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2015/08/11 City Council Resolution 2015-134RESOLUTION ! COUNCIL OF OF ROHNERT PARK AUTHORIZING AND APPROVING AN • ! • PURCHASE AND SALE (INCLUDING JOINT ESCROW !, AND ! DEVELOPMENT OF 5870 LABATH AVENUE WITH 356 ADVISORS AND MJW INVESTMENTS WHEREAS, the City of Rohnert Park ("City") is owner of property at 5870 Labath Avenue, consisting of approximately 12.25 acres of the aforementioned land (the "Property"); and WHEREAS, the Property zoned Commercial r egi s # Area Master Plan Planned Development Zoning District; and WHEREAS, the City is seeking to sell the property in order to encourage economic development in the community by converting vacant land into uses that are both employment ani revenue generators; an#' on f # 2014, the Planning Commission of of Rohnert includes [*'ark conducted a review pursuant to Government Code Section 65402 and determined that the of Rohnert Park General Plan; and WHEREAS, the City received an offer from 356 Advisors and MJW Investments (collectively the "Buyers") to purchase and develop the Property; and WHEREAS, the City and Buyers negotiated the terms of an Agreement for Purchase ant Sale (Including Joint Escrow Instructions) and Terms of Development for the Property which • hotel • d retail/commercial/office projects NOW, THEREFORE, the City Council of the City of Rohnert Park does hereby resolve, determine, # • # order as # # Section 1. Re " c " i ' tals. The above referenced recitals are true and correct and are incorporated into and form a material part of this Resolution. Section 2. Environ ' mental Review. The transfer of ownership of the property from the City to Buyer is exempt from CEQA review under CEQA Guidelines section 15061(b)(3) because there is no possibility #.. the conveyance to have an effect on # Section hereby consents to the sale of Property # Buyers for • price of # One Hundre Fifty Thousand !# ($7,150,000.00) and approves Agreement # Purchase • * Sale (Including Joint Escrow Instructions) and Terms of Development in substantially similar form provided for in "Exhibit A", attached hereto and incorporated by this reference and hereby I authorizes the Mayor to execute the Agreement subject to minor modifications as approved by the City Attorney. Section 4. Section 65402 Consistency. Pursuant to Government Code Section 65402, the City Council hereby affirms and accepts the City Planning Commission's recommended finding that the actions described in this Resolution are consistent with the City's General Plan. Section 5. A yoval of l=)ced. The Mayor is hereby authorized and directed to execute a Grant Deed for and on behalf of the City of Rohnert Park, subject to the terms stated in the Agreement for Purchase and Sale (Including Joint Escrow Instructions) and Terms of Development, and to the review and acceptance by the City Attorney. Section 6. Other Actions Authorized. Subject to review and acceptance by the City Attorney, the Mayor and City Manager, as appropriate, are hereby authorized and directed to take all actions necessary or reasonably required to carry out, give effect to, and consummate the transactions contemplated by this Resolution and to take all action necessary in conformity therewith. Section 7. S „eyerability. If any action, subsection, sentence, clause or phrase of this Resolution shall be held invalid or unconstitutional by a court of competent jurisdiction, such invalidity shall not affect the validity of the remaining portions of this Resolution that can be given effect without the invalid provisions. DULY AND REGULARLY ADOPTED this I Itn day of August, 2015. CITY OF I ()I 1 ERT PARK Amy O. Ahanotu, Mayor ATTEST: I Arinc Buergler, City (`1erk Attachments: Exhibit A, Agreement for Purchase and Sale (Including Joint Escrow Instructions) and Terms of Development between the City of Rohnert Park and 356 Advisors and MJW Investments. CALLINAN NyE MACKENZIE: STAFFORD: PyE BELFORTE AHANOTU: A`lE AYES: (y ) NOES: ( 0 ) ABSENT: ( � ) ABSTAIN: ( C) ) Wye I 1 .11 Y II\ HIM ! 1 I DI Nkyj KIM 0 U DMA 01 IM ' This Agreement for Purchase and Sale Joint Escrow and Terms of Development ("Agmcemuemt"), dated osof 2015, ("Effective Date"), is between the {�lIY OF ROBO�ER]�P}\R]{, aCu1ifbrnia municipal corporation ("Seller" or "City"), and 356 AI]\/lS()FlS, INC., a California corporation, aodMJW INVESTMENTS, [.[C, u California limited liability corporation k:uob a "Buyer Party" and collectively, "Buyer"). RECITALS A. Seller desires to noU that certain real property consisting of 12.25 acres and located at LabothAvome and Carlson Avenue iu the City ofRohnertPark, as more particularly described and depicted on ]-,',x ' I ' 1 ' J ' b - i " I A, attached hereto and incorporated herein bythis reference (the "Property"), in order Dn Property to be developed with nhnto| and retail uses. B. Buyer has submitted a proposal to Seller to acquire the Property from Seller at fair market value and obtain land use entitlements to develop and construct up to a 300-room select service and suite hotel with uretoU component on the Property 0bc "Project"). C. On September 11, 2014, the Planning Commission of the City of Rohnert Park conducted u review pursuant to Government Code Section 65402 and determined that Seller's disposition nfthe Property to Buyer pursuant tn the terms hereof in consistent with, and will facilitate innp|eooeoto1inu of the City ofRobnnrtPark General Plan, as adopted hyPlanning Commission Resolution No. 20\4-37. D. On 2015, the City Council of the City ofRobuert Park (�CNy Cmuncil") considered and hv Resolution No. approved Seller entering into this ARTICLE I PROPERTY— Section 8.I Incorporation oJRecitals. The recitals set forth above are incorporated herein hythis reference. Section 1.2 Sale. Seller agrees to sell toBuyer, and Buyer agrees tn purchase from Seller, oV the terms and conditions set forth herein, the Property together with any and all rights, privileges and easements appurtenant thereto owned hvSeller. Section 1.3 Purchase Price. The purchase price for the Property ioSeven Million One Hundred and Fifty Thousand Dollars ($7,l5O,O00.00)(PmrohmomX^xicm`). The Purchase Price shall ho paid to Seller o1Closing, as defined bz Section 6.2(u), io immediately available funds. The Purchase Price was determined based on a survey of comparable parcels and an OAK #4825-3884 06 ov9 evaluation nf potential uses of the Property. ho the event that the acreage ofthe Property is modified, the Purchase Price shall hn proportionately adjusted. bJ Boyer intends 0o develop the Project outhe Property and will ouunk applications for land use entitlements to Seller, as City ofBohnsdPark, as soon as practicable after the Effective Date, vvbiob eo1d!umeuta shall include uCoudhiuuoJ Use Permit, Site Plan and Architectural Review and a Development Agreement. (b) Buyer acknowledges that such applications shall include the requirement to enter into u Reimbursement Agreement with City, in ofoom approved byCity, to reimburse City for its customary costs ioprocessing the land use entitlements for the Project. These costs include, but are not limited to, fee types listed iu the Development, Fire Services, Planning, Engineering, and Building fee schedules adopted byCity. Further, Buyer agrees and acknowledges that the City xhuU conduct unoffio and parking analysis, including dcozoudo for the proposed Project, uapodnftbcCB{)Aprouomsfbc1bepr 'oc1,whiubobaUbefbudrdby Buyer. (u) Buyer o@7ccs and acknowledges that it will be required to cu1sr into a Development Agreement, in uDnun approved by City and including the terms set forth in Exhibit B,aUuchndhereto and incorporated herein hy reference, vvbichvviUgrant Buyer vested rigbtoand set forth the obligations of Buyer to develop the Project. The terms nf the Development f\gceecucot, including phasing requirements as set forth in L,,xhibit B, shall be incorporated by reference in this f\gccecoeot, with such additional terms um may bs negotiated bythe parties. (d) The City makes on representations oub) the processing of the applications and retains discretion to approve, disapprove or condition such applications, which may include modifications 10 the proposed Project umoyp/ovodhytheCi1yiui1ndiocrxtiou. (a) Within three business days of Escrow being opened um outlined bnSection 6.1 of this agreement (Title Company tonotify all parties nf the exact 6ate),Buyer shall deliver into escrow a good faith deposit in the amount of Fifty Thousand Dollars ($50,000.00) ("First Good Faith Deposit"). The First Good Faith Deposit shall