2016/09/13 City Council Resolution 2016-89RESOLUTION NO. 2016-89
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
APPROVING A PUBLIC IMPROVEMENT AND PUBLIC FACILITIES FEE CREDIT
AGREEMENT AND TWO PUBLIC IMPROVEMENT AGREEMENTS WITH PENN
GROVE MOUNTAIN LLC AND FINDING THIS ACTION COVERED UNDER THE
ENVIRONMENTAL IMPACT REPORT FOR THE SOUTHEAST SPECIFIC PLAN
WHEREAS, on December 7, 2010, the City Council of the City of Rohnert adopted
Resolution No 2010-134 approving the Final Environmental Impact Report (EIR) for the
Southeast Specific Plan; and
WHEREAS, on November 25, 2014, the City Council of the City of Rohnert Park
adopted Resolution No. 2014-165 approving an amended Final Development Plan for the
Southeast Specific Plan Area; and
WHEREAS, on November 25, 2014, the City Council of the City of Rohnert Park
adopted Resolution 2014-166 the Tentative Map for the Southeast Specific Plan Area prepared
by Civil Design Consultants (the "Tentative Map"), subject to certain conditions of approval
("Conditions"); and
WHEREAS, on December 7, 2010, the City Council of the City of Rohnert Park adopted
Ordinance No. 832, approving a Development Agreement ("Development Agreement") between
the City of Rohnert Park and Redwood Equities LLC ; and
WHEREAS, on December 9, 2014, the City Council of the City of Rohnert Park
adopted Ordinance No. 882, approving an amendment to the Development Agreement
("Development Agreement") between the City of Rohnert Park and the Redwood Equities LLC;
and
WHEREAS, in accordance with Development Agreement, Redwood Equities LLC has
assigned the Development Agreement to Penn Grove Mountain LLC ("Developer") an entity
under- common control with Redwood Equities LLC; and
WHEREAS, the Developer intends to file the Final Map for Phase 1 of the Southeast
Estates Subdivision, consisting of 105 residential lots and six parcels; and
WHEREAS, the Development Agreement and the Conditions of Approval include
requirements for Developer to construct the following improvements in conjunction with the first
Final Map filed for the its property:
All in -tract improvements within the first final map area including streets, storm
drainage, water, sewer, recycled water, joint trench and streetlighting, in -tract
landscaping, Valley House Drive and Bodway Avenue sidewalk and landscape
improvements, and a stormwater basin, together with the offsite improvements
necessary to support the first phase of development (in -tract and off-site
improvements)
2. A 360,000 gallon water tank which will serve the development
3. The 5.8 acre Willow Glen Park.
WHEREAS, the Developer has previously entered into an Improvement Agreement to
construct a portion of the in -tract and offsite improvements known as the "Model Home
Improvement Agreement; and
WHEREAS, the Developer has submitted plans and specifications for the in -tract and
off-site improvements, the water tank and Willow Glen Park ("Improvement Plans") which have
been reviewed by the City Engineer and determined to be technically accurate and in
conformance with the Conditions of Approval, and which collectively include all required
improvements not included in prior improvement agreement; and
WHEREAS, the planned off-site recycled water improvements are eligible for Public
Facilities Fee credits in the amount of Four Hundred Thousand One Hundred Eighty Two
Dollars and No Cents ($400,182); and
WHEREAS, the Developer has posted performance and labor and materials bonds in the
following amounts to cover the cost of improvements:
1. Phase 1 Valley House Drive Improvements — Two Hundred Thirty Four Thousand Three
Hundred Seventy Five Dollars and No Cents ($234,375.00)
2. Phase 1 Camino Colegio Improvements — Four Hundred Thousand One Hundred Eighty
Two Dollars and No Cents ($400,182.00)
3. Phase 1 Bodway Parkway Improvements — Five Hundred Eighty Five Thousand Seven
Hundred Sixty Three Dollars and No Cents ($585,763.00)
4. Phase 1 In -Tract Improvements — Four Million Nine Hundred Fifty Seven Thousand Six
Hundred Sixty Seven Dollars and No Cents ($4,957,667.00).
