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2005/09/13 City Council Resolution (16)RESOLUTION NO. 2005-289 A RESOLUTION OF THE CITY OF ROHNERT PARK CALIFORNIA, APPROVING THE PARKING LOT IMPROVEMENT AGREEMENT BY AND BETWEEN THE CITY, THE COMMUNITY DEVELOPMENT COMMISSION AND BURBANK HOUSING DEVELOPMENT CORPORATION. WHEREAS, on June 7, 2005, the, Community Development Commission of the City of Rohnert Park ( "CDCRP ") adopted Resolution No. 2005 -04 approving the Affordable Housing and Loan Agreement between the CDCRP and Burbank housing Development Corporation ( "BHDC ") for the development of 56 residential units with accessory ground floor commercial tenant spaces, ancillary recreational open space and parking uses (the "Project "). WHEREAS, on September 13, 2005, the CDCRP approved Resolution NO.2005 -13 revising the Affordable Housing and Loan Agreement; and . WHEREAS, the City wishes to enter into a Parking Lot improvement Agreement (the "Agreement ") with the CDCRP and BHDC which allows for the disposition of the existing Public Safety Parking Lot ("Burbank Lot ") to BHDC in order to assist the Project; and WHEREAS, in exchange for the disposition of the Burbank Lot, BHDC agrees to provide improvements to the adjacent City owned parcel ("City Lot ") to off -set the loss of Public Safety Parking; and NOW THEREFORE BE IT RESOLVED, that the City Council of the City of Rohnert Park hereby approves the Parking Lot Improvement Agreement By and Between the City, the Community Development Commission, and Burbank Housing Development Corporation; and BE IT FURTHER RESOLVED, that the City Council of the City of Rohnert Park hereby authorizes the City Manager to execute the Agreement, negotiate future changes to the Agreement, and execute any future Amendments necessitated by those changes. DULY AND REGULARLY ADOPTED by the City Council of the City of Rohnert Park this 13'h day of September, 2005. ATTEST: CITY OF ROHNERT PARK May ?r BREEZE: Ug FLARES: AYE SMITH: !M VIDAK- MARTINEZ: Mg MACKENZIE: Mg AYES: (5) NOES: (0) ABSENT: (0) ABSTAIN: (0) RECORDING REQUESTED BY AND WHEN RECORDED MAIL. To: Community Development Commission of the City of Rohnert Park 6750 Commerce Boulevard Rohnert Park, California 94928 Attention: Executive Director (Space Above This Line for Recorder's Use Only) Exempt from recording fee per Gov_ Code § 27383. PARKING LOT IMPROVEMENT AGREEMENT THIS PARKING LOT IMPROVEMENT AGREEMENT ( "Parking Agreement ") is made and entered into on this day of ( "Effective Date ") among BURBANK HOUSING DEVELOPMENT CORPORATION, a California non -profit public benefit corporation, COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF R01-INERT PARK, a public body corporate and politic ( "Corrunission ") and THE CITY OF ROIINERT PARK, a California municipal corporation ( "City ") RECITALS A. Commission and Developer have executed an Affordable Housing and Loan Agreement ( "Affordable Housing Agreement ") dated for identification purposes as of 2005, which provides, among other things, for Cormnission's disposition to Developer of that certain real property ( "Site ") located in the City of Rohnert Park, County of Sonoma, State of California, Developer's construction and installation of Improvements including affordable housing and ancillary recreational, open space and parking uses, and appurtenant on -site and off -site improvements (including certain Public Improvements, as defined in Section 301.2 of the Affordable Housing Agreement). Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Affordable Housing Agreement, B. The real property initially identified as the Site does not comply with parking requirements applicable to the Project. C. In order to assist Developer in meeting Project parking requirements, City, per Commission's request, intends to transfer the Burbank Lot (as defined below) to Commission. Conmiission in turn will transfer the Burbank Lot to Developer subject to the terms and conditions contained in the Affordable Housing Agreement and this Parking Agreement. D. The City of Rohnert Park ( "City ") currently owns two lots referred to herein as the "City Lot" and the "Burbank Loi ". The Burbank Lot is currently used for parking of public safety and other municipal vehicles, and is located in close proximity to the City of Rohnert Park Police Station. The City Lot is currently undeveloped, and is in close proximity to the Police Station and the Burbank Lot. Descriptions of the City Lot and Burbank Lots are attached hereto as Exhibits A and B, respectively, and incorporated by reference. The City Lot and the Burbank Lot are collectively referred to herein as the "Parking Lots." E. Upon transfer of the Burbank Lot, City will lose necessary secured parking capacity for public safety and other municipal vehicles in the area of the Burbank Lot. Without development of the City 820633v2C 80078/0022 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. 