serve ao security for the performance of Buyer's obligations under this Agreement, obo1l be applied towards the Purchase Price at Closing and is fully refundable to Buyer prior to the expiration of the Due Diligence Period (aou Section 3.4). After the Due Diligence Period, the First Good Faith Deposit shall hc nonrefundable and shall constitute liquidated damages to Seller in the event the purchase and sale io not completed aa provided herein. (b) Within three business days after expiration of the Due Diligence Period, assuming Buyer approves the Property and elects to proceed, Buyer shall deliver into escrow u second good faith deposit in the amount of One Hundred Thousand ($100,000.00) ("Second Good Faith Deposit"). The Second Good Faith Deposit shall serve um security for the performance nfBuyer's obligations under this Agreement, shall be applied towards the Purchase Price ot Closing and shall constitute liquidated doozugem and bc nonrefundable toBuyer. The OAK #4825-3884-0612 v92 OAK.44825-3884-0612 v93 ANY RIGHT TO SPECIFIC PERFORMANCE OR ANY OTHER REJT,1EDTAT LAW OR IN EQUITY. Seller's Initials MOWInvestments, LLC ludkdx 356 Advisors, Inc. Initials If this Agreement is not cancelled m terminated, as provided hereiumdeGoodFaith Deposits are not retained by Seller as liquidated damages, the Good Faith Deposits shal/be credited against the Purchase Price at Closing. Section 2.1 Buyer's Conditions Precedent toConveyance. Buyer's obligation to purchase the Property io conditioned upon the (a) All ofthe representations and warranties made bm Seller toBuyer pursuant to this Agreement shall botrue and correct ivall material respect as of the Closing doto an if made mosuch date. (b) Pursuant to Section 3.4, Buyer shall have completed its due diligence within the Due Diligence Period and provided written notice to Seller that all uoyeoLo of the Property are acceptable toBuyer. Title Company (as defined in Section 6.|) shall provide notice to the parties of the time-frame; however, failure of Title Company to provide such notification shall not effect Buyer's obligations hereunder. The parties in good faith shall undertake such actions to direct the Title Company to issue the aforementioned notification in a timely manner. (m) Seller shall have delivered each of the documents described iaSection 8.3(a), prior tothe Closing date. (d) Title Company (as dcfiocdiu Section 6.l) shall have issued onirrevocable and unconditional commitment to issue the Title Policy (as defined in Section 4.3) upon recordation nf the Grant Deed (as defined io Section 4.l). (e) Seller shall not hciu material default of any of its obligations under this Agreement following notice and expiration of any applicable cure period. The conditions precedent 10 conveyance set forth in this Section 2.1 ("Buyer's Conditions Precedent to Conveyance") are solely for the benefit of Buyer and may be waived only byBuyer. No such waiver obaU bc binding upon Buyer unless made io writing 6y an authorized representative ofBuyer. OAK #4825-3984-0612 v94 Section 2.2 Seller's Conditions Precedent tm Conveyance. Seller's obligation tn sell the Property io conditioned upon the : (a) All ofthe representations md warranties made \mBuyer to Seller pursuant to this Agreement shall be true and correct inall material respect as of the Closing date, as if made ou such date. (b) Buyer shall have delivered the Good Faith Deposits into Escrow, uo required by Sou1inu 1.5. (u) Buyer shall have delivered each of the items described iu Section 6.3(b) prior to the Closing date, and shall have performed all of its obligations under this Agreement in accordance with the provisions hereof. (d) Buyer shall have obtained all discretionary land use entitlements necessary to develop the Project. (e) Buyer and Seller shall have entered into a Development Agreement ina fbon approved by the City Council, vvbiob iucoq)oo4ma the terms set fbdb in attached hereto, with such additional terms ao may he negotiated by the parties. (f) Buyer ubaD be prepared to obtain building permits and to construct the }{o1e1 immediately upon close of escrow, as demonstrated byon agreement between Buyer and u hotel operator or franchise and a construction contract between Buyer and a contractor ready to begin construction of the Hotel. (g) Buyer shall not huin material default nf any ofits obligations under this Agreement following notice and expiration of any applicable cure period. The conditions precedent to conveyance set fbdb in this 8eutk)o 2.2 ("Seller's Conditions Precedent toComveymmme") are solely for the benefit of Seller and may hewaived only by Seller. No such waiver mboU be binding upon Seller unless rundo in writing hyoo authorized representative ofSeller. ARTICLE III REPRESENTATIONS AND WARRANTIES, BUYER'S DUE DILIGENCE, AND DISCLAIMERS AND RELEASES Section 3.1 Representations and Warranties ofSeller. Seller hereby makes the following representations and warranties. bA Seller, noof the Effective Date, owns fee simple title tothe (b) There iouo litigation, uutk/n, mud, arbitration, ubdnm proceeding or governmental investigation in law or equity pending or, to Seller's actual knowledge, threatened, OAK #4825-3884 06 �2 v95 with respect 0othe Property or against Seller which would prevent Seller from performing its obligations hereunder, or which would have u material adverse effect nuthe Property orBuyer. (c) Tn the best nf Seller's knowledge, Seller's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Seller is a party or by which it is bound. (d) 7n the best of Seller's knowledge, the governmental reports, notices, soils tests, environmental reports, plans, surveys, engineering reports, and other documents, iofornoo1ino and data relative 1nthe Property delivered or made nvnilnh|s by Seller to Buyer pursuant to Section 3.4 below, represent all Seller Materials, as defined in 8cu1ioo 3.4 below, that are in Seller's possession orunder Seller's uootcn}. (m) Seller obuU maintain the Property until Closing in uzououer generally consistent with the manner in which Seller has maintained the Property prior to the date of this /\grouoleoL (<) Prior to Closing, Seller will not violate or modify, orally or in writing, any lease, cord,au1, understanding or any n1be/ agreements, or create any new leases or other agreements affecting the Property, without Buyer's written approval. (n) To the best of Seller's knowledge, unperson, except ua disclosed bythis /\groonueut or otherwise in writing to Buyer, has any right 1opossession of the Property. There exist no oral or written leases or rental agreements affecting all or any portion of the Property. (h) 7n the best of Seller's knowledge, there are no sums due, owing orunpaid for labor and oua1criu|s furnished 10 the Property which nuiubt give rise to uooucbuoio`s or nuo1edu/noan^n lien. (i) Seller will convey fee simple title to Buyer subject only o)the Pcrozd1ud Exceptions, ondnfioediu Section 4.2below. Seller agrees not to create any new title exceptions following the Effective Z)o1c uu|oaa Buyer's written approval n[ such new cucsPtiVo/n\ is first obtained. 0) All references herein to ^"Sc|lur`o knowledge" means the current, uutuo] knowledge of Darrin Jenkins or his designee ("Seller's Representative"), without any obligation of inquiry, and such term shall not include the knowledge of any other person or firm, it being understood by Buyer that (a) Seller's Representative was not involved in the operation of the Property before ScDsr"u acquisition nf the Property, (b) ScUcr^n Representative in not charged with knowledge of any of the acts or omissions of predecessors in title to the Property orthe management of the Property before Seller's acquisition of the Property, and (c) Seller's current actual knowledge shall not apply to, or be construed to include, information or material which may boio the possession of Seller generally or incidentally, but of which Seller's Representative io not actually aware. (k) Each of the representations and warranties of Seller contained iuthis Section 3.1 is true as of the Effective Date, and shall be deemed remade hy Seller and shall be true uonf the Closing date. OAK #4825-3884-0612 ,96 Buyer represents and warrants to Seller as fhDovvm: (m) 356 Advisors, Inc. is corporation organized under the laws of the State nf California, and MJW Investments, LLC,imulbnitodliubUit«oorporodnu organized under the |avvo of the State ofCalifornia. Each Buyer Party has full right, power and 1omvtb/ authority to undertake all obligations of Buyer us provided herein and the