5. Southeast Specific Plan Water Tank: One Million Nine Hundred Ninety Seven Thousand
Two Hundred Five Dollars and No Cents ($1,997,205.00)
6. Willow Glen Park: Seven Hundred Eleven Thousand Eight Hundred and Seventeen
Dollars and No Cents ($711,817.00).
WHEREAS, the City and Developer desire to enter into a Public Improvement and
Public Facilities Fee Credit Agreement for the Southeast Specific Plan In -Tract and Off-site
Improvements and Public Improvement Agreements for Southeast Specific Plan Water Tank and
Willow Glen Park to more thoroughly define the terms and conditions of the construction and
dedication obligations under the conditions of approval.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert
Park that it does hereby authorize and approve the Public Improvement and Public Facilities Fee
Credit Agreement for the Southeast Specific Plan In -Tract and Off-site Improvements and the
Public Improvement Agreements for Southeast Specific Plan Water Tank and Willow Glen Park
with Pei -in Grove Mountain LLC included as Exhibits A through C to this Resolution.
BE IT FUTHER RESOLVED that based on the evidence presented at the duly noticed
public meeting of September 13, 2016, the City Council of the City of Rohnert Park finds that
the public improvements and activities were adequately described and mitigated in the Southeast
Specific Plan EIR, and that no other CEQA analysis is warranted.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized and
directed to execute the Public Improvement and Public Facilities Fee Credit Agreement for the
(2)
2016-89
Southeast Specific Plan In -Tract and Off-site Improvements and the Public Improvement
Agreements for Southeast Specific Plan Water Tank and Willow Glen Park with Redwood
Equities LLC in substantially similar form to the agreements attached hereto and incorporated by
this reference as Exhibits A through C subject to minor modification by the City Manager or
City Attorney.
DULY AND REGULARLY ADOPTED this 13 day of September, 2016.
ATTEST:
'o'
City City Clerk
Attachments: Exhibits A, B and C
CITY OF ROHNERT PARK
AHANOTU: � CALLINANAc`e-fT STAFFORD:lry d MACKENZIE:� (ff- BELFORTE:I
AYES: ( ) NOES: ( ) ABSENT: ( C ) ABSTAIN: ( )
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2016-89
RECORDING REQUESTED BY ) Exhibit A to Resolution
AND WHEN RECORDED MAIL TO: )
)
City of Rohnert Park )
130 Avram Avenue )
Rohnert Park, California 94928-2486 )
Attention: City Clerk )
(Space Above This Line for Recorder's Use Only)
Exempt from recording fee per Gov. Code § 27383.
PUBLIC IMPROVEMENT AND PUBLIC FACILITIES FEE CREDIT AGREEMENT
BY AND BETWEEN THE CITY OF ROHNERT PARK AND PENN GROVE MOUNTAIN
INVESTMENTS LLC FOR SOUTHEAST SPECIFIC PLAN IN -TRACT AND OFF-SITE
IMPROVEMENTS
This Public Improvement and Public Facilities Fee Credit Agreement (the "Agreement") is made and
entered into on this day of 2016 (the "Effective Date") by and between Penn
Grove Mountain LLC, a California Limited Liability Company, ("Developer"), and the CITY OF
ROHNERT PARK, a California municipal corporation ("City"). City and Developer are sometimes
referred to hereinafter individually as "Party" and collectively as "Parties".
RECITALS
A. The Southeast Rohnert Park Specific Plan consists of an 80 -acre site located north of
Valley House Drive, west of Petaluma Hill Road, south of the Canon Manor Specific Plan Area, and east
of Bodway Parkway, identified by Sonoma County Assessor as parcel number 047-111-030, and
illustrated in Exhibit A, attached hereto and incorporated by this reference.
B. On November 25, 2014, the City Council of the City of Rohnert Park adopted Resolution
No. 2014-166, approving the Tentative Map for Southeast Rohnert Park, File No. PLSD2014-0008,
subject to certain conditions of approval (the "Conditions").
C. Developer intends to file the final map for Phase 1 consisting of 105 single-family
residential lots and six parcels.