2.4. Standard and Examination of Work. All Work shall be completed in a good and workmanlike manner, in accordance with the flans and applicable specifications and accepted construction practices and in a manner equal or superior to the requirements of the City's Municipal Code and rulings made under it, and to the satisfaction of the City Engineer, in his or her 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. Developer shall pay the actual cost for all inspection, administration and testing services furnished by Commission or City in connection with this Parking Agreement, including those performed by consultants under contract with the Commission or City, within thirty (30) days of Commission's or City's written request therefor. Completion and Acceptance. 3.1. Completion of Work. After Developer (a) completes the Work in accordance with the Plans and the terms and conditions of this Parking Agreement, (b) repairs any road, street, or private or public property damaged as a result of the Work or pays the full cost of such repair to the owner whose property was damaged, and (c) obtains the written acceptance of such repair or payment from any owner whose private property was repaired by Developer or to whom Developer paid the full cost of such repair, the Developer shall provide City with notification thereof, together with copies of all written acceptances_ 3.2. Notice of Completion. Within sixty (60) days of receipt of Developer's written notification pursuant to Section 3.1 above, the City Engineer shall inspect the Work and repairs and review the written acceptances, if any, and send Developer a written notice stating whether the Work and repair are complete to the satisfaction of the City Engineer, in his or her reasonable discretion, and whether the written acceptances have been provided. If the Work and repair are, in the opinion of the City Engineer, not complete and satisfactory, and /or written acceptances have not been provided, the City Engineer will list the deficiencies that must be corrected to find the Work and repair complete and satisfactory. Upon satisfactory completion of the Work and repair and submittal of written acceptances, the City Engineer will send Developer a written notice of satisfactory completion. The requirement for written acceptances may be waived by the City Engineer, in his reasonable discretion, if Developer has made convnercially reasonable efforts to obtain such acceptances_ City Engineer's failure to respond to Developer's written notification within sixty (60) days will not be deemed a breach or default under this Agreement or the Affordable Housing Agreement, and shall not operate as notice of completion or an acceptance of the Work. 3.3. Acceptance of Work. After sending Developer a written notice of satisfactory completion pursuant to Section 32, the City Engineer will recommend acceptance of the Work to the City Council. The acceptance of the Work, offers of dedication and right -of -way and easements, if any, shall be by resolution. Upon adoption of such resolution, the City Engineer shall record a notice, in a form to be approved by the City Attorney, in the Official Records of Sonoma County. The provisions of this Section 3.3 are expressly subject to Section 9.1 of this Parking Agreement. 4. Performance, Labor and Materials and Warranty Security. 4.1. Developer will furnish and deliver to City, within the times set forth below, the following surety bonds, each of which must be issued by a surety company duly and regularly authorized to do general surety business in the State of California, or such other surety as may be acceptable to the City Attorney. In the event of default, the financial institution holding the bonds shall be liable to City to pay the face amount of the bonds_ -3- 820633v2C 80078/0022 with any and all changes incorporated therein. Said drawings shall be signed and sealed as accurate by the engineer of record_ 7. Prevailing Wages 7.1. Developer Obligations. Developer acknowledges and agrees that the Work will constitute construction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds under Labor Section 1720. Accordingly, Developer shall comply with any prevailing wage policies as set forth in the Rohnert Park Municipal Code, if applicable, as well as all State Labor Code requirements pertaining to "public works," including the payment of prevailing wages in connection with development of the Project (collectively, "Prevailing Wage Policies")- Developer shall require the general contractor for the Project to submit, upon request by the Commission, certified copies of payroll records to Commission and to maintain and make records available to Commission and its designees for inspection and copying to ensure compliance with Prevailing Wage Policies. Developer shall also include in its general contractor agreement, a provision in form acceptable to Commmission, obligating the general contractor or lessee, as applicable, to require its contractors and/or subcontractors to comply with Prevailing Wage Policies, and to submit, upon request by the Commission, certified copies of payroll records to Commission and to maintain and make such payroll records available to Commission and its designees for inspection and copying during regular business hours at the Site or at another location within the City of Rohnert Park_ 7.2_ Indemnity. Developer shall defend, indemnify and hold harmless City, Commission, and its and their officers, officials, employees, volunteers, agents and representatives (collectively, "Indemnitees ") from and against any and all Claims arising out of or in any way connected with Developer's obligation to comply with all laws with respect to the Work or Prevailing Wage Policies, including all Claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code sections 1726 and 1781, as amended and added by Senate Bill 966. 