their
subcontractors, agents and representatives to also maintain Workers' Compensation insurance as required
by law. No Work shall commence until such Workers' Compensation insurance is obtained and in full
force and effect.
24. Compliance with Laws. Developer shall fully comply with all federal, state and local
laws, ordinances and regulations in the performance of this Agreement. Developer shall, at its own cost
and expense, obtain all necessary permits and licenses for the Work, give all necessary notices, pay all
fees and taxes required by law and make any and all deposits legally required by those public utilities that
will serve the development on the Property. Copies and /or proof of payment of said permits, licenses,
notices, fee and tax payments and deposits shall be furnished to the City Engineer upon request.
25. Encroachment Permits. Developer shall obtain, at its sole cost and expense, any
encroaclunent permits required by the City in order to perform the Work.
OAK #4820-1798-.3630 v1
26. Payments. Developer agrees that it will pay, when due, all those furnishing labor or
materials in connection with the Work. Developer further agrees that pursuant to Government Code
section 66499.7, the Labor and Materials Bond provided by Developer in accordance with Section 15.2 of
this Agreement shall not be released if any mechanics liens or stop notices are outstanding, unless said
liens are released by bond in compliance with Civil Code section 3143.
27. Notice of Breach and Default. The occurrence of any of the following constitutes a
breach and default of this Agreement:
(1) Developer refuses or fails to complete the Work within the time set forth herein
or abandons the Work.
(2) Developer assigns the Agreement without the prior written consent of City.
(3) Developer is adjudged bankrupt or makes a general assignment for the benefit of
creditors, or a receiver is appointed in the event of Developer's insolvency.
(4) Developer or Developer's contractors, subcontractors, agents or employees, fail
to comply with any terms or conditions of this Agreement.
(5) Any delay in the construction of any portion of the Work or repairs, which in the
reasonable opinion of the City Engineer, endangers public or private property.
The City may serve written notice of breach and default upon Developer and the financial institution
holding the security.
28. Breach of Agreement; Performance by City. If the City gives Developer notice, under
Section 27, of breach and default of this Agreement, the City may proceed to complete the Work by
contract or other method the City considers advisable, at the sole expense of Developer. Developer,
immediately upon demand, shall pay the costs and charges related to the Work and any subsequent
repairs. City, without liability for doing so, may take possession of and utilize in completing the Work
and repairs, if any, such materials and other property belonging to Developer as may be on or about the
Property and necessary for completion of the work. In the event of default, the financial institution
holding the security shall be liable to City to pay the face amount of the bonds, as specified under
Section 15.
29. Remedies. City may bring legal action to compel performance of this Agreement and
recover the costs of completing the Work and /or repairs, if any, including City's administrative and legal
costs. Developer agrees that if legal action is brought by City under this section of the Agreement,
Developer shall pay all of the costs of suit, reasonable attorney fees, arbitration costs and such other costs
as may be determined by the court or arbitrator. No failure on the part of City to exercise any right or
remedy hereunder shall operate as a waiver of any other right or remedy that City may have hereunder.
30. Final Drawings. Upon completion of the Work and prior to final acceptance, Developer
shall deliver to City a set of "as- built" drawings. These drawings shall be in a form acceptable to the City
Engineer, shall be certified as being "as- built" and shall reflect the Work as actually constructed, with any
and all changes incorporated therein. Said drawings shall be signed and sealed as accurate by the
engineer of record.
31. Attorney Fees. Should any legal action or arbitration be brought by either party because
of breach of this Agreement or to enforce any provision of this Agreement, the prevailing party shall be
OAK #4520 -4798 -3630 v1
entitled to all costs of suit, reasonable attorney fees, arbitration costs and such other costs as maybe
determined by the court or arbitrator.
32. Notices. Formal written notices, demands, correspondence and conununications between
City and Developer shall be sufficiently given i£ (a) personally delivered; or (b) dispatched by next day
delivery by a reputable carrier such as Federal Express to the offices of City and Developer indicated
below, provided that a receipt for delivery is provided; or (c) if dispatched by first class mail, postage
prepaid, to the offices of City and Developer indicated below. Such written notices, demands,
correspondence and communications may be sent in the same manner to such persons and addresses as
either party may from time -to -time designate by next day delivery or by mail as provided in this section.
City:
City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Manager
with a copy to:
City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Attorney
Developer:
COBT, LLC /CBI, LLC
475 NE Bellevue Drive, Suite 210
Bend, OR 97701
Attn: Mr. Curt Baney
with a copy to:
Ball Janik, LLP
15 SW Colorado Avenue, Suite K
Bend, OR 97702
Attn: Ms. Laura Cooper
Notices delivered by deposit in the United States mail as provided above shall be deemed to have been
served two (2) business days after the date of deposit if addressed to an address within the State of
California, and three (3) business days if addressed to an address within the United States but outside the
State of California.
33. Transfers, Assigmnents. Developer may assign its obligations under this Agreement to
successor owner(s) of the Site with the prior written approval of the City. In connection with any such
assigrunent, Developer and its assignee shall execute and deliver to City a written assigmnent and
assumption agreement in a form acceptable to the City Attorney.
34, Binding Upon Heirs, Successors and Assigns. The terms, covenants and conditions of
this Agreement shall be binding upon all heirs, successors and assigns of the parties hereto; provided,
however, that this Agreement shall not be binding upon a purchaser or transferee of any portion of the
Property unless this Agreement has been assigned pursuant to Section 33, in which event this Agreement
shall remain binding upon Developer.
35, Headings. Section headings in this Agreement are for convenience only and are not
intended to be used in interpreting or construing the terms, covenants or conditions contained in this
Agreement.
OAK #1320 -1798 -3630 v1
36. Severability. If any provision of this Agreement is held, to any extent, invalid, the
remainder of this Agreement shall not be affected, except as necessarily required by the invalid provision,
and shall remain in full force and effect.
37. Entire Agreement. The terms and conditions of this Agreement constitute the entire
agreement between City and Developer with respect to the matters addressed in this Agreement. This
Agreement may not be altered, amended or modified without the written consent of both parties hereto.
38. Governing Law, Venue. This Agreement shall he construed and enforced in accordance
with the laws of the State of California, without reference to choice of law provisions. Any legal actions
under this Agreement shall be brought only in the Superior Court of the County of Sonoma, State of
California.
39. Authoritv. Each party executing this Agreement on behalf of a party represents and
warrants that such person is duly and validly authorized to do so on behalf of the entity it purports to bind
and if such party is a partnership, corporation or trustee, that such partnership, corporation or trustee has
full right and authority to enter into this Agreement and perform all of its obligations hereunder.
40. Time is of the Essence. Time is of the essence of this Agreement and of each and every
term and condition hereof.
41. Runs with the Land: Recordation, This Agreement pertains to and shall run with the
Property. Upon execution, this Agreement shall be recorded in the Official Records of Sonoma County.
IN WITNESS WHEREOF, City and Developer have executed this Agreement as of the Effective
Date.
Dated:
OAK #4820 -4798 -3630 v1
"CITY"
CITY OF ROIINERT PARK, a California
municipal corporation
By:
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
Dated:
"DEVELOPER"
COBT, LLC /CBI, LLC, Oregon Limited Liability
Corporation
By_.1
Its: Mana ger
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
ss.
COUNTY OF SONOMA )
On
before me,
(here insert name and title of the of
personally appeared who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged
to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
OAK #48204798 -3630 v1
Signature
(Seal)
ACKNOWLEDGMENT
S`I,A'I'E OF OREGON )
) ss.
COUNTY OF DESCI-IUTES )
Ott 3'U►r`i 1. 1�0 (V
before me, 7KOI ``A S /�4 .
(here insert name and title of the officer)
personally appeared �'6� i� S 'qP�� '-y , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is /axe subscribed to the within instrument and acknowledged
to me that he /she /They executed the same in his /her /their authorized capaeity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
OAK 84820=1798 -3630 vl
Exhibit C
PARTIES AND DATE
This Agreement is made this day of J 2014 by and between the City of Rohnert
Park, California, a Municipal Corporation ("City") and COST, LLC /CBI, LLC, Oregon limited
liability companies ( "Developer ").
2. RECITALS
2.1 The Developer has submitted an application to develop a 4.58 acre parcel identified by
Sonoma County Assessor as parcel number 045 - 055 -007 in the City ( "Developer's Property ")
shown in Exhibit "A" attached hereto.
2.2 As a condition to the development of Developer's Property, City required Developer to
design, construct and install the improvements generally described in Exhibit "B" attached
hereto (the "Improvements "). Improvement plans have been completed by Developer and
approved by the City pursuant to Chapter 16.16 of the Rohnert Park Municipal Code (Code).
2.3 Developer is willing to advance the costs of designing, financing, constructing, installing,
inspecting and bonding for the approved Improvements, subject to facility fee credits and cash
payments over time from the City.