D. The Conditions include the requirement for Developer to construct the following
improvements in conjunction with the first final map filed for the Southeast Specific Plan Area:
1. All in -tract improvements within the first final map area, including streets, storm
drainage, water, sewer, recycled water, joint trench and streetlighting, Valley House
Drive and Bodway Avenue sidewalk and landscaping, in -tract landscaping, and
stornwater basin
A 360,000 - gallon water storage tank within Phase 1
Willow Glen Park
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E. Developer has begun construction of a portion of the improvements, providing access to
model homes including a street loop of Waterside Way, Watson Way, and Wisdom Lane, along with
storm drain, water, recycled water, and sanitary sewer lines.
F. Developer has submitted plans, specifications and drawings for Willow Glen Park
(Improvements) consisting of:
• Southeast Rohnert Park Phase 1- WDID # 149C358481, , 2016,
prepared by Civil Design Consultants, 47 Sheets (Sheets 1 - 47) and approved by the City
Engineer on 12016
• Southeast Rohnert Park Site Retaining Walls, 2016 prepared by
O'Connor Freeman & Associates, 6 Sheets (Sheets SNI and 2, SI -3 and SD) and approved by the
City Engineer on , 2016
• Joint Trench Composite Plan of Southeast Rohnert Park Phase 1,
2016, prepared by Nor -Coast Utility Design Inc., 9 Sheets (Sheets 1 — 9) and approved
by the City Engineer on , 2016.
• A Neighborhood Park, Southeast Rohnert Park, Public Landscape Improvement
Plans, 2016, prepared by Landesign Group, 32 Sheets (Sheets L1 thru L32), and
approved by the City Engineer on 12016.
G. City and Developer desire to enter an agreement providing for the construction and
installation of the Improvements in accordance with the plans, specification and drawings described in
Recital F.
AGREEMENT
NOW, THEREFORE, in consideration of the faithful performance of the terms and
conditions set forth in this Agreement, the parties hereto agree as follows:
I . Incorporation of Recitals. The foregoing Recitals are true and correct and, together
with the Project Approvals and the requirements of Chapter 16.16 of the RPMC, are hereby
incorporated into and form a material part of this Agreement
Purpose and Effective Date
2.1 Propose. The purpose of this Agreement is to guarantee completion of the
Improvements and ensure satisfactory performance by Developer of Developer's obligations to satisfy the
Conditions and to provide for a credit to Developer for the construction of improvements to Rohnert Park
Expressway through a reduction in Public Facilities Fees collected from the Developer for the Project.
2.2 Effective Date. The Effective Date of this Agreement shall be as set forth above.
3. Property Subject to Agreement. The property which is the subject of this Agreement is
located in the City of Rohnert Park, Sonoma County, California, and is described in Exhibit A, attached
hereto (the "Property").
4. Improvements
4.1 Duty to Install Improvements. Developer will design, construct, install and
complete, or cause to be constructed, installed and completed, at the Developer's sole cost and expense,
the Improvements, in accordance with the Improvement Plans (defined in Recital F above) and to the
satisfaction of the City Engineer, in his/ her reasonable discretion. Developer will also supply all labor
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and materials therefor, all in strict accordance with the terns and conditions of this Agreement. The
construction, installation and completion of the Improvements including all labor and materials furnished
in connection therewith are hereinafter referred to collectively as the "Work."
City shall not be responsible or liable for the maintenance or care of the Improvements until City forinally
approves and accepts them in accordance with its policies and procedures. City shall exercise no control
over the Improvements until approved and accepted. Any use by any person of the Improvements, or any
portion thereof, shall be at the sole and exclusive risk of the Developer at all times prior to City's
acceptance of the Improvements. Developer shall maintain all the Improvements in a state of good repair
until they are completed by Developer and approved and accepted by City. Maintenance shall include, but
shall not be limited to, repair of pavement, curbs, gutters, sidewalks, signals, parkways, water mains, and
sewers; maintaining all landscaping in a vigorous and thriving condition reasonably acceptable to City;
removal of debris from sewers and storm drains; and sweeping, repairing, and maintaining in good and
safe condition all streets and street improvements. It shall be Developer's responsibility to initiate all
maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work when
notified to do so by City. If Developer fails to properly prosecute its maintenance obligation under this
section, City may do all work necessary for such maintenance and the cost thereof shall be the
responsibility of Developer and its surety under this Agreement. Prior to undertaking said maintenance
work, City agrees to notify Developer in writing of the deficiencies and the actions required to be taken
by the Developer to cure the deficiencies. Developer shall have thirty (30) days from the date of the
notice within which to correct, remedy or cure the deficiency. If the written notification states that the
problem is urgent and relates to the public health and safety, then the Developer shall have twenty-four
(24) hours to correct, remedy or cure the deficiency. City shall not be responsible or liable for any
damages or injury of any nature in any way related to or caused by the Improvements or their condition
prior to acceptance.