execution, performance and delivery of this Agreement by each Buyer Party has been fully authorized by all requisite company actions on the part of the Buyer Party, which have been provided to City for review. (b) To the best of each Buyer Party's knowledge, Buyer's execution, delivery and performance o{ its obligations under this Agreement will not constitute u default orabreach under any contract, agreement or order to which any Buyer Party ima party cobv which bin (c) No Buyer Party is the subject of any bankruptcy proceeding. (d) There are no actions, suits, cnuturkd claims, !ouo/ proceedings, or any other proceedings affecting any Buyer Party that would affect its authority to enter into and undertake all obligations under this Agreement. Each ofthe representations and warranties of Buyer contained iuthis Section 9.2iotrue as of the Effective Date, and shall be deemed remade by Buyer and shall be true as of the date of The representations and warranties of Seller and Buyer contained herein shall survive for o period of two CD years after the Closing (the "Survival Perimd,). Any claim which Buyer nr Seller may have at any time against the other for u breach of any such representation nrwarranty, whether known or unknown, p/bicb is not asserted by written notice to the other within the Survival Period shall he deemed waived, unless odzemviou agreed iu writing by the parties. Within 90 calendar days following the Effective Date (DmeDiligence Buyer shall have reviewed, inspected and investigated, at its expense, the Property, either independently or through agents of Buyer's choosing, including, but not limited to, the following: (a) The size and dimensions nfthe Property, (b) The availability and adequacy of water, sewage, fire protection, and any utilities serving the Property. (c) All matters relating to title, including extent and conditions of title tothe taxes, assessments, and liens. OAK #4825 3884 0612 v97 (d) All legal and governmental laws, statutes, rules, regulations, ordinances, and restrictions or requirements concerning the use and development of the Property including zoning, use permit requirements and building codes. (e) Natural hazards, including flood plain issues, currently or potentially concerning or affecting the Property. (f) The physical, legal, economic and environmental condition and aspects of the Property, and all other matters concerning the conditions, use, sale or development of the Property, including any permits, licenses, engineers' reports and studies and similar information relating to the Property. Such examination of the condition of the Property may include examinations for the presence or absence of Hazardous Materials, as defined below, as Buyer deems necessary or desirable. The term "Hazardous Materials" means any and all substances, contaminants, chemicals, wastes, sewage, materials or emissions which are now or hereafter regulated, controlled, prohibited or otherwise affected by any present or future local, state or federal statute, ordinance, code, rule, regulation, order, decree, permit or other law now or hereafter in effect, including but not limited to (i) asbestos (including asbestos-containing materials); (ii) flammable, explosive, infectious, carcinogenic, mutagenic, or radioactive materials; (iii) petroleum or any substance containing or consisting of petroleum hydrocarbons (including gasoline, diesel fuel, motor oil, waste oil, grease or any other fraction of crude oil); (iv) paints and solvents; (v) lead; (vi) cyanide; (vii) DDT; (viii) printing inks; (ix) acids; (x) pesticides; (xi) ammonium compounds; (xii) polychlorinated biphenyls; (xiii) radon and radon gas; and (xiv) electromagnetic or magnetic materials, substances or emissions. (g) Any easements and/or access rights affecting the Property, (h) Any contracts and other documents or agreements affecting the Property. (i) All other matters of material significance affecting the Property. Within ten (10) business days of the Effective Date, Seller shall deliver or make available to Buyer copies of all governmental reports, notices, soils tests, environmental reports, plans, surveys, engineering reports, and any other material documents, information and data relative to the Property that are in Seller's possession or under Seller's control ("Seller Materials"). WRICARAWMISCIVATA I Isom" RAI OAK #4825-3884-0612 v98 OAK#4825 3884-06P v99 Notwithstanding the foregoing, the ��n��d waiver nfCb�os��tb�8�d� 3.7ohu|uotopp|v0oauyCkio�mmin' from the sole active negligence or willful misconduct of Seller or from breaches by Seller of this Agreement (including but not lhodcd to bo:ucbem of representations and vvu;rnotico of Seller expressly out forth herein). The provisions of this Section 9.7 are a material portion of the consideration given by each party to the other in exchange for such party's performance under this Agreement and shall survive the Closing. ARTICLE IV CONVEYANCE AND TITA Section 4.1 At the Ck)nhno Seller obu|| convey title tnthe Property 10 Buyer by grant deed in atbrou substantially similar to that attached hereto us l� ("Grant Deed"), free of any possession right exceptions approved by Buyer pursuant 10 Section 4.2below. The Grant Deed shall provide that the Seller has the right tn repurchase the Property io the event that Buyer does not construct the Project on the Property within a certain period of time, as described in more detail in Article \/Il below. Section 4.2 Review and Approval of Condition of Title. Within five business days after the Effective Date, Buyer shall cause Title Company to deliver toBuyer and to Seller u standard preliminary title noymt for the Property, together with legible copies of the documents underlying the exceptions set fhdb in the preliminary title report. Buyer ubuU have the right to reasonably approve or disapprove all exceptions. Buyer hereby approves the following exceptions which shall be referred to herein as the "Pre-Approved Exceptions": (o) the lien of any non-delinquent property taxes and assessments (which, if any exist, shall be prorated by the Title Company o1C|nniog); and (b) ouscozco1m and dob1-of-vvayexceptions, including those that may be created by City's creation of a legal lot commiserate with the Property. Within thirty 8N days after the Effective Date, Buyer shall give written notice toSeller of Buyer's approval or disapproval of any of the 1b)e exceptions, except the Pre-Approved Exceptions. Buyer's tbi/orc to give *dt1uo disapproval of the exceptions vvdbio such time period sbuU he deemed Buyer's disapproval of the exceptions. If Buyer delivers notice of disapproval nf any exceptions, Seller shall have the right, but not the obligation, to uuuac any disapproved exceptions to be removed vvi1biu thirty (30) days after receiving such notice of disapproval (or until five(5) business days prior to Closing, if earlier than the expiration ofsuch thirty (30) day period) or provide aaournuoeo mn1iofbutVry to Boyer, in its sole discretion, that such exceptions will heremoved on or before the Closing. Failure to notify Buyer within such thirty (30) day (or nbnneh period shall be deemed 8cllnr`n election not to remove the disapproved exceptions. Seller's election or deemed election not to remove any disapproved exceptions abol1 not he a default under this Agreement. If Seller cannot or does not elect to remove any of the disapproved exceptions within such thirty (30) day (or shorter) period, Buyer shall have five (5) business days after the expiration of such thirty (3O) day (or shorter) period to either give Seller notice that Buyer elects, in its sole discretion, to proceed with the Closing, subject to the disapproved exceptions, or to give Seller notice that Buyer elects 10 terminate this Agreement, in vvbioh ounc neither party will have any further dgb1a or uhUgu1ioun under this Agreement other than those obligations vvbicb survive tecouiun1ioo hereof. The Pre-Approved Exceptions and other exceptions to title approved by Buyer no provided ben:iu are hereinafter OAK#4825-3884-0612 v910 referred to as the "Permitted Exceptiomm." Subiect to the Seller's representation and warranty in Section 3.1hn\ not to create any new title exceptions following the Effective Date without Buyer's vvrhtou approval, i[ any exceptions other than the Permitted Bz»cptinuo are reported by the Title Company after Buyer has approved the condition of title for the Property pursuant to the foregoing procedures, doou any such new exception oba/) he subject tothe same procedures for review and approval set forth above