2.4 City has found that this Agreement is in accordance with the requirements of Sections
3.28.080 of the Code and California Government Code Sections 66485 through 66489.
3. TERMS
3.1 Design and Construction of Improvements. Developer shall design, finance, construct
and install the Improvements, Developer shall be solely responsible for designing, financing,
constructing, installing, providing for the inspection and bonding of the Improvements. The
Improvements shall be fully completed and ready for acceptance prior to issuance of a
certificate of occupancy for any building being constructed on the Developer Property.
Developer shall not sell or otherwise transfer any portion of the Developer Property without
notifying the purchaser or transferee in writing, with a copy to the City, of the requirement that
the Improvements be completed prior to any occupancy on the Developer Property. The plans
and specifications for the Improvements have been submitted and approved by the City per
Grading Permit #BDGR2013- 00002. The design, construction and installation of the
Improvements shall be to the satisfaction of City in its sole and reasonable discretion per these
documents and their conditions of approval.
3.2 Source and Method of Reimbursement. City shall reduce Public Facility Pees collected
from the Developer in an amount up to the total costs associated with the design, financing,
construction and installation of the Improvements listed in Exhibit "B ". The initial estimated total
reimbursable amount is indicated in Exhibit "C" "Reimbursement Calculation" attached hereto.
In the event that fee credits are insufficient to provide full reimbursement to Developer, the City
shall reimburse the remaining funds from development fees paid by other development.
Reimbursements shall be made from and in accordance with the Public Facility Fee funds and
OAK H4829- 8079 -1311 v4
no other. Reimbursement of the remaining fee credits shall be paid only after City acceptance of
Improvements and only as funds become available in the City's Public Facilities Fee Fund. In
making the determination as to whether funds are available, City shall do the following:
a. Set aside sufficient amounts to meet debt service requirements on constructed projects
including but not limited to Subregionai System Expansion Debt Service;
b. Set aside sufficient amounts to finance scheduled capital improvement projects in the
City's Five -Year Capital Improvement Program Budget at the time of the determination
of funds availability; and
c. Make reimbursement payments to other developers due reimbursement for
improvements accepted prior to acceptance of Developer's Improvements,
3.3 Fee Obligation. Developer's obligation to pay the Public Facilities Fee for any
development on Developer's Property shall remain a debt and obligation of Developer until
completion and acceptance of the Improvements by City. In the event that the Improvements
are not completed by a date two years from the date Developer begins construction (which two
year period shall be extended to the extent the work is stopped by federal, state or local
agencies through no fault of the Developer) , any outstanding Public Facilities Fee shall be
immediately due and payable. If such fees are not paid as required, City may provide written
notice to Developer of its default. If such default is not corrected within 30 days from the date of
written notice, Developer agrees that the amount of any unpaid Public Facilities Fees may be
placed upon the Developer's Property as a lien and special assessment. The assessment shall
continue until it is paid, together with interest at the legal maximum rate computed from the date
of confirmation of the statement until payment. The assessment shall be collected at the same
time and in the same manner as ordinary municipal taxes are collected, and shall be subject to
the same penalties and procedure and sale in case of delinquency as is provided for ordinary
municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes
shall be applicable to the special assessment. In addition, the City may use any other available
legal means to collect the unpaid Public Facilities Fee and the choice of one remedy does not
affect the City's ability to use alternative remedies.
3.4 Term of Reimbursement Obligation, The City's obligation to reimburse the Developer
shall continue for two years from the date the Developer begins construction of the
Improvements (which two year period shall be extended to the extent the work is stopped by
federal, state or local agencies through no fault of the Developer) or the obligation is sooner
satisfied.
3.5 Maximum Reimbursement. The total amount of the reimbursement obligation over the
life of this Agreement for the Improvements shall be as determined by the CITY OF ROHNERT
PARK 2011 UPDATE TO THE PUBLIC FACILITIES FINANCE PLAN. The parties acknowledge
and agree that the credit amount for the Improvements is estimated to be SEVEN HUNDRED
AND THIRTY -FOUR THOUSAND, SIX HUNDRED AND FIFTY -FOUR DOLLARS
($734,654.00).
3.6 Inspection. The City shall have the right at all times to inspect the construction of the
Improvements to confirm compliance with City plans and specifications.
3.7 Areas and Quantities. The areas and quantities used to develop this reimbursement
agreement are based on the information and plans available at this time. The actual areas and
quantities may change at the time of dedication to the City and /or construction by the
OAK #4829 - 8079 -1311 v4
Developer. If it is determined by the City Engineer that the areas and quantities have changed,
the reimbursable amount may be adjusted accordingly.
3.8 Indemnity and Insurance.
a. Developer agrees to indemnify, defend and hold the City, its elective and
appointed boards, commissions, officers, agents, employees and consultants (collectively, the
"City Parties "), harmless from and against any and all claims, liabilities, losses, damages or
injuries of any kind (collectively, "Claims ") arising out of Developer's, or Developer's
contractors', subcontractors', agents' or employees', acts, omissions, or operations under this
Agreement, including, but not limited to, the performance of the Work, whether such acts,
omissions, or operations are by Developer or any of Developer's contractors, subcontractors,
agents or employees. The foregoing indemnification shall exclude Claims to the extent arising
from the negligence or intentional misconduct of the City or any of the City Parties. This
indemnification includes, without limitation, the payment of all penalties, fines, judgments,
awards, decrees, attorneys' fees, and related costs or expenses, and the reimbursement of City,
its elected officials, officers, employees, and /or agents for all legal expenses and costs incurred
by each of them.
b. The aforementioned indemnity shall apply regardless of whether or not City has
prepared, supplied or approved plans and /or specifications for the Work or Improvements and
regardless of whether any insurance required under this Agreement is applicable to any
Claims. The City does not and shall not waive any of its rights under this indemnity provision
because of its acceptance of the bonds or insurance required under the provisions of this
Agreement. Developer's obligation to indemnify City shall survive the expiration or termination
of this Agreement.
C. Developer shall maintain Commercial General Liability Insurance protecting the
City from incidents as to bodily injury liability and property damage liability that may occur as a
result of the Work and additional repairs. Developer shall provide certificate(s) of insurance and
endorsements to City before any Work commences. The insurance policy shall contain, or be
endorsed to contain, the following provisions:
(1) The City, its officers, elected officials, employees, consultants, agents and
volunteers are to be covered as additional insured's as respects to liability arising out of
activities performed by or on behalf of Developer. The coverage shall contain no special
limitations on the scope of protection afforded to the City, its officers, elected officials,
employees, consultants, agents and volunteers.
(2) The amounts of public liability and property damage coverage shall not be
less than $3,000,000 (Three Million Dollars) per occurrence for bodily injury, personal
injury and property damage.
(3) The insurance shall be maintained in full force until the work has been
completed to the satisfaction of the City Engineer.
(4) The insurance policy shall provide for 30 days notice of cancellation to the
City. The policy shall not be cancelled earlier than nor the amount of coverage be
reduced earlier than 30 days after the City receives notice from the insurer of the intent
of cancellation or reduction.
(5) Any failure to comply with the reporting provisions of the policy shall not
affect the coverage provided to the City, its officers, elected officials, employees,
consultants, agents and volunteers.
(6) Developer's insurance coverage shall be primary insurance as respects the
City, its officers, elected officials, employees, consultants, agents and volunteers. Any
insurance or self- insurance maintained by the City, its officers, elected officials,
OAK H4829- 8079 -1311 v4
employees, consultants, agents and volunteers shall be in excess of Developer's
insurance and shall not contribute to it.
(7) Any deductibles or self- insured retentions must be declared to and approved
by City. At the option of City, either: (a) the insurer shall reduce or eliminate such
deductibles or self- insured retentions as respects City, its elected officials, officers,
employees, agents, and volunteers; or (b) Developer and its contractors shall provide a
financial guarantee satisfactory to City guaranteeing payment of losses and related
investigation costs, claims, and administrative and defense expenses.
(8) Developer and Developer's insurance company agree to waive all rights of
subrogation against City, its officers, elected officials, employees, agents and volunteers
for losses paid under Developer's workers' compensation insurance policy which arise
from the work performed by Developer.
d. In the event that Developer's insurance is cancelled, Developer shall provide
replacement coverage or all work must cease as of the cancellation date until replacement
insurance coverage is provided.
e. Workers' Compensation Insurance. Developer shall provide, or cause to be
provided, Workers' Compensation insurance as required by law, and shall cause its contractors
and their subcontractors, agents and representatives to also maintain Workers' Compensation
insurance as required by law. No Work shall commence until such Workers' Compensation
insurance is obtained and in full force and effect.
f. Other insurance requirements. Developer shall:
(1) Prior to taking any actions under this Agreement, furnish City with properly
executed certificates of insurance which shall clearly evidence all insurance required in
this section and provide that such insurance shall not be canceled, allowed to expire or
be materially reduced in coverage except on thirty (30) days prior written notice to City.