4.2. Completion Date. Developer will complete the Work within twenty four months
of the Effective Date or as required by the Development Agreement, whichever is sooner. All Work will
be completed in a good and workmanlike manner in accordance with accepted design and construction
practices. This completion date may be extended by the City in its sole and absolute discretion at the
request of Developer, which request shall be accompanied by a written assurance acceptable to the City
Attorney that the securities required by Section 5 shall remain enforceable throughout the tern of the
extension.
4.3. Estimated Cost of Work. The estimated cost of the Work is as follows:
• Phase 1 Valley House Drive Improvements — Two Hundred Thirty Four Thousand
Three Hundred Seventy Five Dollars and No Cents ($234,375.00)
• Phase 1 Camino Collegio Improvements — Four Hundred Thousand One Hundred
Eighty Two Dollars and No Cents ($400,182.00)
• Phase 1 Bodway Parkway Improvements — Five Hundred Eighty Five Thousand
Seven Hundred Sixty Three Dollars and No Cents ($585,763.00)
• Phase 1 In -Tract Improvements — Four Million Nine Hundred Fifty Seven Thousand
Six Hundred Sixty Seven Dollars and No Cents ($4,957,667.00).
Notwithstanding this estimate, Developer hereby acknowledges and agrees that (a) the
actual costs to complete the Work may significantly exceed this estimate, (b) this estimate in no way
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limits Developer's financial obligation, and (c) that Developer is obligated to complete the Work at its
own cost, expense, and liability.
4.4. Modifications to the Plans. Approval of this Agreement by City does not release
Developer of its responsibility to correct mistakes, errors or omissions in the Improvement Plans. If, at
any time, in the opinion of the City Engineer, in his/her reasonable discretion, the Improvement Plans are
deemed inadequate in any respect Developer agrees to make such modifications, changes or revisions as
necessary in order to complete the Work in a good and workmanlike manner in accordance with accepted
design and construction standards.
4.5. Foreman or Superintendent. Developer shall give personal attention to the Work.
A competent foreman or superintendent, satisfactory to the City Engineer, in his/her reasonable
discretion, with authority to act for and on behalf of Developer, shall be named in writing by Developer
prior to commencement of the Work, shall be present on the Property during the performance of the
Work. Any change in the superintendent will require advance notification to the City Engineer and
concurrence of the City Engineer and the Engineer of Record for the Improvement Plans.
4.6. Encroachment Permits. Developer shall obtain, at its sole cost and expense, any
encroachment permits required by the City in order to perforin the Work. Developer shall also obtain any
encroachment permits, grading permits, or other permits required by the County of Sonoma for
construction of the improvements.
4.7. Inspection: All of the Improvements shall be constructed and installed to the
satisfaction of the City Engineer, in his or her reasonable discretion. City and its authorized agents shall,
at all times during the construction of the Improvements, have free access to the Improvements and shall
be allowed to examine and inspect the Improvements and all material used and to be used in the
Improvements to confirn compliance with City Plans and Specifications.
4.8. Commencement of Construction and Inspection. Developer and its contractor -
or subcontractors shall not commence construction of the Improvements until Developer has received
written authorization from City to proceed. Written authorization shall be in the form of signed
approved plans along with permit issuance, including any encroachment pernit required to cavy on
construction activities in the City's right-of-way as described in Section 4.6. All work perforned on
the Improvements shall be done in strict compliance with the City approved plans, specifications and
the contract documents and in a good and workmanlike manner. All work performed by Developer,
its contractor or agents to construct the Improvements shall be subject to inspection by City. All fees
and costs to construct the Improvements shall be borne solely by Developer (including the applicable
Inspection Fee in accordance with the City's adopted Engineering Fee Schedule). Inspection by City
or its employees or agents shall not relieve Developer of its liability for design defects or improper
or inadequate workmanship.