for the Permitted Exceptions. Section 4.3 Title Immorumme. Concurrently with recordation of the Grant Deed, the Title Company shall issue to Buyer such policy nf title insurance for the Property which o1 Buyer's option may be an ALTA extended coverage owner's policy ("Title Policy") as may be required by Buyer, and/or Buyer's /uodem or other institutions that may be providing financing for the Project, together with such endorsements as are reasonably requested hy Buyer and/or Buyer's lenders or other institutions, insuring that Buyer has evo\id fee ownership icdecoot in the Property, subject only to the Permitted Bzuep1iooa and o1boc cuoucobrunoeo expressly contemplated by this Agreement to be recorded at Closing. The premium for the Title Policy, plus any additional costs, including the cost of surveys, and any endorsements requested by Buyer shall hu paid hyBuyer. ARTICLE V Under n separate agreement, Seller sboU pay Keegan and Coppin Company, Inc. ("Seller's Broker") for its oorviooa as Seller's broker io this transaction. Seller's Broker shall ho responsible for additional broker's payments due tollo1oB3rnkur[)uo under useparate agreement hetv,ocu Bel|or`o Broker audlIcte|Broker[)ue, vvhiob agreement has been provided to all parties prior to the Effective Date. lf any person other than Seller's Broker orllote|Broker[Joebrings u o|oizu for o commission ocfinder's fee based upon any contact, dealings or communication with Buyer or Seller, tbou the party through vvbono such yor000 makes his or her c/ojou obu)l defend the other party ("Indemnified Party") from such claim, and shall indemnify the Indemnified Party and hold the Indemnified Party bucou|eoo from any and all uo:do, damages, c}uioon, liabilities or czpooues (including without limitation, rcu000nb|e attncuoyn` fees and disbursements) incurred by the Todcnuuificd Party in defending against the claim. The provisions of this 800tino 5.1 shall survive the Closing or other termination of this Agreement. ARTICLE VI CLOSING AND ESCROW Section 6.1 Escrow Instructions. Within ten ON days following the Effective Date of this Agreement, the parties shall open escrow and deposit an executed counterpart of this Agreement with First American Title Company ("TitleCumgaxy`), and this instrument shall serve ay the instructions to the Title Company aythe escrow holder for consummation of the purchase and sale contemplated hereby. Seller and Buyer agree to cxeuo10 such rcuoonuh)e nddbinuu| and supplementary escrow instructions as may be appropriate to enable the Title Company to comply with the terms of this OAK #4825-3884-0612 v911 Agreement; provided, however, that in the event nf any conflict between the provisions of this Agreement and any supplementary escrow instructions, the terms of this Agreement oba// Section 6.2 k6 means the consummation of the purchase and sale ofthe Property as described herein as evidenced by the performance by each party nf its obligations including the Title Company's recordation and delivery nfthe Grant Deed, delivery of the documents as set forth in this Agreement, Title Company's irrevocable and unconditional commitment to issue the Title Policy upon recordation of the Grant Deed, and the payment of the Purchase Price hyBuyer. (b) The Closing hereunder shall be held and delivery of all items tobcmade ut the Closing under the terms of this Agreement shall ho made ut the offices of the Title Company on the date which is within ten calendar days of completion of all conditions precedent to conveyance as set forth in Article 11, but in no event later than a date two years after the Effective Z>cde, as my be extended as provided herein ("Outside Closing Date"). Buyer may extend the Outside Closing Date no more than two times for a period of six months each upon deposit of $ 100,000.00 for each extension submitted to Title Company at least ten business days prior to the Outside Closing Date, as may be extended (each, an "Extension Payment"). The Extension Payment(s) shall constitute a payment for the extensions and be nonrefundable to Buyer and shall not accrue toward the Purchase Price. () &tor before the Closing, Seller mbuU deposit into escrow the following benuo: (8) Documentary transfer taxes and Seller's customary share ofthe normal prorations; (2) Documentation ofa credit towards the Purchase Price in the amount of the Good Faith Deposit; (3) the duly executed and acknowledged Grant Deed conveying the Property to Buyer; W0 oo executed affidavit pursuant to Section l445(b)CDof the Internal Revenue Code, and ouwhich Buyer io entitled torely, that Seller is not o^ person" within the meaning of Section l445(U/3\of the Internal Revenue Code; and /5\ au executed California 597-WCertificate. (b) Atnrbefore Closing, Buyer shall deposit into escrow the following donum: (1) an executed Preliminary Change of and OAK94825-3884-0612 v912 (2) funds necessary to close this tnuuoaudou' including the Purchase Price, adjusted bya credit towards the Purchase Price in the amount of the Good Faith Deposit any normal prnrotinua, the Title Policy premium, all escrow fees and recording charges, and all other closing costs. Seller and Buyer shall each deposit such other instruments as are reasonably required by the Title Company nr otherwise required to close the escrow and consummate the purchase and sale transaction in accordance with the terms hereof. Seller and Buyer hereby designate Title Company as the "Reporting Poroon" for the 1romaoctinu pursuant 10 Section 6045(e) of the lxdunonl }luvcmue Code and the regulations promulgated tburcoodec and agree to execute such documentation as is reasonably necessary to effectuate such designation. (u) Buyer shall be solely responsible for paying the following costs associated with the transfer of the Property: (D the premium for the Title Policy, including any oudoroenueu1o; (ii) all escrow fees and recording ubu,geo" (iii) I]uycr`o customary share ofother normal prorations; (iv) all other closing costs; and (v) all of Buyer's due diligence expenses. Seller obo|l he solely responsible for paying the following costs 00000iotod with the transfer of the Property: (i) documentary transfer taxes and (ii) Seller's customary share of normal pnoru1ioos. (d) Ad valorem taxes and ua000anueu1x levied, assessed or imposed on the Property for any period prior to the Closing, if any, shall be paid by Seller. Ad valorem taxes and uaueaannundo levied, uoouoomd or imposed oo the Property for the period after the Closing mbuU be paid hyBuyer. (e) The provisions nf this Section 6.3 shall survive the ARTICLE VII DEFAULT AND REMEDIES The failure hv any party tn perform any obligation under this Agreement or the [)ove|oyoueut Agreement, if the failure has continued for a period of thirty (30) days after the other party doouaudo iu writing that the defaulting party cure the failure, except for such longer period set forth in Section 7.3, shall hodeemed n default hereunder. lf, however, by its nature the failure cannot be cured within thirty (30) days, the defaulting party may have u longer period as is necessary to cure the failure, in any event not to exceed minty (60) days, provided, however, such extended cure period shall be conditioned upon the defaulting party promptly commencing to cure within the thirty (30) day period and thereafter diligently completing the cure. () Upon the occurrence ofun event of uncured default 6v Buyer, Seller, subject tothe terms nfthis Agreement, shall be entitled to retain the Good Faith Deposits om liquidated damages. OAK #4825 3884 06112 v9 13 (b) Upon the occurrence ofuu event of uncured default hv Seller, Buyer may either institute mu action for specific performance orother equitable relief to compel sale ofthe Property to Buyer ou the terms met fbob herein co Buyer may opt to terminate this Agreement by vvrlKeu notice to Seller in which case the Good Faith Deposits previously deposited into escrow by Buyer ybu}1 he immediately returned to Buyer upon unilateral demand iothe Tide Company orby Seller, if such amounts have previously been released toSeller. (d Except as otherwise provided herein, neither party shall ie entitled toany monetary damages, and each party hereby waives any and all rights 10 recover consequential m special damages arising directly or indirectly from a breach of this Agreement by the other party. PRIME 11 11!1111!11111 11111!1 !11111:11!1 11111, !11!1 1 (a) City shall have the additional right, at its option, to repurchase, reenter and take possession ofthe Property (or portion thereof) with all improvements