(2) Provide to City certified copies of endorsements and policies if requested by
City, and properly executed certificates of insurance evidencing the insurance required
herein.
(3) Replace or require the replacement of certificates, policies and
endorsements for any insurance required herein expiring prior to completion and
acceptance of the Improvements.
(4) Maintain all insurance required herein from the time of execution of this
Agreement until the acceptance of the Improvements.
(5) Place all insurance required herein with insurers licensed to do business in
California.
3.9 Commencement of Construction and Inspection Developer and its contractor or
subcontractors shall not commence construction of the Improvements until Developer has
received written authorization from City to proceed. Written authorization shall be in the form of
signed approved plans along with permit issuance. All work performed on the Improvements
shall be done in strict compliance with the City approved plans, specifications and the contract
documents and in a good and workmanlike manner. All work performed by Developer, its
contractor or agents to construct the Improvements shall be subject to inspection by City. All
fees and costs to construct the Improvements shall be borne solely by Developer, subject to
reimbursement as provided herein. Inspection by City or its employees or agents shall not
relieve Developer of its liability for design defects or improper or inadequate workmanship.
3.10 Compliance with Applicable Laws. Developer shall insure that all work performed on the
Improvements is performed in a manner which complies with all applicable federal, state, county
and local government laws, regulations and rules, including all rules and regulations of City, as
these rules and regulations may be modified or changed from time to time.
OAK #4829- 8079 -1311 v4
3.11 Prevailing Wages. The work of the Improvements constitutes a "public work" as defined
in the California Labor Code, section 1771, et seq ( "Labor Code Regulations "). Developer
agrees and acknowledges that the construction of the Improvements is subject to the payment
of prevailing wages and agrees to comply with the requirements of the Labor Code Regulations.
Further, Developer agrees to defend, indemnify and hold City, its elected officials, officers,
employees, and agents free and harmless from any and all claims, damages, suits or actions
arising out of or incident to Developer's obligations under this section.
3.12 Contractor Licenses. All work performed on the Improvements shall be done only by
contractors licensed in the State of California and qualified to perform the type of work required
and comply with the City's Business License Ordinance.
3.13 Acceptance of Work. Upon completion of the Improvements to the satisfaction of City,
the Improvements shall be presented to the City Council for dedication and acceptance and for
authorization to file a Notice of Completion. The City Council shall accept the Improvements if it
determines that the Improvements were constructed in accordance with the approved plans,
specifications and contract documents, that the Improvements operate satisfactorily, and that all
other requirements of this agreement have been satisfied. Immediately upon, and as a condition
of, the expiration of the guarantee period set forth in Section 3.15, Developer shall assign to City
all of Developer's rights and remedies, including warranties, as set forth in the approved
contract documents, and thereafter City shall have the same recourse under said contract
documents that City would have had if City itself had engaged Developer's contractor to
construct the Improvements.
3.14 Liability for Work Prior to Formal Acceptance. Until the City Council has formally
accepted the Improvements, Developer shall be solely responsible for all damage to the work,
regardless of cause, and for all damages or injuries to any person or property at the work site,
except damage or injury due to the sole negligence of City, or its employees.
3.15 Guarantee. Developer shall guarantee all work and materials for the Improvements to be
free from all defects due to faulty materials or workmanship for a period of one (1) year after the
date of formal acceptance of the work by City. A guarantee bond in the amount of ten (10)
percent of the total cost of the Improvements as determined by the City its sole reasonable
exercised discretion, shall be posted with the City prior to its acceptance of the Improvements.
Developer shall repair or remove and replace and all such work, together with any other work
which may be displaced in so doing, that is found to be defective in workmanship or materials
within the one (1) year period, without any expense whatsoever to City. In the event Developer
fails to comply with the above- mentioned provisions within thirty (30) days after being notified in
writing (or in cases of emergency, immediately) City shall be authorized to proceed to have the
defects remedied and made good at the sole cost and expense of Developer, who is hereby
contractually bound to pay the costs and charges therefore immediately upon demand. Such
action by City will not relieve Developer of the guarantee required by this section. This section
shall not, in any way, limit the liability of Developer or any other party for any design or
construction defects in the work subsequently discovered by City.
3.16 Record Drawings. Prior to acceptance of the Improvements by the City Council,
Developer shall provide City with one electronic file and one mylar copy of record drawings with
certification by a licensed engineer in the State of California as to accuracy and completeness.
Developer shall be solely responsible and liable for ensuring the completeness and accuracy of
the record drawings.
OAK 94829- 8079 -1311 v4
3.17 Ownership of the Improvements From and after acceptance of the Improvements by
formal action of the City Council, ownership of the Improvements shall be vested exclusively in
City.
3.18 Notice. Any notices required or desired to be sent pursuant to this agreement shall be
addressed as follows:
CITY: City Manager
City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
With Copy To: City Attorney
City of Rohnert Park
1901 Harrison St.
9th Floor
Oakland, CA 94612 -3582
DEVELOPER: COBT, LLC /CBI, LLC
475 Bellevue NE Bellevue Drive, Suite 210
Bend, Oregon 97701
Attn. Mr. Curt Baney
3.19 Termination. In the event that Developer defaults in the performance of any of its
obligations under this agreement or materially breaches any of the provisions of this agreement,
City shall have the option to terminate this agreement upon 30 days written notice to Developer.
In the event of such termination, Developer shall provide City with detailed statements to track
the actual costs in constructing the Improvements to the date of termination and the actual
amount spent shall be determined by City ( "Actual Cost "). In the event that any fee credits
granted exceed the Actual Cost, Developer shall repay the City any amount owed within ten
business days of notice by the City.
3.20 Attorney's Fees. In the event, any action is commenced to enforce or interpret any term
or condition of this agreement, in addition to costs and any other relief, the prevailing party shall
be entitled to reasonable attorney's fees. Jurisdiction over the authority in any dispute shall be
maintained in Sonoma County.
3.21 Entire Agreement This agreement contains the entire agreement of the parties hereto
with respect to the matters contained herein.
3.22 Agreement Does Not Run with the Land This agreement shall not run with the
Developer's Property, but is a contractual agreement between the City and Developer.
3.23 Assignment. This agreement shall not be assigned without the written consent of the
parties hereto, and any assignment without such written consent shall be void and ineffective.
The written notice shall become effective within thirty days upon delivery to the City, provided
that the City shall not be responsible for any misdirected written notices under this section.
3.24 Time of Essence. Time is of the essence for this Agreement
OAK #4829-8079-1311 v4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
above written.
CITY:
CITY OF ROHNERT PARK,
a municipal corporation
City Manager
APPROVED AS TO FORM:
City Attorney
ATTEST:
City Clerk
DEVELOPER:
COBT, LLC/CBI, LLC
Oregon limited liability companies
Curt Baney, Manager'J
ACKNOWLEDGMENT
OAK 114829-8079-1311 v4
STATE OF CALIFORNIA
) ss.
COUNTY OF SONOMA
On before me, ,
(here insert name and title of the officer)
personally appeared , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged
to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
CITY REPRESENTATIVE
By:
Print Name:
Title:
ACKNOWLEDGMENT
OAK 114829- 8079 -1311 v4
STATE OF OREGON )
) ss.
COUNTY OF DESCHUTES }
On JULY 1, ] 1"-1 before me, Oe" 4S /tI . C- 0s,!0C'AJ
(here insert name and title of the officer)
personally appeared A • 8,ANCy , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged
to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
OAK tt4829- 8079 -1311 v4 9
BI
DEVELOPER'S PROPERTY
Draft Final Parcel map Sheet 3/6, April 201-1,
I d
I
'r
],.Cl v
,66'1
�;j {�:. >il/,y ✓i ✓� �. OFD
I I
I a
( I
I °-
I0
i
✓� �d S M -„ b0,90 .000 S
(W-Z8-la} 6'6SC
a m
Co
p I
ti
S
``LL'001-
��—
m•S6'6Lt
,00.081 ,00'o9s =a
U
V
I u
rn
w
I1
o
F
1
tn: �
0^
np N rn
N
r
Iwvl
M W l
� I
Or'
I Lo
iD I
nI
CCU
�o
N
z I
Z
wz
�a-
3 „IS,6Z.0F
R> -nnm Q
of as
z n°
� 2
T
4-
Q
J
r
I
W�
C� v�
111 ;
o �3
I
N
K
I
cD
M
N
Ln
r
In
c,
co
Oo
� 6
,4L'6EZ 3 „9' +,6Z.00 N
r4
� m
� rn
N
t`
R
V
,`dry
as
�c o II 0672 c 3 „LZ,9Z.00 N-
N Q� o I
}Q o (W- z8—ta} ,t'6,69T 3 ,LZ,9Z,00 N
n M MO
I
I
I
I
I I
I a
( I
I °-
I0
i
0
h
Co
p I
II W d
I
'7�
S
liJ V�
U
V
I u
� 2
T
4-
Q
J
r
I
W�
C� v�
111 ;
o �3
I
N
K
I
cD
M
N
Ln
r
In
c,
co
Oo
� 6
,4L'6EZ 3 „9' +,6Z.00 N
r4
� m
� rn
N
t`
R
V
,`dry
as
�c o II 0672 c 3 „LZ,9Z.00 N-
N Q� o I
}Q o (W- z8—ta} ,t'6,69T 3 ,LZ,9Z,00 N
n M MO
I
I
I
I
I I
I a
( I
I °-
I0
i
I
II W d
I
'7�
S
�c�!l
I I
�
V
I u
rn
I1
N
L
In
I
�
I
r
m
M W l
� I
Lo
�
iD I
nI
:eD�
V
MI
Co
m
0
a
�� to
I
V
I
I
I
I
I
I
I
!