4.9. City's Inspection Administration and Testing Costs. Developer shall pay to City
the actual cost for all inspection, administration and testing services furnished by City in connection with
this Agreement, including those performed by consultants under contract with the City (the "City Costs").
City agrees not to double charge Developer (through the imposition of both a processing fee and a
consultant charge) for any individual monitoring, inspection, testing or evaluation service. In addition,
City agrees to limit its use of outside consultants to those reasonably necessary or desirable, as
determined by the City Manager or his designee in his reasonable discretion, to accomplish the requisite
inspection, administration and monitoring. The estimated cost for the inspection, administration and
testing services is Ninety One Thousand Seven Hundred Seventy Dollars and No Cents ($91,770.00) (the
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"Estimated Cost"). Concurrently with the execution of this Agreement, Developer shall deposit an amount
equal to the Estimated Cost with City for the payment of the City Costs. In the event that the Estimated
Cost is insufficient to cover the actual City Costs incurred, Developer shall, upon notice in writing by the
City Engineer, deposit such additional amount as may be required to pay the City Costs. Any amount of
the Estimated Cost, initial deposit or additional amounts deposited remaining after payment of all City
Costs will be returned to Developer. City may, at its discretion, deposit such funds in an interest-bearing
account and retain any and all interest earned.
4.10. No Waiver by City. Inspecting of the work and/or materials, or approval of work
and/or materials, or a statement by an officer, agent or employee of the City indicating the work complies
with this Agreement, or acceptance of all or any portion of the work and/or materials, or payments
thereof, or any combination of all of these acts shall not relieve Developer or its obligation to fulfill this
Agreement; nor is the City by these acts prohibited from bringing an action for damages arising from the
failure to comply with this Agreement.
4.11. Erosion Control. Pursuant to Rohnert Park Municipal Code Chapter 15.52,
Developer shall be responsible for the control of erosion on the Property and shall prevent its entry into
the storm drainage system.
4.12. Prevailing Wages. The Improvements constitute a "public work" as defined in
the California Labor Code, section 1771, et seq ("Labor Code Regulations"). Developer agrees to
defend, indemnify and hold City, its elected officials, officers, employees, and agents free and
harmless from any and all claims, damages, suits or actions arising out of or incident to
Developer's obligations under this section and the payment of prevailing wages. The Developer
must provide documentation that prevailing wages were paid for the work.
4.13. Contractor Licenses. All work performed on the Improvements shall be
done only by contractors licensed in the State of California and qualified to perform the type of
work required and comply with the City's Business License Ordinance.
4.14. Repair of Work Damaged During Construction. Developer agrees to repair or
have repaired in a timely manner at its sole cost and expense all public roads, streets, or other public or
private property damaged as a result of or incidental to the Work or in connection with the development
of the Property or to pay to the property owner of any damaged road, street or property the full cost of
such repair. In addition, Developer shall obtain the written acceptance of such repair or payment from any
owner whose private property was repaired by Developer or to whom Developer has paid the full cost of
such repair in accordance with this Section 4.14. City shall be under no obligation whatsoever to accept
the Work completed under this Agreement until such time as all repairs have been completed or have
been paid for and written acceptances have been provided to the City Engineer, except as otherwise
provided in section 4.18.1
4.15. Payments. Developer agrees that it will pay, when due, all those furnishing labor
or materials in connection with the Work. Developer further agrees that pursuant to Government Code
section 66499.7, the Labor and Materials Bond provided by Developer in accordance with Section 5.1.2
of this Agreement shall not be released if any mechanics liens or stop notices are outstanding, unless said
liens are released by bond in compliance with Civil Code section 3143.
4.16. Liability for Work Prior to Formal Acceptance. Until the City Council has
formally accepted the Improvements, Developer shall be solely responsible for all damage to the
work, regardless of cause, and for all damages or injuries to any person or property at the work
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site, except damage or injury due to the sole negligence of City, or its employees. Developer
shall replace or repair any portion of the Improvements that have been destroyed or damaged
prior to final acceptance of completed work by the City Council or the City Engineer. Any such
repair or replacement shall be to the satisfaction and subject to the approval of the City Engineer.
Developer shall repair to the satisfaction of the City Engineer any damage to the utilities systems,
concrete work, street paving or other public improvements that may occur in connection with the
Improvements work.