8. Liens and Stop Notices. Developer shall not allow to be placed on the Site, the Burbank Lot, or any part thereof, any lien or stop notice. If a claim of a lien or stop notice is given or recorded affecting the Work, Developer shall within thirty (30) days of such recording or service: (i) pay and discharge the same; (ii) affect the release thereof by recording and delivering to the City a surety bond in sufficient form and amount; or (iii) provide the City with other assurance which City deems, in its sole discretion, to be satisfactory for the payment of such lien or bonded stop notice and for the full and continuous protection of City from the effect of such lien or bonded stop notice. 9. Permits. 9.1. Developer shall obtain, at its sole cost and expense, any and all permits and approvals required for construction and installation of the Work. City and Developer agree to act promptly and in good faith to expedite the issuance of permits necessary for the Work. Notwithstanding the foregoing, it is expressly acknowledged, understood and agreed by the parties that (a) City and Commission shall act independently of Developer and each other, reserving full and complete discretion with respect to pursuing any approvals (including but not limited to City Council and Planning Commission actions and CFQA approvals), (b) nothing in this Parking Agreement is intended to or shall abrogate or delegate Commission's or City's discretionary powers, (c) nothing in this Parking Agreement is intended to or shall prejudge or commit to Commission or City regarding the findings and deternunations to be made with respect thereto, and (d) neither Couir ission nor City shall bear any liability toward Developer in connection therewith. -5- 820633v2C 80078/0022 (C) The inclusion of more than one insured shall not operate to impair the rights of one insured against another insured, and the coverage afforded shall apply as though separate policies had been issued to each insured, but the inclusion of more than one insured shall not operate to increase the limits of the insurer's liability. 12.2. Developer's insurance is primary coverage to the Commission and the City, and any insurance or self - insurance programs maintained by the Commission or the City is excess to Developer's insurance and will not be called upon to contribute with it. 12.3. Any failure to comply with reporting or other provisions of the parties, including breach of warranties, shall not affect coverage provided to the City, the Commission, and their respective officers, agents, employees, volunteers, and representatives. 12.4. Developer shall also obtain and maintain throughout the term of this Parking Agreement comprehensive automobile liability insurance with coverage at least as broad as ISO Form numbers CA 000106 92, Code 1 (any auto), for vehicles used in the performance of this Parking Agreement with minimum coverage of not less than $1,000,000 per accident combined single limit (CSL). Such policy shall contain or be endorsed with the provision that coverage shall not be canceled or materially reduced in coverage without thirty (30) days prior written notice (ten (10) days for non - payment of premium) to the Commission and the City by certified mail. 12.5. After the date of this Parking Agreement, but in all events prior to the start of Work, Developer shall also obtain (and maintain until the completion and acceptance of such Work pursuant to this Parking Agreement) combined single limit, and builder's all -risk insurance in an amount not less than the full insurable value of the Work on a replacement cost basis together with vandalism and malicious mischief endorsement and such other endorsements as City or Commission may reasonably require, and shall furnish or cause to be furnished to the City or Commission evidence satisfactory to the City or Commission that Developer and any contractor with whom it has contracted for the performance of the Work contemplated under this Parking Agreement, whether on or off the City Lot, or otherwise pursuant to this Parking Agreement carries workers' compensation insurance as required by law. 12.6. Worker's Compensation insurance meeting statutory limits of applicable Labor Code provisions, which policy shall contain or be endorsed to contain a waiver of subrogation against the City, the Commission, and their respective officers, agents, employees, volunteers, and representatives, and provide for thirty (30) days prior written notice to Commission and City in the event of cancellation. If Developer has no employees, Developer may sign and file the following certification in lieu of insurance: "I am aware of the provisions of California