I
� I
Exhibit B
Improvements that will be constructed by Developer that are eligible for PFFP improvements
are as follows:
Dowdell Avenue will be reconstructed and widened along the frontage of the property
from the widened section to the north through the intersection with Golf Course Drive
West. The roadway will be widened to the east only, preserving the current western
boundary of the roadway. The widened roadway will include one lane northbound, a left
turn lane, and a combination through and right turn lane southbound. The structural
section for Dowdell Avenue will be designed for a minimum traffic index of 8. Pavement
width shall be 35', from the westerly edge of pavement to the easterly face of curb. A 6'
sidewalk will be provided behind an 8' vegetated treatment Swale.
Improvements include construction of the easterly half of the street, including both the
street improvements and frontage improvements included in the PFFP. The project will
be eligible for PFFP credits in both categories for the length of the frontage for one side
of the street.
2. A new 12" water line will be constructed in Dowdell Avenue, from the existing 12" stub
at Golf Course Drive West north to tie into the 8 inch line on Dowdell Avenue at the
north end of the frontage. A new 18" storm drain will be installed in Dowdell Avenue
from the existing stub at the north end of the frontage south to Golf Course Drive West.
The PFFP includes four utilities lines (storm drain, water, sewer, and recycled water) in
Dowdell Drive. The project will install two of the four utilities, and will be eligible for
PFFP credits for 50% of the allowed PFFP costs the length of the frontage.
Improvements will be completed on the north side of Golf Course Drive West between
Redwood Drive and Dowdell Avenue. An additional 34' of right -of -way will be
dedicated along the frontage. Improvements shall include a 6' wide sidewalk, meandering
within the right -of -way. The remainder of the right -of -way will be landscaped. Curb,
gutter, and pavement are existing along the frontage.
Street improvements were completed by others and no PFFP sheet improvements are
being built. Median and frontage improvements being built include mobilization,
sidewalk, planter strip landscaping, and street lighting. These improvements account for
approximately 24% of the costs allowed in the PFFP for frontage and median
improvements. Improvements are being completed on only one side of the street.
4. Redwood Drive will be widened to provide a separate southbound right turn lane at Golf
Course West Drive. The turn lane will be 120' long with a 60' taper. The pavement will
be widened by 9' to acconi nodate the right turn lane. New curb and gutter will be
provided. A new 7.5' wide contiguous sidewalk will be provided along the length of the
right turn lane. Approximately 200' of existing 48" Cast -In -Place Storm Drain line will
be removed and replaced with Class V Oval Reinforced Concrete Pipe due to cover
limitations.
The right turn lane is eligible for PFFP credits. The PFFP includes improvements on all
four legs of the intersection; the right turn lane is approximately 25% of the total costs
for the intersection.
In addition to the above improvements specifically described above, improvements along
the three frontages will include street lights, fire hydrants, landscaping and drainage
facilities, to create a finished street on all three frontages.
0
A
C}
A C
X E
W �
E
u
O
N
00
-
N
O
00
to
M
(O
M
4
co
LQ
o
M
°0
Ci
r`
m
cfl
(0
O
U
EA
K}
(�
EH
ffl
U3
Qfl
M
d7
N
t0
h
h
o
In
r-
N
(D
In
ui
u
N
N
N
H}
613,
FA
EH
fA
d3
Efl
C
O
0)
O
to
co
u
O
O
O
I'
co
N
'IT
M
In
In
(O
N
00
O)
N
V
(O
O
00
d'
M
W
O
C
LO
O
u
fH
61)
b}
EA
EA
69
63
O
M
d)
M
to
V
CIA
LO
r
ON
h
m
co
W
e»
e»
c
c
Es3
c»
Io
U
a)
L
L
N
N
C
cJ-
O
O
T�
O
U
Oate--
O
.D
T -
L
o
o
N
(D
o
U)
L
L
L
I
C
C
Ol
C))
O)
L
a
O
u
w
Q)
ti
`
<4'
,�
O
O' a
C, 7
C`
M
C
0
N
N
Q ti
—
`) a)
o
co
m
o
co
m
o
o
r-
0
C)
o
rn
N d.
0
C
.-
)n
h
n
O
d"
O
co
00
00
I--
h
V
V
O�
O_
Co
O
N
£9
&:I
Lfl
Efl
Hfl
63
N
Q)
c))
N
CD
C
(0
c
C
o
C
a) o
°
U
o
M
E -
LL
>,
LL
C
D
=
m
-6
U)
W a�i
p
ca
m
o
o
a
ca
a
o
-
ns
H
v�
0
0
In
h
O
�
C
C
O
N
Q
N Q
O
U
h >
M .-
N
Qj p
> �O
o o
N
>
E
°n
N
>
Q U
a
a aNi
0 0
o
0
0
c
wn
o
Uw
a
O
N
u
jLLL
N
E
r
N
U
Z a.
(n
CO
U
� W t0 t0 h N
d- lf1 W d' al d'
h tD O N h 0
l0 O
O O w lD d N N w
L N
JUT in, if" if} V-}
o
0
N G vV
O O
@ U C
N O h0
�7 y N C
O
O O b C
Q U b, O
0 j -Q C '=F,
W Q O N >O Y
O O L u Q U
C C C C N
ro
a
a
N
0
N U-
a ra
G C �
N O N
�
N fl
m C%
Exhibit D (1 )
RECORDING REQUESTED BY )
AND WHEN RECORDED MAILTO: )
)
City of Rohnert Park )
130 Avram Avenue )
Rohnert Park„ California 94928 )
Attention: City Clerk )
(Space Above This line for Recorder's Use Only)
Exempt from recording fee per Gov, Code § 27383.
LANDSCAPE MAINTENANCE AGREEMENT
(COBT, LLC /CBI, LLC dba Oxford Smites)
THIS LANDSCAPE MAINTENANCE AGREEMENT ( "Agreement ") is made and entered into
this day of 2014, ( "Effective Date "), by and between COBT, LLC /CBI, LLC,
limited liability cc r, ati ns ( "Developer "), and the CI'T'Y OF ROHNERT PARK, a California
municipal corporation ( "City") with reference to the following facts:
RECITALS
A. Reference is made to that certain real property situated in the City of Rolmert Park,
County of Sonoma, State of California, known as the Oxford Suites site and described on Exhibit "A ",
attached hereto and incorporated by this reference as if fully set forth herein (the "Property "), The
Property is being developed as a commercial (hotel) project.
B. In connection with its development of the Property, the Developer submitted to the City a
grading permit application, which include, inter alia, landscaping plans for along the Property frontage
( "Plans "), all of which Plans have been approved by the City. The Plans provide for installation of certain
landscaping (including water quality planting) and irrigation ( "Improvements ") within the Dowdell
Avenue and Golf Course Drive West Public Right -of -Way ( "Maintenance Area ") as the Improvements
and Maintenance Area are more specifically shown on Exhibit "B" attached hereto and by this reference
made a part hereof.
C. The Developer has submitted a parcel map for the Property, which has been reviewed by
the City Engineer and is being approved concurrently with this Agreement ( "Parcel Map ").
D. The Developer recognizes that the City's approval of the Parcel Map is based on the
Developer's commitment to the long -term maintenance, repair, care and, if and when Improvements are in
poor health or cause a safety hazard, replacement of the Improvements, and that the Parcel Map would
not have been approved without the assurance that this Agreement would be executed by the Developer.
E. The City and the Developer desire to enter into an agreement pursuant to which the
Developer will maintain the Improvements within the Maintenance Area as both are depicted on Exhibit
"B".
AGREEMENT
NOW, THEREFORE, the City and the Developer (together, the "Parties ") hereby agree as
follows:
1. PURPOSE OF AGREEMENT. The purpose of this Agreement is to assure the
maintenance, periodic inspection, repair, safe operation and, if and when necessary, replacement of the
Improvements by the Developer at its expense in accordance with the standards, including the
Maintenance Standards (defined in Section 4 below), set forth herein.