thereon, if after conveyance of title tn the Property and prior to the issuance ofn certificate of occupancy for the Project, the Buyer: (8) Fails to oouzoucmco construction of the Hotel within three years of the Effective Date, subject to force ou 'eurc as defined in Section 8.20, as required by this Agreement and the Development Agreement, for aperiod of three months after written notice thereof from the City; or (2) Abandons or substantially suspends construction of the Hotel for u period of three months after written notice of such abandonment or suspension from the City, subject to force cu 'ourc oo defined iu Section 8.20. (b) Such right to repurchase, reenter and repossess, 1othe extent provided iu this }\groenuuct, obo1} be subordinate and subject to and be limited by and shall not duG:u1, render invalid or limit any mortgage, deed of trust or other security instrument permitted by this Agreement; oc any rights or interests provided in this Agreement for the protection of the bolder of such mortgages, deeds of trust or other security instruments. (o) To order to exercise the repurchase option net forth in Section 7.3/u\, City oba\| give Buyer notice of intent 10 exercise option and City and Boyer sbuD meet in good faith within 30 days to discuss potential resolution or amendments to this Agreement and the Development Agreement or Project appcovn1o,ifaypUuuh|e. If the parties are unable toreach resolution, City may provide Buyer with a notice to exercise option to repurchase and, within 240 days dhorcaDcr` may pay bo Buyer the Fair Market Value, as determined by Section 7.3(d)" and Buyer shall thereupon execute and deliver to City grant deeds transferring to City all of Buyer's interest iothe Property. In the event City exercises its repurchase option under this Section 7.3, such exercise shall constitute City's sole and exclusive remedy on account of any default of Buyer which gives rise tn City's repurchase option hereunder, except that the foregoing Uooko1ioo on remedies obmU not affect either party's indemnity obligations under this /\grcuzuou1. City may withdraw its notice to exercise option at any time prior to the transfer of the Property 1nCity. OAK #4825 3 884-0612 v9 14 WU Within 30 days u[ City's notice to repurchase, as set forth in Section 7.3(6, City and Buyer shall each appoint one independent commercial real estate appraiser, or designate au appraiser and appraisal 000up\otodiuLbeyastynmr,1oapyraiue1bevu|ueoftbs Property with the general plan land use designation and zoning in place as of the Effective Date. Buyer acknowledges that City may hire an appraiser and obtain an appraisal prior to exercising its option to repurchase and that such mpnxuioo/ may he used as City's appraisal under this Section 7.3(d). lf either City or Buyer fails to appoint or designate its appraiser within the prescribed time period, the single appraiser appointed shall determine the Fair Market Value of the Property. If both parties fail to appoint or designate appraisers within the prescribed time periods, then the Oro1 appraiser thereafter oe\notod by uymty obnU determine the Fair Market Value of the Property. Each party shall bear the cost of its own appraiser and the parties shall share equally the cost of the single appraiser, ifapplicable. The appraisers shall be real estate appraisers licensed in the State of California and have at least 10 consecutive years of experience in the appraisal of real property in Sonoma County. lf each party appoints nrdesignates an appraiser, such appraisers ubolL within 90 days after the appointment nfthe loo1 appraiser, complete orprovide, if already completed, their determinations of Fair Market Value and fbcuinb the same to City and Buyer. If the low valuation varies from the higher valuation by 5% of the low valuation or less, the Fair Market Value shall be the average of the two valuations. If the lnvv valuation varies from the high vu1on1iou by more than 596, the two appraisers shall, within 30 days after submission of the last appraisal, appoint a third appraiser who shall meet the qualifications set forth in this Section 7.3. lf the two appraisers are unable to agree outhe selection of a third appraiser in a timely manner, then either City or Buyer may request such appointment by the presiding judge of the Superior Court of Sonoma County. The third appraiser, however selected, shall be u person who has not previously acted in any capacity for or against either party. Such third appraiser obn]L vvbbiu 90 days after appointment, make u determination of Fair Market Value and said third appraiser obul| select the opinion of Fair Market Value as determined by the one appraisal determination, completed by the two appraisers, which most closely matches the third upyroiocr`n opinion of Fair Market Value. The Fair Market Value of the Property shall ho the Fair Market Value selected by said third appraiser. All teca and costs of the third appraiser in connection with the determination of Fair Market Value shall bs paid one-half by City and one-half hYBuyer. () City's rights under this Section 7.3 shall survive the Closing and shall terminate upon the issuance of a certificate of occupancy by Buyer for the Hotel. 10 1611 D] Section 8.1 Notices, Any unduex required or permitted to be given hereunder shall be given in writing and obo| be delivered (a) by uoddficd ouoii postage prepaid, return receipt requested, or (b) by a commercial overnight courier that guarantees next day delivery and provides e receipt, and such notices shall be addressed as follows: OAK #4825-3894 .0612 v9 15 To Seller: City of Rohnert Park 130 Avram Avenue Rohnert Park, California 94608-3517 Attention: City Manager With a copy to: Burke Williams & Sorensen, LLP 1901 Harrison Street, 9th Floor Oakland, California 94612 Attention: Michelle Marchetta Kenyon To 356 Advisors, Inc.: 356 Advisors, Inc. 3757 Falcon Ave. Long Beach, CA 90807 Attention: Bruce Orr To MJW MJW Investments, LLC Investments, LLC: 1278 Glenneyre Street, Suite 439 Laguna Beach, CA 92651 Attention: Matthew J. Waken With a copy to: Palmieri, Tyler, Wiener, Wilhelm & Waldron, LLP 2603 Main Street, Suite 1300 Irvine, CA 92614 Attention: Stephen A. Scheck, Esq. or to such other address as either party may from time to time specify in writing to the other party. Any notice shall be effective only upon delivery or refusal to accept delivery by the intended recipient. vection 8.2 Assignments; Successors and Assigns. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party, except that Buyer may assign its rights and obligations to an affiliate or subsidiary wholly controlled by all Buyer parties. Subject to the provisions of this Section 8.2, this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. No assignment shall release the assigning party from its obligations or liabilities hereunder accruing prior to the date of such assignment. Uzzi ffla-4 1 1 Prior to the Effective Date, Seller has provided, and after the Effective Date shall continue to provide, Buyer with reasonable access to the Property and the records of Seller OAK #4825 - 3893&._0612 v916 relating thereto. Without limiting the foregoing, prior to any entry to perform any invasive on- site testing, Buyer shall give Seller written notice thereof, including the identity o[ the company or persons who will perform such testing and the proposed scope of the testing. 