4.17. Completion of Work. After Developer (a) completes the Work in accordance
with the Improvement Plans and the terms and conditions of this 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, Developer will provide City with a written notice of completion, together with copies
of all written acceptances.
4.18. Final Acceptance.
4.18.1 Notice of Completion. Within thirty (30) days of receipt of Developer's
written notification pursuant to Section 4.17 above, 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/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/her reasonable discretion, if Developer
has made commercially reasonable efforts to obtain such acceptances. City Engineer's failure to respond
to Developer's written notification within thirty (30) days will not be deemed a breach or default under
this Agreement.
4.18.2 Acceptance of Improvements. After sending Developer a written notice
of satisfactory completion pursuant to Section 4.18.1, the City Engineer will recommend acceptance of
the Improvements, or a portion thereof, to the City Council. In conjunction with such recommendation,
the City Engineer will recommend the acceptance of the offers of dedication shown on the final map for
the Property. The acceptance of the Improvements, 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 of
acceptance, in a form to be approved by the City Attorney, in the Official Records of Sonoma County.
4.19. Warranty Period-, Repair and Reconstruction. Without limiting the foregoing,
Developer expressly warrants and guarantees all work performed under this Agreement and all materials
used in the Work for a period of one (1) year after the date of recordation of the notice of acceptance of
the improvements in accordance with Section 4.18. If, within this one (1) year period, any Improvement
or part of any Improvement installed or constructed, or caused to be installed or constructed by
Developer, or any of the work done under this Agreement, fails to fulfill any of the requirements of the
Improvement Plans or this Agreement, Developer shall, without delay and without cost to City, repair,
replace or reconstruct any defective or otherwise unsatisfactory part or parts of the Work or Improvement
to the satisfaction of the City Engineer. Should Developer fail to act promptly, by failing to repair, replace
or reconstruct work thirty (30) days after- notification by City, or in accordance with this requirement, or
should the exigencies of the situation require repairs, replacements or reconstruction to be made before
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Developer can be notified, City may, at its option, make the necessary repairs, replacements or perform
the necessary reconstruction and Developer shall pay to the City upon demand the actual cost of such
repairs, replacements or reconstruction.
4.20. Record Drawings. Upon completion of the Improvements and prior to final
acceptance by the City Council, Developer shall deliver to City one electronic file, in a format
specified by the City Engineer, and one mylar copy of "as -built" drawings. These drawings shall be
in a form acceptable to the City Engineer, shall be certified by an engineer licensed by the State of
California as to accuracy and completeness, and shall reflect the Improvements as actually
constructed, with any and all changes incorporated therein. Developer shall be solely responsible and
liable for ensuring the completeness and accuracy of the record drawings.
4.21. Ownership of Improvements. From and after acceptance of the
Improvements by formal action of the City Council, ownership of the Improvements shall be
vested exclusively in City.
Security.
5.1 Performance Labor and Materials and Warranty Security. In accordance with
Sections 16.16.060 through 16.16.070 of the Rohnert Park Municipal Code, 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 an irrevocable assignment of funds or letter of credit as may be acceptable to the City Attorney.
5.1.1 Performance Security. Developer shall furnish and deliver performance
security concurrently with the execution of this Agreement, which must meet the requirements of
Government Code Section 66499.1, if applicable, and Rohnert Park Municipal Code Section 16.16.070
and be acceptable to the City Attorney, in the amounts listed below:
• Phase 1 Valley House Drive Improvements — Two Hundred Thirty Four Thousand
Three Hundred Seventy Five Dollars and No Cents ($234,375.00)
• Phase 1 Camino Colegio Improvements — Four Hundred Thousand One Hundred
Eighty Two Dollars and No Cents ($400,182.00)
• Phase 1 Bodway Parkway Improvements — Five Hundred Eighty Five Thousand
Seven Hundred Sixty Three Dollars and No Cents ($585,763.00)
• Phase 1 In -Tract Improvements — Four Million Nine Hundred Fifty Seven Thousand
Six Hundred Sixty Seven Dollars and No Cents ($4,957,667.00).
The security shall be conditioned upon the faithful performance of this Agreement with respect to the
Work and shall be released by the City effective upon the date of recordation of the notice of acceptance
of the improvements as described in Section 4.18.2 and Developer's delivery of the Warranty Security
described in Section 5.1.3.