2. IMPROVEMENTS AS A BENEFIT. The Developer agrees that the Improvements will
materially benefit the Property and that Developer's maintenance, repair, safe operation and, if and when
necessary, replacement thereof in accordance with this Agreement is necessary for approval of the
Developer's Parcel Map.
3. DEVELOPER'S RESPONSIBILITIES. Developer, at its sole expense, shall maintain,
safely operate, periodically inspect, repair and, if and when necessary, replace the Improvements
identified in Exhibit "B ", as well as perform all necessary service on maintenance equipment, in order to
ensure the attractive and healthy appearance of the landscaping, the attractive appearance, condition and
safety of any and all structures, and the efficient operation of all of the Improvements, including paying
the electrical expense of operating the irrigation controller, said electrical expense to be paid by the
Developer upon the direct receipt of invoices for electrical service from Pacific Gas and Electric, all in
accordance with the Maintenance Standards described in Section 4 below, and industry and City
standards applicable to similar improvements.
4. MAINTENANCE STANDARDS, The Developer and its maintenance staff, contractors
and subcontractors shall comply with the following standards (collectively, "Maintenance Standards ") in
connection with the required maintenance of the Improvements:
a. The Improvements shall be maintained in compliance with the Plans and Parcel
Map, in good condition, and in accordance with the custom and practice generally applicable to public
rights-of-way within the City of Roluiert Park..
b. Landscape maintenance shall include, but not be limited to: watering/irrigation;
fertilization; periodic trimming, mowing, and /or edging of grass and lawn areas; paining of trees, shrubs,
and other vegetation; trimming and shaping of trees and shrubs to maintain a healthy, natural appearance,
safe road conditions and visibility, and irrigation coverage; removal and replacement, as needed, of all
plant materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and
staking for support of trees.
C. Clean -up maintenance shall include, but not be limited to: maintenance of all
sidewalks, paths and other paved areas excluding roadway and curbs in clean and weed -free condition;
maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or unsightly;
removal of all trash, litter and other debris from improvements and landscaping prior to mowing;
clearance and cleaning of all areas maintained prior to the end of the day on which the maintenance
operations are performed to ensure that all cuttings, weeds, leaves and other debris are properly disposed
of by maintenance workers.
d. All maintenance work shall be performed in a good and workman like manner
and shall conform to all applicable federal and state Occupation Safety and Health Act standards and
regulations for the performance of maintenance.
e. Any and all chemicals, unhealthful substances, and pesticides used in and during
maintenance shalt be applied in strict accordance with all governn7ental requirements. Reasonable
precautionary measures shall be employed recognizing that all areas are open to public access.
5. CITY'S RIGHT TO PERFORM MAINTENANCE. In the event that the Developer fails
to repair, periodically inspect, maintain, care for and, if and when necessary, replace the Improvements on
and about the Property in the manner set forth herein, the City may enter upon the Property and take
whatever steps it deems reasonably necessary to maintain, repair, periodically inspect, care for, and
replace such Improvements, or to contract for the correction of such deficiencies, after written notice to
the Developer. By executing this Agreement, Developer knowingly and willfully provides consent to the
City to enter on the Property and perform such maintenance work as it deems necessary to maintain the
standards of this agreement. It is expressly understood that the City is under no obligation to maintain or
repair the Improvements, and in no event shall this Agreement be construed to impose such an obligation
on the City.
a. NOTICE TO DEVELOPER. Prior to taking any such corrective action, the City
agrees to notify the Developer in writing if the condition of said Improvements does not conform to the
standards and requirements set forth herein, including without limitation the Maintenance Standards, and
to specify the deficiencies and the actions required to be taken by the Developer to cure the deficiencies.
Upon notification of any deficiency, the Developer shall have thirty (30) days from the date of the notice
within which to correct, remedy, contest the notice of deficiency or cure the deficiency. If the written
notification states that the problem is urgent and relates to the public health and safety, then the Developer
shall have twenty -four (24) hours to rectify the problem.
b. Lien for Costs of Required Maintenance. In the event that Developer fails to
correct, remedy, or cure or has not commenced correcting, remedying or curing such deficiency after
notification and after expiration of any applicable cure period, then the City may enter upon the Property
and maintain, repair, care for and, if and when necessary, replace such Improvements at the Developer's
expense. The Developer agrees to reimburse the City within 60 days of the date of a notice identifying all
charges and costs incurred by the City for such maintenance, repair and replacement work. Until so paid,
the City shall have a lien on the Site for the amount of such charges or costs, which lien shall be perfected
by the recordation of a "Notice of Claim of Lien" against the Property. This lien shall affect all parcels
jointly if portions of the Property have been sold. Any lien in favor of the City created or claimed
hereunder is expressly made subject and subordinate to any mortgage or deed of trust made in good faith
and for value, recorded as of the date of the recordation of the Notice of Claim of Lien, and no such lien
shall in any way defeat, invalidate, or impair the obligation or priority of any such mortgage or deed of
trust, unless the mortgagee or beneficiary thereunder expressly subordinates its interest, of record, to such
lien. No lien in favor of the City created or claimed hereunder shall in any way defeat, invalidate, or
impair the obligation or priority of any lease, sublease or easement unless such instrument is expressly
subordinated to such lien.
C. Legal Action. The City may bring legal action to collect the sums due as the
result of expending public monies to maintain, repair and, if and when necessary, replace any
Improvements which are the responsibility of the Developer as provided herein. The Developer agrees
that if the Cityis the prevailing party in legal action to enforce its rights under this Section 5, the
Developer shall pay the City all costs incurred by it, including attorneys' fees and court costs, together
with interest from the date the City provided notice under Section 5.a, at the rate of seven percent (7 %)
per annum.
d. Additional Remedies, The Developer acknowledges and agrees that the City
may also pursue any and all other remedies available in law or equity in the event of a breach of the
Developer's obligations and agreements set forth herein.
e. Intention of City, Nothing in this Section 6 shall be construed, either expressly
or by implication, as indicating an intention of the City to exercise dominion or control over the
Improvements,
6. NO IMPAIRMENT OF LIEN. No violation or breach of the agreements, conditions,
restrictions, provisions or limitations contained in this Agreement shall defeat or render invalid or in any
way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument;
provided, however, that any successor of Developer to the Site or any portion thereof shall be bound by
such agreements, conditions, restrictions, limitations and provisions, whether such successor's title was
acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
7. ENCROACHMENT PERMIT, RIGHT OF ENTRY. The Developer and the City
acknowledge that, to the extent that the Improvements are located within the City rights -of -way, the
Developer shall obtain a single on -going revocable encroachient permit from the City in order for the
Developer to perform its obligations under this Agreement. Such an encroachment permit shall set forth
the terms and provisions upon which the Developer has a right to enter onto such rights -of -way in order to
perform maintenance, inspection, repair and, if and when necessary, replacement services (collectively,
"Maintenance Services "). The encroachment permit shall be issued on the terms and conditions of this
Agreement.
The Developer shall obtain and deliver to the City, at no cost to the City, certificates of commercial
general liability insurance which indicate that the City, its elective and appointive boards, commissions,
officers, agents and employees are covered as additional insureds under all insurance policies maintained
for performance of the Maintenance Services and other Activities by (i) the Developer or (ii) any
contractor or subcontractor directly or indirectly employed by the Developer to perform any Maintenance
Services or other Activities. Each of these policies shall also provide that no cancellation, major change
in coverage, or expiration may be affected by the insurance company or the insured during the time of
performance of the Maintenance Services and other Activities, without first giving to the City thirty (30)
days' written notice prior to the effective date of such cancellation or change in coverage. The Developer
shall not permit any contractor or subcontractor to commence or continue performing Maintenance
Services or other Activities until the certificates or any substitute certificates have been approved by the
City's Risk Manager.
8. PERMITS AND APPROVALS, To the extent that performance of the Maintenance
Services or other Activities requires permits or governmental approvals, the Developer shall, at its sole
cost and expense, obtain such permits and approvals. The City shall issue encroachment permits, from
time to time, on the terms set forth in Section 7 above.
9. TERM. This Agreement shall commence immediately upon the Effective Date and shall
continue in perpetuity until and unless terminated, with or without cause, by the City upon ten (10) days
written notice to Developer.
10, INDEMNIFICATION. Developer shall, to the fullest extent permitted by law,
indemnify, defend and hold harmless the City and its Council, boards, offices, commissions, officials,
agents and employees, from and against any liability, (including, but not limited to, liability for claims,
suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, damages,
losses, expenses or costs of any kind, including reasonable attorneys' fees, that may be asserted by any
person or entity, including Developer, whether actual, alleged or threatened, interest, defense costs, and
expert witness fees), where the same relates to, or arises out of, any work performed or services provided
under this Agreement by the Developer, or the Developer's contractors, subcontractors, agents or
employees, including, but not limited to, the performance of the Maintenance Services or other Activities,
excepting only that resulting from the negligence or intentional misconduct of the City, its employees,
officials, or agents. Developer's duty to defend and hold harmless, as set forth herein, shall include the
duty to defend as set forth in California Civil Code Section 2778. This indemnification obligation shall
survive termination of this Agreement and is not limited in any way by any linutation on the amount or
type of damages or compensation payable to or for the Developer or its agents under insurance policies or
workers' compensation acts, disability benefits acts or other employees' benefits acts. If any judgment or
claim for which Developer is responsible pursuant to this Section 10 shall be entered against the City, its
officials, agents, or employees, Developer shall pay all cost and expenses in connection therewith.