3u|&z or its representative may he present to observe any testing r or not invasive) or other inspection performed on the Property. Buyer shall maintain, and shall assure that its ountcuu{oro onuiotoio public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Buyer and its agents, employees or contractors, arising out of any ordcy or inspections o[ the Property pursuant tnthe provisions boo:ot and Buyer shall provide Seller with evidence of such insurance coverage upon request hy Seller. Buyer xhu\| indemnify and hold Seller harmless from and against any costs, damages, UohiUdoo, losses, expenses, liens or claims (including, vvidboot limitation, reuoouuh)c attorney's fees), arising out ofor relating to any entry on the Property by Buyer, its agents, employees or contractors in the course of performing the inspections, 1eatingn or inquiries provided for in this /\grooroen1. Buyer agrees to keep the Property free from any liens arising out nf any work performed, nuu1eriu|a furnished or nh|igu1iouu incurred hyorno behalf of Buyer orBuyer's agents, eozp|oyocn or contractors with respect to any inspection or investigation ofthe Property. }f any such lien o1 any time shall hu filed, Buyer ubuU oouoo the same to be discharged of record within ten (10) days thereafter by satisfying the same or, if Buyer, in its discretion and in good faith determines that such lien should he contested, by recording u bond or providing tide insurance ioauduO over such lien. Failure by Buyer 10 discharge orbond over nr provide title insurance over such lien shall be m nna1odu| brcoub of this /\greenuto1 and 8oDor may terminate this Agreement and pursue such other rights and remedies against Buyer as may he ovaUuh|o at 1om' or in equity. Buyer's indemnity obligations under this 3ecdnu 8.3 shall survive the Closing or other termination of this Agn:000001. Section 8.4 Governing Law. This Agreement shall be governed hv and construed in accordance with the kuvo of the State of California without regard to its choice of laws rules. Section 0.5 Interpretation of Each party has received independent legal advice from its attorneys with respect tothe advisability of executing this Agreement and the meaning ofthe provisions hereof The provisions of this Agreement shall he construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question. The article, section and other headings o[ this Agreement are for convenience of reference only and ohuU not he construed to affect the meaning of any provision contained herein. Where the context so requires, the use ofthe singular shall include the plural and vice versa and the use of the cuuouu|inu xbaU include the feminine and the neuter. The term ^^ponnn`^ abaU include any individual, partnership, joint venture, corporation, 1zuoi, unincorporated association, any other entity and any government orany department or agency thereof, whether acting iunnindividual, fiduciary or other capacity. The vvncda "include" and "including" nbaD in all instances he interpreted as though followed by the words "without limitation." OAK. �14825 '3894 0612 v917 Section 8.6 Amendments. This Agreement may be amended or modified only by a written instrument signed by Buyer and Seller and duly authorized by the City Council. Section 8.7 No Partnership. The relationship of the parties hereto is solely that of seller and buyer with respect to the Property and no joint venture, other partnership or agency relationship exists between the parties hereto. Neither party has any fiduciary relationship hereunder to the other. ,. The provisions of this Agreement are not intended to benefit any third parties. Section 8.9 Joint and Several Liability. The Seller acknowledges that Buyer consists of more than one entity which intends to form a limited liability company and that Buyer intends to have this Agreement assigned to such entity as provided in Section 8.2. Prior to such assignment, the liability of each Buyer Party shall be joint and several. Section 8.10 Limitation of Liability. Buyer acknowledges and agrees that no member, official or employee of Seller shall be personally liable to Buyer, or any successor in interest, in the event of any default or breach by City, or for any amount which may become due to Buyer or its successors, or on any obligations under the terms of this Agreement. Prior to Closing Buyer shall not record this Agreement, any memorandum of this Agreement, any assignment of this Agreement or any other document which would cause a cloud on the title to the Property. If Buyer fails to complete its purchase of the Property for any reason, or if this Agreement shall terminate for any reason not solely due to Seller's default hereunder, then Buyer, at no cost to Seller, shall promptly execute, acknowledge and deliver to Seller, all within thirty (30) days after written request from Seller, a quitclaim deed, in recordable form, in favor of Seller, and any other documents requested by Seller to remove any cloud on title to the Property that may exist as the result of the existence of this Agreement or any escrow relating to this Agreement. In the event Buyer fails to so execute and deliver any such document, Buyer shall pay all losses, damages, costs and expenses, including, but not limited to, Seller's reasonable attorneys' fees, incurred in connection with Buyer's breach of its obligations under this Section including interest, carrying costs associated with the Property from the date of Buyer's failure to comply with this Section and costs of clearing any such cloud on title. OAK #4825 3884-0612 v918 Section 8.12 Severability. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, to any extent shall be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and in no way shall be affected, impaired or invalidated thereby; except that if the court which determines the provision to be invalid also determines such provision to be of such materiality as to make enforcement of the remaining terms inequitable, then this Agreement shall terminate. Section 8.13 Waiver of Covenants, Conditions or Remedies. The waiver by one party of the performance of any covenant, condition or promise under this Agreement shall not invalidate this Agreement, nor shall it be considered a waiver by it of any other covenant, condition or promise under this Agreement. The waiver by either or both parties of the time for performing any act under this Agreement shall not constitute a waiver of the time for performing any other act or an identical act required to be performed at a later time. The exercise of any remedy provided in this Agreement shall not be a waiver of any consistent remedy provided by law, and the provision in this Agreement for any remedy shall not exclude other consistent remedies unless they are expressly excluded. I This Agreement may be terminated: (i) by Buyer, if prior to expiration of Buyer's Due Diligence Period, Buyer elects not to proceed with purchase of the Property; (ii) by Buyer, if prior to Closing, Buyer's Conditions Precedent to Conveyance have not been satisfied or waived; (iii) by Seller, if prior to Closing Seller's Conditions Precedent to Conveyance have not been satisfied or waived; or (iv) if there is an uncured default, by written notice from the party not in default. The party wishing to terminate the Agreement must provide the other party with written notice of termination. In the event of termination by Seller due to Buyer's failure to satisfy Seller's Conditions Precedent to Closing or Buyer's default, the Good Faith Deposits shall be retained by Seller as liquidated damages. Section 8.15 Cooperation in the Event of Third-Party Legal Challenge. Seller and Buyer shall cooperate in the event of any legal action instituted by a third party or other governmental entity or official challenging the validity of this Agreement. Should the challenge arise out of an uncured default by one of the parties; and to the extent that the defaulting party determines to contest such litigation challenge, the party in default shall indemnify and hold the other party harmless from and against any and all claims for recovery of the third party's litigation expenses, including attorney's fees. If the defaulting party elects, in its sole and absolute discretion, not to contest such litigation challenges, then the other party shall have no obligation to contest such challenges. Both Parties obligations under this Section 8.15 shall survive the Closing or other termination of this Agreement. OAK #4825...38R4 ..0612 v919 Section 8.16 Time. Time is of the essence in the performance of each of the parties' respective obligations contained herein. This Agreement, including the Exhibits hereto, contains all representations, warranties and covenants made by Buyer and Seller and constitutes the entire understanding between the parties hereto with respect to the subject matter hereof.. Any prior correspondence, memoranda or agreements are replaced in total by this Agreement together with the Exhibits hereto. Section 8.18 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Section 8.19 Exhibits. All exhibits to which reference is made in this Agreement are deemed incorporated in this Agreement. Section 8.20 Force Majeure. A force majeure event shall mean delay that a party could not reasonably have been expected to avoid and which by exercise of due diligence have been unable to overcome caused by: acts of God, war, fire, earthquake, windstorm, flood or other natural catastrophe, civil disturbance or disobedience, labor disputes, vandalism, sabotage, terrorism, or restraint by order of a court or administrative agency with jurisdiction. A party's financial inability to perform or obtain financing or adverse economic conditions generally shall not be grounds for claiming a force majeure event. [SIGNATURES ON FOLLOWING PAGE] ODAK #4825 - 884 -0672 v920 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date. sw�� Dated: , 2015 By: Eyffulm M L-In 11221 Dated: 12015 By: Name: Bruce Orr Its: President Dated: 2015 0A.K#4825-3884.