5.1.2 Labor and Materials Security. Developer shall furnish and deliver labor
and materials security concurrently with the execution of this Agreement which security must meet the
requirements of Government Code Section 66499.2, if applicable, and Rohnert Park Municipal Code
Section 16.16.070 and be acceptable to the City Attorney, in the amounts listed below:
III
• Phase I Valley House Drive Improvements — Two Hundred Thirty Four Thousand
Three Hundred Seventy Five Dollars and No Cents ($234,375.00)
• Phase 1 Camino Colegio Improvements — Four Hundred Thousand One Hundred
Eighty Two Dollars and No Cents ($400,182.00)
• Phase 1 Bodway Parkway Improvements — Five Hundred Eighty Five Thousand
Seven Hundred Sixty Three Dollars and No Cents ($585,763.00)
• Phase 1 In -Tract Improvements — Four Million Nine Hundred Fifty Seven Thousand
Six Hundred Sixty Seven Dollars and No Cents ($4,957,667.00).
The security shall secure payment to the contractor(s) and subcontractor(s) performing the Work and to
all persons furnishing labor, materials or equipment to them. The City shall retain each security until both
(i) the City accepts the Work in accordance with Section 4.18 above and (ii).the statute of limitations to
file an action under Civil Code section 3114 et seq. has expired. After said date, the security may be
reduced by the City Engineer to an amount not less than the total amount claimed by all claimants for
whom claims of lien have been recorded and notice given in writing to the City Council. The balance of
the security shall be retained until the final settlement of all such claims and obligations. If no such claims
have been recorded, the security shall be released in full by the City Engineer.
5.1.3. Warranty Security. Developer shall furnish and deliver warranty security
in the amount specified in section 16.16.070 c. of the Rohnert Park Municipal Code., upon acceptance of
the Improvements and prior to release of the Performance Security, in the amounts listed below:
• Phase 1 Valley House Drive Improvements — Thirty Five Thousand One Hundred
Fifty Six Dollars and No Cents ($35,156.00)
• Phase I Camino Colegio improvements — Sixty Thousand Twenty Seven Dollars and
No Cents ($60,027.00)
• Phase 1 Bodway Parkway Improvements — Eighty Seven Thousand Eight hundred
Sixty Five Dollars No Cents ($87,865.00)
• Phase I In -Trace Improvements — Seven Hundred Forty Three Thousand Six
Hundred Fifty Dollars and No Cents ($743,650.00).
The security shall be in a form acceptable to the City Attorney and shall guarantee and warranty the Work
for a period of one (1) year following the date of recordation of the notice of acceptance of the
improvements against any defective work or labor done, or defective materials furnished.
5.2. Additional Security. If either upon execution of this Agreement or during the
course of performance the City considers that it is necessary to have Developer post additional security,
the City may require either a cash deposit or a surety bond guaranteeing performance in a form and signed
by sureties satisfactory to it. The condition of the security shall be that if Developer fails to perform its
obligation under this Agreement, the City may in the case of a cash bond act for it using the proceeds or
in the case of a surety bond require the sureties to perform the obligations of the Agreement.
6. Indemnity and Insurance.
6.1 Indemnification. Developer agrees to indemnify, defend and hold the City, its
elective and appointed boards, commissions, officers, agents, employees and consultants, harmless from
and against any and all claims, liabilities, losses, damages or injuries of any kind (collectively, "Claims")
arising out of Developer's, or Developer's contractors', subcontractors', agents' or employees', acts,
omissions, or operations under this Agreement, including, but not limited to, the performance of the
Work, whether such acts, omissions, or operations are by Developer or any of Developer's contractors,
subcontractors, agents or employees, except to the extent such Claims are caused by the sole negligence
or willful misconduct of the City. This indemnification includes, without limitation, the payment of all
penalties, fines, judgments, awards, decrees, attorneys' fees, and related costs or expenses, and the
reimbursement of City, its elected officials, officers, employees, and/or agents for all legal expenses and
costs incurred by each of them.