11. DEFAULT. The failure to maintain the Improvements will constitute an event of default.
Upon such event of default, the City shall provide written notice to the Developer. Upon receipt of the
written notice, the Developer shall have thirty (30) days to remedy such event of default (or such longer
period of time as may reasonably be required, provided that the Developer shall conunence to remedy
such default within thirty (30) days period and thereafter diligently prosecute such remedy to completion).
If the Developer fails to remedy the event of default within the prescribed time period, the City shall have
the right to do all work necessary to remedy the event of default and charge the Developer actual costs
incurred by the City for such work.
12. ASSIGNMENT BY CITY. The City shall have the right at its option to assign its rights
and obligations under this Agreement to a municipal services district or other public agency without
consent of the Developer.
13. AGREEMENT ATTACHES TO LAND AND BINDS DEVELOPER'S SUCCESSORS
AND ASSIGNS. This Agreement attaches to and tuns with the Property in perpetuity, and shall be
recorded against the Property. This Agreement binds the assigns and successors -in- interest of the
Developer. Upon Developer's sale or other transfer of the Property, Developer's obligations hereunder
shall cease, except for those obligations that accrued prior to the date of transfer. The City and its
successors and assigns, in the event of any breach of this Agreement, shall have the right to exercise all of
the rights and remedies, and to maintain any actions at law or suits in equity or other proper proceedings
against the Developer or its permitted successors and assigns to enforce the curing of such breach.
14. ASSIGNMENT BY DEVELOPER. The Developer may assign its obligations under this
Agreement only with the prior written approval of the City which shall not be unreasonably withheld. hi
connection with any such assignment, the Developer and its assignee shall execute and deliver to the City
a written assignment and assumption agreement in a form acceptable to the City Attorney. No written
assignment or City consent shall be necessary for assigmnents that result from the sale or transfer of
Property as described in Section 13 above.
15. NOTICES. Any notices relating to this Agreement shall be given in writing and shall be
deemed sufficiently given and served for all purposes when delivered personally or by generally
recognized overnight courier service, or three (3) days after deposit in the United States mail, certified or
registered, return receipt requested, with postage prepaid, addressed as follows:
To the Developer: COBT, LLC /CBI, LLC
475 Bellevue NE Bellevue Drive, Suite 210
Bend, OR 97701
Attn: Mr. Curt Baney
With a copy to: Ball Janik, LLP
15 SW Colorado Avenue, St. K
Bend, OR 97702
Attn: Ms. Laura Cooper
To the City: City of Rol-inert Park
130 A.vranl Avenue
Rohnert Park, California 94928
Attn: City Manager
With a copy to: Michelle Marchetta Kenyon
Rohnert Park City Attorney
1901 Harrison Street
Oakland, California 94612
16. MISCELLANEOUS.
a. Entire Agreement, Amendments. This Agreement contains the entire
understanding and agreement of the parties. This Agreement may be altered, amended or modified only
by an instrument in writing, executed by the Parties to this Agreement.
b. Paragraph Headings. Paragraph headings as used herein are for convenience
only and shall not be deemed to be a part of such paragraphs and shall not be construed to change the
meaning hereof.
C. Governing Law, This Agreement shall be construed and governed in accordance
with the laws of the State of California. Venue shall be the County of Sonoma.
d. Counterparts. This Agreement may be executed in any number of counterparts
which together shall constitute the contract of the Parties.
e. Exhibits. Any and all exhibits and schedules attached or to be attached hereto are
hereby incorporated and made a part of the Agreement by reference.
f. Severability. If any term, provision, covenant or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions shall remain in full force and effect.
g. Authority. Each person executing this Agreement on behalf of a party represents
and warrants that such person is duly and validly authorized to do so on behalf of the entity it purports to
bind and if such party is a partnership, corporation or trustee, that such partnership, corporation or trustee
has full right and authority to enter into this Agreement and perform all of its obligations hereunder.
h. No Agency Relationship. Neither the Developer nor any of the Developer's
agents, contractors or subcontractors are or shall be considered to be agents of City in connection with the
performance of any of the Developer's obligations under this Agreement. Nor shall City and Developer,
be deemed to have become a partner of each other in the conduct of their respective business or otherwise
a joint venture.
i. Attorneys' Fees and Costs. Either party may bring a lawsuit to enforce or require
performance of the terms of this Agreement, and the prevailing party in such suit or proceeding shall be
entitled to recover from the other party's reasonable costs and expenses, including attorneys' fees.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first stated
above.
COBT, LLC /CBI, LLC ,
Limited Liability Coipo �rionsBy: Curtis A. Baney
Name:
Title: Managing Member
[Signature must be notar'i7e(1]
ACKNOWLEDGMENT
STATE OF OREGON
) ss.
COUNTY OF DESCHUfES
On T"'t 1, `2. H before me, 7-kOM4 S A . (-ni,,dP0 dJ
A (here insert name and title Qf the officer)
personally appeared C-0 9.1-t s A who proved to me on the basis of satisfactory
evidence to be the person(s) whose names) is /are subscribed to the within instrument and acknowledged
to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
(Seal)
CITY
CITY OF ROIINERT PARK
A municipal corporation
Darrin Jenkins, City Manager
[Signature must he notarized]
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) ss.
COUNTY OF SONOMA )
On before me,
(here insert narne and title of the offtcei)
personally appeared , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged
to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument,
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
APPROVED AS TO FORM:
N
Michelle Marchetta Kenyon, City Attorney
ATTEST:
Jo Anne Buergler, City Clerk
U �
C7 =?
LEGAL DESCRIPTION OF SITE
Draft Final Parcel Map Sheet 3/6, April 2014
! �d La) 56'65£ M- „17 0,90.OD S °
,00'091 �LL'DOl =l- 0�0'09S =2i
„9£,81.0! =p I T uw
w
�J
r0
u
;U
I\ 0
W�
O <a
t
O)
0 rl rn
QO lD
I —
i .�} N
z
U
z
3,.0.6Z. ON
F- a
9L'9ti Ll
66'6£ w
o
I
o ro
'
I
a
)o
D
LD
”'
m
O
II
o)
co
1
' 10
0
IN
I �•' a
ON
F-
F-
K
10
Qs
LD
iv
(I
�I
n N
))
U
u
ro
0a
ro
Lr)I
I.
I;
I,
WI
0
NI'
iy£
I
I
I
i.i
N
.m
r �^
W�
=
—
a (NJ- Zb -ly) ,U6'65£ 3 „LZ,9Z.00 N }
N
N
y � U
a�
ago
(D V
�dvo
�2NJ
6—
LU
N �
I
D:
N �y-
ui Qt —
s
to
u>
0, OD) i
z
DD
0
z
11 1
0
,OZ ,09
IMPROVEMENTS AND MAINTENANCE AREA
._.. E T -----
NOR
Yf LLn
yy 0
s�o
IRK
1 �
1 I III k 1 —1 i I II I �n
-. 3 � 4
`j ; I
I
pfijs
/ 6
O
t t5wd lip
IJ'�•
y
I L
I
I I ,
I
I I
I I .
I
I I
�w
1 u
Ia
o
W'
I�
I�
I
i
I
i
I
i
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL To:
City of Rohnert Park
130 Avram Avenue
Rohnert Park„ California 94928
Attention: City Clerk
Exhibit D (2 )
(Space Above This One for Recorder's Use Only)
Exempt from recording fee per Gov, Code §,27383.
LANDSCAPE MAINTENANCE AGREEMENT
(McDonald's Corporation)
THIS LANDSCAPE MAINTENANCE AGREEMENT ( "Agreement ") is made and entered into
this — day of , 20 ( "Effective Date "), by and between McDonald's Corporation, a
Delaware corporation ( "Developer" ), and the CITY OF ROHNERT PARK, a California municipal
corporation ( "City ") with reference to the following facts:
RECITALS
A. Reference is made to that certain real property situated in the City of Rohnert Park,
County of Sonoma, State of California, known as the McDonald's siteand described on Exhibit "A ",
attached hereto and incorporated by this reference as if fully set forth herein (the "Property "). The
Property is being developed as a commercial project.