Labor Code Section 3700 which requires every employer to be insured against liability for workers' compensation or to undertake self - insurance in accordance with the provisions of that code, and I will comply with the provisions of that code before commencing with and during the performance of the work of this contract_" 12.7. Companies writing the insurance required hereunder shall be licensed to do business in the State of California_ Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A -. Developer shall furnish a notarized certificate of insurance countersigned by an authorized agent of the insurance carrier on a form reasonably approved by the Commission and City setting forth the general provisions of the insurance coverage. This countersigned certificate shall name City, Commission, and their respective officers, agents, employees, volunteers, and representatives as additionally insured parties under the policies required hereunder, and any certificates shall be accompanied by a duly executed endorsement evidencing such additional insured status. The certificate and endorsements by the insurance carrier shall contain a statement of obligation on the part of the carrier to notify City and Comn-iission of 7- 820633v2C 80078/0022 shall be deemed effective on the earliest of (a) actual receipt; (b) rejection of delivery; (c) if sent by certified mail, the third day on which regular United States mail delivery service is provided after the day of mailing or, if sent by overnight delivery service, on the next day on which such service makes next - business -day deliveries after the day of sending. To Commission: Community Development Commission of the City of Rohnert Park 6750 Commerce Boulevard Rohnert Park, California 94928 Attention: Executive Director Telephone: (707) 588 -2227 Facsimile: (707) 588 -2274 To City: City of Rohnert Park . 6750 Commerce Boulevard Rohnert Park, California 94928 Attention: City Attorney Telephone: (707) 588 -2227 Facsimile: (707) 588 -2274 With a copy of any . McDonough, Holland & Allen notice to City or 1901 Harrison Street, 9th floor Commission to: Oakland, California 94612 -3501 Attention: Susanne M. Brown, Esq. Telephone: (510) 273 -8780 Facsimile: (510) 839 -9104 To Developer: Burbank Housing Development Corporation 3432 -A Mendocino Avenue Santa Rosa, California 95403 -2274 Attention: Jeanne Blake Telephone: (707) 526 -9782 Facsimile: (707) 526-9811 With a copy to: Gubb & Barshay, LLP 50 California Street, Suite 3155 San Francisco, California 94111 Attention: Scott R. Barshay, Esq. Telephone: (415) 781 -6600 Facsimile: (415) 781 -6967 Any written notice, demand or communication shall be deemed received immediately if delivered by hand, on the third day from the date it is postmarked if delivered by first -class mail, postage prepaid, upon receipt of verification of transmission if sent via facsimile provided a copy is sent the same day via first -class mail, and on the next business day if sent via nationally recognized overnight courier. Notices sent by a party's attorney on behalf of such party shall be deemed delivered by such party. 13.4. Successors and Assigns. Subject to the prohibitions against changes in the ownership, management and control of Developer set forth herein and in the Affordable Housing Agreement, the Affordable Housing and Maintenance Covenant, the Grant Deed including Covenants, which documents are incorporated by this reference, all of the terms, covenants and conditions of this Parking Agreement shall be binding upon Developer and its permitted successors and assigns_ Whenever the term "Developer" -9- 820633v2C 80078/0022 13.9. Titles and Captions. ions. "Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Parking Agreement or of any of its terms. Reference to section numbers are to sections in this Parking Agreement, unless expressly stated otherwise. 13.10. Interpretation. As used in this Parking Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates_ The word "including" shall be construed as if followed by the words "without limitation." This Parking Agreement shall be interpreted as though prepared jointly by both parties. 13.11. No Waiver. A waiver by either party of a breach of any of the covenants, conditions or agreements under this Parking Agreement to be performed by the other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions of this Parking Agreement- 13.12. Modifications. Any alteration, change or modification of or to this Parking Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each party. 13.13. Severability. If any term, provision, condition or covenant of this Parking Agreement or its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Parking Agreement, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law. 1 3.14. Legal Advice. Each party represents and warrants to the other the following: they have carefully read this Parking Agreement, and in signing this Parking Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Parking Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Parking Agreement; and, they have freely signed this Parking Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective officers, agents, employees, volunteers, and representatives, or attorneys, except as specifically set forth in this Parking Agreement, and without duress or coercion, whether economic or otherwise_ 13.15. Time of Essence. Time is of the essence with respect to the performance by the Conunission and Developer of each and every obligation and condition of this Parking Agreement. 