-M2 vM MJW INVESTMENTS, LLC, a California limited liability corporation By: Name: Matthew J. Waken .................... . . . . . ...... . . . . . . . . . . . . ........ ....... . .... ''II.IlIl-111,111,11,'ll""I'll""I'll",I --------- . . . . .................... . Its: Managing Member 1,E(JAI, DI'SCRIPTION 01"I'llF PROPERTY The land referred to herein is situated in the State of California, County of Sonoma, City hnert Park and described as follo I `o Lot 1, as shown upon that certain Parcel Map entitled "Parcel Map No. 180", filed for record Wecember 11, 2009, in Book 736 of Maps, at Pages 30, 31 and 32 Sonoma County Records-- excluding the southerly three acres • said Lot 1. NITIONININKIMMKI EXHIBIT A 4' AK. #482.5.. - 3884 -0611 2 v9 Development (DA") between the City ofRnbued Park y�Cit«" and 356 Advisors, Inc. and MJW Investments, ULC (together the ^Bmyer) concerning the development of certain real property consisting of 12.25 acres and located at Labath Avenue and Carlson Avenue iu the City ofIlobuud Park (''D`ropmrtv") l. . The purpose o[ the D/\ioto set fhdb(a) Buyer's vested rights 10 develop and construct an up to 300-room select service and/or suite hotel(s) with a separate retail and/or other commercial or office oocoponcu1 in addition to the hotel (the "Project") in accordance with the general plan, land use designation and zoning in place uaof the date ofthe /\grronucrd" (b) Buyer's obligations to phase the Project to ensure the hotel is constructed prior tn or simultaneously vvithrctaU/onoaoucroiu\ development, and (c) Buyer's obligation to construct and/or fund certain required public inuproYenoccda. 2. Isrou. The term would bc OYu yoo;m oonunueuoiog on the effective date of the DA, with one possible two-year extension, which may ho approved in City's reasonable discretion if Buyer has made progress toward constructing the Project. 3. Developincra. The Project vvno)dhedcvoloyediooccocdauoevvhbUhogcusruly)mn dcaigun1inu and zoning currently in place and the following approvals 10 be obtained bythe Buyer concurrently with approval of the DA: (u) Conditional Use Permit; and (h) Site Plan and Architectural Review (the "Project A9provmUa"). The permitted uses, density and intensity of development and maximum height and size of proposed buildings shall all be in accordance with the Project Aoprovo/o, including any mutually agreed upon amendments. 4. . Buyer would uAcce to certain milestones for development as follows: (u) Buyer would obtain o building permit Lo construct the bntn) prior to, or in concurrence with, issuance of a building permit for any other development on the Property and onounuroce construction of the Hotel no later than three years from the Effective IJutc of the Purchase and Sale Agreement for the Buyer's yurubuoc of the Property, subject to force ou 'eorn as defined in Section 8.20 of the Purchase and Sale Agreement; and (b) Buyer would complete construction o[ the hotel and obtain u certificate of occupancy within 18 months of commencement of construction, subject to force majeure uo defined in 3rclino 8.2Oof the Purchase and Sale Agreement. 5. CEQA. Buyer will comply with all noidgo1iou coounurem in the Stadium Area Master Plan EDl and Mitigation Monitoring and Reporting Plan (MMRP). Buyer shall comply with all additional mitigation measures imposed asa result nf the Project-level CB()Aproueon. 6. . City would grant Buyer the vested right to develop and construct the Project, in accordance with the City general plan and zoning in place an of the effective date and the Project Approvals, except for: EXBrB[[B-1 OAK #4825-3884 W2 v9 (a) New City laws and regulations regarding procedural matters, such as hearing bodies, appeals and applications, provided such laws and regulations are uniformly applied on a city -wide basis to all substantially similar types of development projects and properties; (b) New City laws and regulations that revise the City's uniform construction codes, and that are in effect at the time of permitting, provided such laws and regulations are uniformly applied on a city -wide basis to all substantially similar types of development projects and properties; (c) New City laws and regulations that are necessary to protect physical health and safety of the public or do not conflict with the DA or Project Approvals, provided such laws and regulations are uniformly applied on a city -wide basis to all substantially similar types of development projects and properties; and (d) Changes to the law mandated by State or Federal Law, as provided in Government Code section 65869.5. 7. 13cllefits lam City. (a) Buyer would agree to construct to City standards and specifications and /or dedicate the following improvements for public use within the noted time - frames: (i) Final 1/3 of Carlson Avenue improvements, including curb, gutter, sidewalk and 16 -foot wide of travelway to provide an ultimate curb -to -curb width of 48 feet, prior to occupancy of first development project; (ii) Sidewalk along Dowdell Avenue frontage, prior to occupancy of first development project; (iii) Labath Avenue northbound right -turn lane at Martin Avenue widening and improvements (or as determined by a traffic study), prior to occupancy of first development project; (iv) Storm drain outfall into Hinebaugh Creek (design, permitting, and construction), as shown on the Stadium Lands approved tentative map, prior to occupancy of first development project; (v) 12 -inch water main in Redwood Drive between Hinebaugh Creek PRV vault to Martin Avenue, prior to occupancy of first development project. (vi) Site irrigation connected to existing recycled water system within Labath Avenue and /or Dowdell Avenue at a date to be determined. (b) Buyer would contribute its proportionate share, based on anticipated water usage by the Project, estimated cost of $110,000, toward a water storage tank located on the west side of the City prior to issuance of first building permit. LAI111BIT B 2 OAK. #4825...3884 ...0612 v4 (c) Buyer would enter into u Storm Water Maintenance Agreement to address long- term maintenance ofon-site storm drainage and water quality features within the City. The Storm Water Maintenance Agreement shall include funding maintenance of any off-site storm drainage improvements required and installed with the development. 8. ` Assessments. kA . Buyer would pay bnpuoi fees in place a1 the time the Development Agreement is executed, at the rate then in effect as shall be increased based upon the Construction Cost Index from the Engineering News Report. (b) . City could impose and Buyer would pay any new, increased nr modified taxes or assessments, provided such taxes or assessments are equally applied on a city-wide basis and have a uniform effect on a broadly-based class of land, projects or taxpayers, na applicable, within the City. (c) . Buyer would pay all reasonable processing fees imposed hy the City tn cover the actual costs to City o{ processing applications for the Project Approvals, as such fees are uniformly applied, at the rate in effect at the time of application. Buyer would also pay all reasonable, out-of-pocket costs of City of engaging third-parties consultants as City may deem reasonably necessary to process such applications. (d) . Buyer will have uo obligations under the CL)STC0 Reimbursement Agreement ua City will provide funding from the proceeds of the sale nfthe Property. Buyer shall pay the developer nfthe Reserves site the amount of$62,995,uo set forth iu the Reimbursement Agreement for the Reserves project, and provide City with proof of payment prior toor,d issuance ofthe first building permit n, grading permit for the Project. Buyer shall also pay Redwood Equities Investments the amount of $83,585.35, as determined by the Reimbursement Agreement for the 81udiunu l~oudo Master Plan Environmental Impact Report and provide City with proof of payment prior to or at issuance of the first building permit or grading permit for the Project. 