In
B. In connection with its development of the Property, the Developer submitted to the City a
grading permit application, which include, inter alia, landscaping plans for along the Property frontage
( "Plans "), all of which Plans have been approved by the City. The Plans provide for installation of certain
landscaping (including water quality planting) and irrigation ( "Improvements ") within the Dowdell
Avenue and Golf Course Drive West Public Right -of -Way ( "Maintenance Area ") as the Improvements
and Maintenance Area are more specifically shown on Fxhibit "B" attached hereto and by this reference
made a part hereof.
C. The Developer has submitted a parcel map for the Property, which has been reviewed by
the City Engineer and is being approved concurrently with this Agreement ( "Parcel Map ").
D. The Developer recognizes that the City's approval of the Parcel Map is based on the
Developer's commitment to the long -term maintenance, repair, care and, if and when Improvements are in
poor health or cause a safety hazard, replacement of the .improvements, and that the Parcel Map would
not have been approved without the assurance that this Agreement would be executed by the Developer.
E. The City and the Developer desire to enter into an agreement pursuant to which the
Developer will maintain the Improvements within the Maintenance Area as both are depicted on Exhibit
"B",
OAK 84844- 3506 -5625 v3
AGREEMENT
NOW, THEREFORE, the City and the Developer (together, the "Parties ") hereby agree as
follows:
1. PURPOSE OF AGREEMENT. The purpose of this Agreement is to assure the
maintenance, periodic inspection, repair, safe operation and, if and when necessary, replacement of the
Improvements by the Developer at its expense in accordance with the standards, including the
Maintenance Standards (defined in Section 4 below), set forth herein.
2. IMPROVEMENTS_ AS _A BENEFIT. The Developer agrees that the Improvements will
materially benefit the Property and that Developer's maintenance, repair, safe operation and, if and when
necessary, replacement thereof in accordance with this Agreement is necessary for approval of the
Developer's Parcel Map.
3. DEVELOPER'S RESPONSIBILITIES. Developer, at its sole expense, shall maintain,
safely operate, periodically inspect, repair and, if and when necessary, replace the Improvements
identified in Exhibit "B as well as perform all necessary service on maintenance equipment, in order to
ensure the attractive and healthy appearance of the landscaping, the attractive appearance, condition and
safety of any and all structures, and the efficient operation of all of the Improvements, including paying
the electrical expense of operating the irrigation controller, said electrical expense to be paid by the
Developer upon the direct receipt of invoices for electrical service from Pacific Gas and Electric, all in
accordance with the Maintenance Standards described in Section 4 below, and industry and City
standards applicable to similar improvements.
4. MAINTENANCE STANDARDS. The Developer and its maintenance staff, contractors
and subcontractors shall comply with the following standards (collectively, "Maintenance Standards ") in
connection with the required maintenance of the Improvements:
a. The Improvements shall be maintained in compliance with the Plans and Parcel
Map, in good condition, and in accordance with the custom and practice generally applicable to public
rights -of way within the City of Rohnert Park..
b. Landscape maintenance shall include, but not be limited to: watering /irrigation;
fertilization; periodic trimming, mowing, and /or edging of grass and lawn areas; pruning of trees, shrubs,
and other vegetation; trimming and shaping of trees and shrubs to maintain a healthy, natural appearance,
safe road conditions and visibility, and irrigation coverage; removal and replacement, as needed, of all
plant materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and
staking for support of trees,
c. Clean -up maintenance shall include, but not be limited to: maintenance of all
sidewalks, paths and other paved areas excluding roadway and curbs in clean and weed -tree condition;
maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or unsightty;
removal of all trash, litter and other debris from improvements and landscaping prior to mowing;
clearance and cleaning of all areas maintained prior to the end of the day on which the maintenance
operations are performed to ensure that all cuttings, weeds, leaves and other debris are properly disposed
of by maintenance workers.
d. All maintenance work shall be performed in a good and workman like manner
acid shall conform to all applicable federal and state Occupation Safety and Health Act standards and
regulations for the performance of maintenance.
OAK V4844- 3506 -5625 v3
e. Any and all chemicals, unhealthful substances, and pesticides used in and during
maintenance shall be applied in strict accordance with all governmental requirements. Reasonable
precautionary measures shall be employed recognizing that all areas are open to public access.
5. CITY'S RIGHT TO PERFORM MAINTENANCE. In the event that the Developer fails
to repair, periodically inspect, maintain, care for and, if and when necessary, replace the Improvements on
and about the Property in the manner set forth herein, the City may enter upon the Property and take
whatever steps it deems reasonably necessary to maintain, repair, periodically inspect, care for, and
replace such Improvements, or- to contract for the correction of such deficiencies, after written notice to
the Developer. By executing this Agreement, Developer knowingly and willfully provides consent to the
City to enter on the Property and perform such maintenance work as it deems necessary to maintain the
standards of this agreement. It is expressly understood that the City is under no obligation to maintain or
repair the Improvements, and in no event shall this Agreement be construed to impose such an obligation
on the City.
a. NOTICE TO DEVELOPER. Prior to taking any such corrective action, the City
agrees to notify the Developer in writing if the condition of said Improvements does not conform to the
standards and requirements set forth herein, including without limitation the Maintenance Standards, and
to specify the deficiencies and the actions required to be taken by the Developer to cure the deficiencies.
Upon notification of any deficiency, the Developer shall have thirty (30) days fi-om the date of the notice
within which to correct, remedy, contest the notice of deficiency or cure the deficiency. If the written
notification states that the problem is urgent and relates to the public, health and safety, then the Developer
shall have twenty -four (24) hours to rectify the problem.
b. Lien for Costs of Required Maintenance, In the event that Developer fails to
correct, remedy, or cure or has not commenced correcting, remedying or curing such deficiency after
notification and aicr expiration of any applicable cure period, then the City may enter upon the Property
and maintain, repair, care for and, if and when necessary, replace such Improvements at the Developer's
expense. The Developer agrees to reimburse the City within 60 days of the date of a notice identifying all
charges and costs incurred by the City for such maintenance, repair and replacement work. Until so paid,
the City shall have a lien on the Site for the amount of such charges or costs, which lien shall be perfected
by the recordation of a "Notice of Claim of Lien" against the Property. This lien shall affect all parcels
jointly if portions of the Property have been sold, Any lien in favor of the City created or claimed
hereunder is expressly made subject and subordinate. to any mortgage or deed of trust made in good faith
and for value, recorded as of the date of the recordation of the Notice of Claim of Lien, and no such lien
shall in any way defeat, invalidate, or impair the obligation or priority of any such mortgage or deed of
trust, unless the mortgagee or beneficiary thereunder expressly subordinates its interest, of record, to such
lien. No lien in favor of the City created or claimed hereunder shall in any way defeat, invalidate, or
impair the obligation or priority of any lease, sublease or easement unless such instrument is expressly
subordinated to such lien.
C. Legal Action. The City may bring legal action to collect the sums due as the
result of expending public monies to maintain, repair and, if and when necessary, replace any
Improvements which are the responsibility of the Developer as provided herein.. The Developer agrees
that if the Cityis the prevailing party in legal action to enforce its rights under this Section 5, the
Developer shall pay the City all costs incurred by it, including attorneys' fees and court costs, together
with interest from the date the City provided notice under Section 5.a, at the rate of seven percent (7 %)
per annum.
OAK 114844- 3506 -5625 v3
d. Additional Remedies. The Developer acknowledges and agrees that the City
may also pursue any and all other remedies available in law or equity in the event of a breach of the
Developer's obligations and agreements set forth herein.
C. Intention of City. Nothing in this Section 6 shall be construed, either expressly
or by implication, as indicating an intention of the City to exercise dominion or control over the
Improvements.
6. NO_IMPAI IVIENT OF LIEN. No violation or breach of the agreements, conditions,
restrictions, provisions or limitations contained in this Agreement shall defeat or render invalid or in any
way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument;
provided, however, that any successor of Developer to the Site or any portion thereof shall be bound by
such agreements, conditions, restrictions, limitations and provisions, whether such successor's title was
acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise,
7. ENCROACHMENT PERMIT: RIGH`f OF ENTRY. The Developer and the City
acknowledge that, to the extent that the .Improvements are located within the City rights-of-way, the
Developer shall obtain a single on -going revocable encroachment permit from the City in order for the
Developer to perform its obligations under this Agreement. Such an encroachment permit shall set forth
the terms and provisions upon which the Developer has a right to enter onto such rights-of-way in order to
perform maintenance, inspection, repair and, if and when necessary, replacement services (collectively,
"Maintenance Services "), The encroachment permit shall be issued on the terms and conditions of this
Agreement.
The Developer shall obtain and deliver to the City, at no cost to the City, certificates of commercial
general liability insurance which indicate that the City,, its elective and appointive boards, commissions,
officers, agents and employees are covered as additional insureds under all insurance policies maintained
for performance of the Maintenance Services and other Activities by (i) the Developer or (ii) any
contractor or subcontractor directly or indirectly employed by the Developer to perform any Maintenance
Services or other Activities. Each of these policies shall also provide that no cancellation, major change
in coverage, or expiration may be affected by the insurance company or the insured during the time of
performance of the Maintenance. Services and other Activities, without first giving to the City thirty (30)
days' written notice prior to the effective date of such cancellation or change in coverage. The Developer
shall not permit any contractor or subcontractor to commence or .continue performing Maintenance
Services or other Activities until the certificates or any substitute certificates have been approved by the
City's Risk Manager.