13.16. Cooperation. Each party agrees to cooperate with the other in this transaction and, in that regard, shall execute any and all documents which may be reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this Parking Agreement including, but not limited to, releases or additional agreements. 13.17. Indemnity. Developer shall defend (with counsel reasonably acceptable to the Commission), indemnify, assume all responsibility for, and hold the Indemnitees, harmless from and against any and all present and future liabilities, obligations, orders, claims, damages, fines, penalties and expenses (including attorneys' fees and costs) (collectively, "Claims ") relating to the subject matter of this Parking Agreement, including the Work, the Burbank Lot, or the implementation hereof and for any damages to property or injuries to persons, including accidental death (including attorneys fees and costs), which may be caused by any of Developer's or Developer's Parties' activities under this Parking Agreement, whether such activities or performance thereof be by Developer or by anyone directly or indirectly employed or contracted with by Developer and whether such damage shall accrue or be discovered before or after termination of this Parking Agreement. The aforementioned indemnity shall apply regardless of whether or not the Indemnitees have prepared, supplied or approved plans and/or specifications for the Work and regardless of whether any insurance required under this Parking Agreement is applicable to any Claims. Neither Commission nor City waive or shall waive any of their rights under -11- 820633v2C 80078/0022 IN WITNESS WHEREOF, Commission, City and Developer have executed this Parking Agreement as of the Effective Date. Dated Dated: DEVELOPER: BURBANK HOUSING DEVELOPMENT CORPORATION, a California non -profit public benefit corporation By: Name: Title: By: _ Name: Title: /Signature must be notarized] /Signature must be notarized] COMMISSION: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF ROHNERT PARK, a public body corporate and politic By: Name: Title: [Signature must be notarized] ATTEST: Commission Secretary APPROVED AS TO FORM: General Counsel -13- 820633v2C 80078/0022 EXHIBIT "A" CITY LOT (wrxw oso�at.tie_y I (x„r rk,: oso�.m) � ' e - 2 � x f � o / ►-1 f J 3N8o naroJLVts / n � 2 b (n { f f O - t f - r - m � z �(� m - • 0'1 Y E 2 '705 o n z � w A U NO N o A O n O y Z Z � O fr7 D Cl { v A 1 � 50017 0' 2 Q < 000 00 E f t 189.38/ �J cu o x o 4A- r N� V tq t" „ A EA TO B COAdf31NE0 N � O ° WI TH L T "A" t° o O o _ y •if D � H _ o ; Q - o sool b O D A A i N � ;u - m O 3 AC) t o C) (n D t ) x1 F ] o < � o O O a ) to n 0 > D " r 9 x I D O � �• `t� � {J pi p x z xp 0 -� EXHIBIT "B" Page 2 of 2 BURBANK LOT PORTION TO BE COMBINED Lying within the City of kohnert Park, County of Sonoma, State of Catifomia, and being a portion of Lot 4 of Parcel Map No. 170, filed for record in Book 636 of Maps, Pages 12 and 13, Sonoma County Records, said portion being more particularly described as follows: Beginning at the northwest comer of said Lot 4 as shown on said map; thence along the northerly line of said lots North 89 °23'08" East, 77.91 feet; thence leaving said northerly line, South {10°17'00" West, 190.45 feet; thence North 89 °43'00" West, 15.38 feet; thence on a curve to the left, radius of 108.00 feet, length of 40.13 feet, central angle of 21'17'20"; thence on a reverse curve, radius of 92.00 feet, length of 24.07 feet, central angle of 14'59'15" to the westerly line of said lot; thence along said westerly line North 00 °17'00°" East, 202.32 feet to the POINT OF BEGINNING. Containing 15,135 sq. ft. more or less. This description prepared by Carlile • Macy. Bruce E. Jarvis PLS 5143 Exp. 6/30/07 APPROVED BY: City of Rohnert Park /� o City V/�giineer 1 11ate Date N THE PURPOSE OF THIS DEED IS FOR A LOT LINE ADJUSTMEN-VhOR THE COMBINATION OF A PORTION OF THE LANDS OF THE CITY OF ROHNERT PARK, AS DESCRIBED BY DEED RECORDED IN BOOK 3405 OFFICIAL. RECORDS, PAGE 824, SONOMA COUNTY RECORDS, APN 143 -051 -079, WITH THE LANDS OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF ROHNERT PARK, AS DESCRIBED BY DEED RECORDED UNDER DOCUMENT NO. 2003 -034407, SONOMA COUNTY RECORDS, APN 143 -051 -064. THIS DEED IS PURSUANT TO LLA _ - ON FILE IN THE OFFICE OF THE CITY OF ROHNERT PARK PLANNING DEPARTMENT. IT IS THE EXPRESS INTENT OF THE SIGNATORS HERETO THAT THE RECORDATION OF THIS DEED EXTINGUISHES ANY UNDERLYING PARCELS OR PORTIONS OF PARCELS. END OF DESCRIPTION 7L5 2003074.00/LD/LLA- Combined EXHH3IT D SCHEDULE OF PERFORMANCE Developer shall work with Public Safety staff to coordinate construction phasing of parking lots. The parties anticipate that the target completion date will be no later than October 2006. Exhibit D 820633v2C80078/0022