9. General Provisions. (a) . E��of the Buyer pn�iem�mldho'oiot��d severally bnb)ounder the teruza of the uulcma and nutU the DA is assigned to a single party. (b) . Assignments of Buyer's rights and obligations under the D/\would be subject to City's review and approval, in City's reasonable discretion which will not bo unreasonably withheld. Any assignment, other than rc000nuh|u financing requirements, would be documented by an assignment and assumption agreement in a form reasonably acceptable to City. kJ The DAwould include standard provisions for notice of default and opportunity tocure. ln the event nf default hy City, the only remedy would be specific performance of the terms and provisions of the DA. lu event of default hy Buyer, the primary remedy would be specific performance of the terms and provisions of the [}A and the City's right tn repurchase the Property. /\ o|uizo for uo1uu| ouuumiury damages would only be �� OAK #482.5-3884-0612 v9 considered if specific performance is not granted by a court. In no event would either party be entitled to any consequential, punitive or special damages. City and Buyer would be required to follow the procedures set forth in Government Code sections 65867 and 65868, with a hearing before the City Council, prior to termination of the DA. In the event of termination, the only surviving provisions would be the Buyer's indemnification of City. A default under the Development Agreement would also be a default under the Purchase and Sale Agreement, by which the Property is transferred, and a default under the Purchase and Sale Agreement would also be a default under the Development Agreement. (d) Mtid nj ty,. Buyer would defend, indemnify and hold harmless the City, with legal counsel reasonably acceptable to the City Attorney, in any action brought by a third party to challenge the DA, including the related environmental review. In addition, Buyer would defend, indemnify and hold harmless the City for any claims arising out of the development and construction of the Project. (e) Aqntu l Review. Buyer would provide City with annual written documentation demonstrating good faith compliance with the terms of the Development Agreement. If the City determines that Buyer has not complied in good faith, the Buyer shall have 30 days from written notice of default to cure the default, otherwise the City may terminate the DA in accordance with Government Code section 65865.1. (f) _Application A roval. City's signature on planning applications as property owner shall not grant approval of applications. City retains its full discretionary authority regarding approval of planning and other land use approvals regardless of signature by City as property owner on such applications. OAK #4825- 3884 0612 v9 W�� f RECORDING REQUESTED By Title Insurance Company AND WHEN RECORDED MAIL To: Attention: (Space Above This Line for^ Recorder's Use Only) [Exempt from recording fee per Gov. Code § 27383] GRANT DEED (INCLUDING RIGHT TO REPURCHASE) The CITY OF ROHNERT PARK, a California municipal corporation ("Grantor"), hereby grants to 356 ADVISORS, INC., a California corporation, and MJW INVESTMENTS, LLC, a California limited liability corporation (collectively, "Grantee"), all of Grantor's right, title, and interest in the real property described in Attachinept I attached hereto and incorporated herein ("Property"). Subject to the provisions of Section 7.3 of an Agreement for Purchase and Sale and Terms of Development, between Grantor and Grantee, dated as of ("Agreement"), the Grantor shall have the right, at its option, to repurchase, reenter and take' possession of the Property in accordance with the terms of the Agreement. City of Rohnert Park Dated: 201 By: [FORM —Do NOT EXECUTE] Mayor [signature must be notarized] M. OAK #4825-3884-0612 v9 City Clerk M. r.WAN EXHIBIT C-2 OAK #4825 3884 OM 2 v9 A notary public or other officer completing this certificate verifies only the identity of the certificate is attached, and not the truthfulness, accuracy, • validity of that document. State of California SS County of On , before in (Name of Notary) notary public, personally appeared -- . ....... ............................. ............ ------- . . . . . ................................. who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that ths foregoing paragraph is true and correct. WIMM 70010= ACKNOWLEDGMENT OAK #4825 3884 0612 v9 ATTACHMENT 1 - EXHIBIT C ATTACHMENT I - EXHIBIT C OAK #48).5...388 -06 & 2 v9 Im ATTACHMENT 3 Luxury Upper Upscale cant. Upper Midscale 21 AKA 990 IMlarrloft 86 Ayres 711 Andaz 992 Marriott Conference Center 11.42 Aqua Hotels & Reswri 1086 BeIrriond 1045 Millennium 133 Best Western Plus 295 Conrad 1.080 Ornnr 183 Boarders Inn & Suites 369 Dorchester Collection 1091 Pan Pacific I lori Group 246 Cenfersione, Hotels 490 Fakirrionit 1 118 3 Radisson Blu 216 Chase Suites 510 Fcs,jr Season s 1.220 Renaissance 230 Clarion 761 Girand I yakt 11360 Sheraton I iolet 263 Cobblestones 800 InlerConfinentaf 1430 Soneslta Hotel 280 Corniort Inn 991 JW Marriott 1.445 Siraribotels 282 Comforl Suites 862 Langharn 11498 EvArissorel 306 Counfiry trin & Suliles 930 II oews 1670 WarwI(.,.k Hotets 290 Douldletree Club 945 Luxury Collecilon 1680 Westin 400 Drury Inn 965 Mandarin Oriental 1710 Wyndham 402 Drury Inn & Surfes 1046 Marriage 1. l 7 Budgetel 4 03 Drury Lodge 1.092 Palace Resorts 312 Crestwood Sultes lot liruly lllar,i I loiell 759 Park Hyatt Upscale 404 Drury Suites l 560 RRz CarlRon 6 aloft Hotel 485 1 airflodd lnn 11283 RockResorle 111 Ascend Colifyftion 545 Golden 11.aVOp 1.296 Rosemead 87 Aston Holrel 610 Haropion Inn 730 Sofifel 134 Best Western Premier 611 r lampton Inn & Suites 11325 & Regis 207 Cambria Suites 680 Holiday Inn 1500 Pal 209 C.anad Inin 68,3 Holiday Inn Express 1118 the Peninsula 235 Club Med 709 Horne,2 Sures by I-IlRon 11107 ilrompson liolkak 265 Coast f lotels & Resorts lJSA 706 Isle of Gap6 11605 1 rurnp Hotel Cokection 308 Courtyard 846 Larkspur Lending 1.642 Vlcoroy 330 Crowne Plaza 900 , exIngtorr 1646 W Hotel 368 Disney Hotels 1965 Night Hotels 1652 Waldorf=-Astoria 380 Double free li082 011 IANA 423 elenierilt 1094 Park Inn Upper Upscale 508 Four Points 1125 Phoenix Inn 55 Ace I total 910 Grand America Y202 Raerada Plaza 114 Affinia 561 Great Wolf Lodge 11256 Rest Inn 17 Autograph Cofection 309 Hilton Garden Inn 1407 Silver (.1oud 249 Chris Quarters 685 Homewood Suites 1436 Sonesira ES Suites 11536 Curio Collection . . . . . . . ... 702 Hotel hJigo 1623 lityls by Wyndharn 355 Delta 753 1 iyalli: House: 1595 RcAtnePlacp Suites 365 Dolce 762 1 iyatt Place 1350 Westioratk 392 Dream I iotph 213 Legacy Vacafion Club 1710:) Wyndarin Garden Hotell A -) 1 11 � 1, 1015 Melia 90 Xanterra Midscale cant. in aSSY IJ eS 40 cHhol I odge 5'29 Gaylord 720 Novotel 638 1 iard Rock 869 NYLO I i0tel 670 Hilton If 90 OuIrlp er ,.j? 760 Hiraft 1180 Radisson 931 I iyatt Regency 1270 ResIdence Irin 803 Joie De Vivre 1484 Shell Vacirions Club 845 Kimpton 1438 Springhill Suites 1020 [.a Merldien 1447 SU.iyldrldgc Suites Midscale cant. Economy cant. 40 cHhol I odge 832 Key Weer Inn 195 Candlewood Suites 840 Knighia Inn 240 Clr.uIbl touse 11000 MaFteir Flosis Inn 320 Crossings by GrandSlray 1005 Masters Inn 334 Crystal Inn 1030 Micratel Inn & Surl by Wyndharn 1244 Faifflricl& Inn 11060 Motel 6 557 GrandSlray Residentral Surres 11065 Naflonat 9 644 Haw thorn Suites by Wyndharn 1111.0 Passport Inn 790 InnSuites Hotel I t 15 Pear free Inn 865 Lakeviow DIshrichve Hotels 1235 Red Carpet Inn 882 1 a Quinta inn & Suites 1250 Red Roof firn 955 MainSfay Sulles 1290 R ocieway Inn 1033 Oak Iree Inn 1322 Savannah Suites 11160 Qualify Inn 1:1345 Scottish Inn 1200 Rarinada 11347 Select Inn 1240 Red Lion 1456 Sl"clo 6 7.281 Rode lnn 1457 Subisiban Fxiended Stay 1354 Seftle Inn 11463 Sun Suites Hotels 1380 Stills Inn 1470 Super 8 1423 Sleep Inn 1615 Travelodge ,31pond Inn 1630 Vag, 1632 Value Place 1641 Vista 1725 Yotel 16817 Wingate by Wyndham Economy 33 Affordable Suites of Arnerica 110 America's (hest Inn 1120 Americas Bear Value Inn I bO Budq.. +el 11 los� 163 [.1udp_Pt Suilas of Arnerice 1. l 7 Budgetel 305 Counilry I ieartlb Inn 312 Crestwood Sultes 317 Crossland Suftes 350 Days hn 390 Downi Inn 440 Econo Lodge 4R3 Extended Stay Arnerica 410 l: Z 8 500 11: arnily Inn', of America Midscale 548 Good Nite Inn 11950 3 Palms I lofels & Resorts 560 Girear Western 42 A Victory I iotels 575 Guestiouse Inn t 115 America's Be sr Sures 659 Name lu.NneSli 60 ArnericInn 740 Howard Johnson ISO Baymont Inn & Suftes 795 In t own Suites 130 Rest Western 822 Jameson Irrn 31,jimN,Cli,uin 3 ,balled by Chwfii Scal(, on Ili e Iara.vinuP, , venial sy,loiai vvklc (Ijohal) A%(,, I ),.Iry R I(1 1,11 li, (,s defil ii[�; o, (" U, 1111 3 , de mr, dvlerai,ii,d by it R I,k " I P Uhl)J I li,. 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