8. PERMITS AN17 APPROVALS. To the extent that performance of the Maintenance
Services or other Activities requires permits or governmental approvals, the Developer shall, at its sole
cost and expense, obtain such permits and approvals. The City shall issue encroachment permits, from
time to time, on the terms set forth in Section 7 above.
9. TERM. This Agreement shall commence immediately upon the Effective Date and shall
continue in perpetuity until and unless terminated, with or without cause, by the City upon ten (10) days
written notice to Developer.
10, INDEMNIFICATION. Developer shall, to the fullest extent permitted by law,
indemnify, defend and hold harmless the City and its Council, boards, offices, commissions, officials,
agents and employees, from and against any liability, (including, but not limited to, liability for claims,
suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedu)gs, damages,
losses, expenses or costs of any kind, including reasonable attorneys' fees, that may be asserted by any
OAK it4844 -3506 -5625 v3
person or entity, including Developer, whether actual, alleged or threatened, interest, defense costs, and
export witness fees), where the same relates to, or arises out of, any work performed or services provided
under this Agreement by the Developer, or the Developer's contractors, subcontractors, agents or
employees, including, but not limited to, the performance of the Maintenance Services or other Activities,
excepting only that resulting from the negligence or intentional misconduct of the City, its employees,
officials, or agents, .Developer's duty to defend and hold harmless, as set forth herein, shall include the
duty to defend as set forth in California Civil Code Section 2778. This indemnification obligation shall
survive termination of this Agreement and is not limited in any way by any limitation on the amount or
type of damages or compensation payable to or for the Developer or its agents under insurance policies or
workers' compensation acts, disability benefits acts or other employees' benefits acts, If any judgment or
claim for which Developer is responsible pursuant to this Section 10 shall be entered against the City, its
officials, agents, or employees, , Developer shall pay all cost and expenses in connection therewith.
H. DEFAULT. The failure to maintain the Improvements will constitute an event of default,
Upon such event of default, the City shall provide written notice to the Developer. Upon receipt of the
written notice, the Developer shall have thirty (30) days to remedy such event of default (or such longer
period of time as may reasonably be required, provided that the Developer shall commence to remedy
such default within thirty (30) days period and thereafter diligently prosecute such remedy to completion).
If the Developer fails to remedy the event of default within the prescribed time period, the City shall have
the right to do all work necessary to remedy the event of default and charge the Developer actual costs
incurred by the City for such work.
12. ASSIGNMENT BY CITY. The City shall have the right at its option to assign its rights
and obligations under this Agreement to a municipal services district or other public agency without
consent of the Developer.
13. AGREEMENT ATTACHES TO LAND AND BINDS DEVELOPER'S SUCCESSORS
AND ASSIGNS This Agreement attaches to and runs with the Property .in perpetuity, and shall be
recorded against the Property. This Agreement binds the assigns and successors -in- interest of the
Developer. Upon Developer's sale or other transfer of the Property,. Developer's obligations hereunder
shall cease, except for those obligations that accrued prior to the date of transfer. The City and its
successors and assigns, in the event of any breach of this Agreement, shall have the right to exercise all of
the rights and remedies, and to maintain any actions at law or suits in equity or other proper proceedings
against the Developer or its permitted successors and assigns to enforce the curing of such breach.
14. ASSIGNMENT BY DEVELOPER. The Developer may assign its obligations under this
Agreement only with the prior written approval of the City which shall not be unreasonably withheld. In
connection with any such assignment, the Developer and its assignee shall execute and deliver to the City
a written assignment and assumption agreement in a form acceptable to the City Attorney. No written
assignment or City consent shall be necessary for assignments that result from the sale or transfer of
Property as described in Section '13 above,
15. NOTICES. Any notices relating to this Agreement shall be given in writing and shall be
deemed sufficiently given and served for all purposes when delivered personally or by generally
recognized overnight courier service, or three (3) days after deposit in the United States mail, certified or
registered, return receipt requested, with postage prepaid, addressed as follows:
To the Developer: McDonald's Corporation
One McDonald's Plaza
Oak Brook, II, 60523
OAK 114844 -3506 -5625 0
Attn: Director, Real Estate #091
LC: 004 -3309
With a copy to: McDonald's Corporation
2999 Oak Road, Suite 900
Walnut Creek, CA 94597
To the City: City of Rohnert Park
130 Avram Avenue
Rohnert Park, California 94928
Attn: City Manager
With a copy to: Michelle Marchetta Kenyon
Rohnert Park City Attorney
1901 Harrison Street
Oakland, California 94612
16. MISCELLANEOUS.
a. Entire Agreement, Amendments. This Agreement contains the entire
understanding and agreement of the parties. This Agreement may be altered, amended or modified only
by an instrument in writing, executed by the Parties to this Agreement,
b. Paragraph Headiggs. Paragraph headings as used herein are for convenience
only and shall not be deemed to be a part of such paragraphs and shall not be construed to change the
meaning hereof.
C. Governing Law, This Agreement shall be construed and governed in accordance
with the laws of the State of California. Venue shall be the County of Sonoma.
d. Counterparts. This Agreement may be executed in any number of counterparts
which together shall constitute the contract of the Parties.
e. Exhibits. Any and all exhibits and schedules attached or to be attached hereto are
hereby incorporated and made a part of the Agreement by reference.
f. Severability. If airy term, provision, covenant or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions shall remain in full force and effect.
g. Authority. Each person executing this Agreement qn behalf of a party represents
and warrants that such person is duly and validly authorized to do so on behalf of the entity it purports to
bind and if such party is a partnership, corporation or trustee, that such partnership, corporation or trustee
has full right and authority to enter into this Agreement and perform all of its obligations hereunder.
It. No _llgeney. Relationship. Neither the Developer nor any or the Developer's
agents, contractors or subcontractors are or shall be considered to be agents of City in connection with the
performance of any of the Developer's obligations under this Agreement. Nor shall City and Developer,
be deemed to have become a partner of each other in the conduct of their respective business or otherwise
ajoint venture.
s
OAK 84844 -3506 -5625 v3
i. Attorneys' Fees and Costs. Either party may bring a lawsuit to enforce or require
performance of the terms of this Agreement, and the prevailing party in such suit or proceeding shall be
entitled to recover from the other party's reasonable costs and expenses, including attorneys' fees.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first stated
above.
DEVELOPER
McDonald' or orati n a Delaware corporation
Name: /" °`
I Title: �r i e, -r *ia�_�°.�ts.n��
I
[Signature rmist be notarized]
CITY
CITY OF ROHNERT PARK
A municipal corporation
Darrin Jenkins, City Manager
[,4ignature must be notarized]
i
APPROVED AS TO FORM:
Michelle Marchetti) Kenyon, City Attorney
ATT:GST:
Jo Anne Buergler, City Clerk
i
OAK 114844 - 35065625 v3
MGDonald's
(ACKNOWLEDGMENT)
STATE OF ILLINOIS
SS:
COUNTY OF DuPAGE
I, Karen M. Billman, a Notary Public in and for the county and state aforesaid, DO
HEREBY CERTIFY that Jennifer Cohn, Senior Counsel, of McDonald's Corporation, a Delaware
corporation, who is personally known to me to be the same person whose names is subscribed
to the foregoing instrument as such Christine M. Dekker appeared before me this day in person
and acknowledged that she signed, sealed and delivered the said instrument as her free and
voluntary act as such Senior Counsel, for the uses and purposes therein set forth,
Given under my hand and notarial seal, this day of July 3, 2014.
'thYN'V'V'4+`uWFW...r vrfa.+.. -.. •d.i `i1 'V4V�
aF�icIAi_ SEAL
vKaren M. Billman, Notary Public My commission expires: KAREDl M BILL VIAN
j�o� X30 f NOTARY PUBLIC - STATE Of ILLINOIS
MY COMVISSION EXPIRES:05%23f15
Exhibit "A:'
Legal Description of Site
[to he inserted]
OAK #4844 -3506 -5625 A
2—M
A/0. 2
�
�
'n
88'30'15^ E
�|
w
PH
MIS
APN045-055'O2O
4UQ.4A'
/R1—R2—M\
I[1E\
00
_
NAIL & BRASS D|SK~'
STAMPED RC[ 31491
LOST ]N CONSTRUCTION
Exhibit "B"
Improvements and Maintenance Area
[to be inserted]
OAK 444844-3506-5625 v3
LANDS pl:
HOME DEPOT USA INC. /
DIJ 7391 -912G2 //
}�.,
f
I