The aforementioned indemnity shall apply regardless of whether or not City has prepared,
supplied or approved plans and/or specifications for the Work or Improvements and regardless of whether
any insurance required under this Agreement is applicable to any Claims. The City does not and shall not
waive any of its rights under this indemnity provision because of its acceptance of the bonds or insurance
required under the provisions of this Agreement. Developer's obligation to indemnify City shall survive
the expiration or termination of this Agreement.
Developer agrees to obtain executed indenmity agreements with provisions identical to those set
forth here in this section from each and every contractor and sub -contractor or any other person or entity
involved by, for, with or on behalf of Developer in the performance of this Agreement. In the event
Developer fails to obtain such indemnity obligations from others as required here, Developer agrees to be
fully responsible according to the terms of this section. Failure of City to monitor compliance with these
requirements imposes no additional obligations on City and will in no way act as a waiver of any rights
hereunder.
6.2. Insurance. Developer shall maintain Commercial General Liability Insurance
protecting the City from incidents as to bodily injury liability and property damage liability that may
occur- as a result of the Work and additional repairs. Developer shall provide certificate(s) of insurance
and endorsements to City before any Work commences. The insurance policy shall contain, or be
endorsed to contain, the following provisions:
(1) The City, its officers, elected officials, employees, consultants, agents and
volunteers are to be covered as additional insured's as respects to liability arising
out of activities performed by or on behalf of Developer. The coverage shall
contain no special limitations on the scope of protection afforded to the City, its
officers, elected officials, employees, consultants, agents and volunteers.
(2) The amounts of public liability and property damage coverage shall not be less
than $3,000,000 (Three Million Dollars) per occurrence for bodily injury,
personal injury and property damage.
(3) The insurance shall be maintained in full force until the work has been completed
to the satisfaction of the City Engineer.
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(4) The insurance policy shall provide for 30 days' notice of cancellation to the City.
The policy shall not be cancelled earlier than nor the amount of coverage be
reduced earlier than 30 days after the City receives notice from the insurer of the
intent of cancellation or reduction.
(5) Any failure to comply with the reporting provisions of the policy shall not affect
the coverage provided to the City, its officers, elected officials, employees,
consultants, agents and volunteers.
(6) Developer's insurance coverage shall be primary insurance as respects the City,
its officers, elected officials, employees, consultants, agents and volunteers. Any
insurance or self-insurance maintained by the City, its officers, elected officials,
employees, consultants, agents and volunteers shall be in excess of Developer's
insurance and shall not contribute to it.
(7) Any deductibles or self-insured retentions must be declared to and approved by
City. At the option of City, either: (a) the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects City, its elected officials,
officers, employees, agents, and volunteers; or (b) Developer and its contractors
shall provide a financial guarantee satisfactory to City guaranteeing payment of
losses and related investigation costs, claims, and administrative and defense
expenses.
(8) Developer and Developer's insurance company agree to waive all rights of
subrogation against City, its officers, elected officials, employees, agents and
volunteers for losses paid under Developer's workers' compensation insurance
policy which arise from the work performed by Developer.
Iii the event that Developer's insurance is cancelled, Developer shall provide replacement coverage or all
work must cease as of the cancellation date until replacement insurance coverage is provided.
6.3. Workers' Compensation Insurance. Developer shall provide, or cause to be
provided, Workers' Compensation insurance as required by law, and shall cause its contractors and their
subcontractors, agents and representatives to also maintain Workers' Compensation insurance as required
by law. No Work shall commence until such Workers' Compensation insurance is obtained and in full
force and effect.
6.4. Other Insurance Requirements. Developer shall:
(1) Prior to taking any actions under this Agreement, furnish City with properly
executed certificates of insurance which shall clearly evidence all insurance
required in this section and provide that such insurance shall not be canceled,
allowed to expire or be materially reduced in coverage except on thirty (30)
days prior written notice to City.
(2) Provide to City certified copies of endorsements and policies if requested by City,
and properly executed certificates of insurance evidencing the insurance required
herein.
(3) Replace or require the replacement of certificates, policies and endorsements for
any insurance required herein expiring prior to completion and acceptance of the
Improvements.
10
(4) Maintain all insurance required herein from the time of execution of this
Agreement until the acceptance of the Improvements.
(5) Place all insurance required herein with insurers licensed to do business in
California.
Breach of Agreement, Opportunity to Cure; Remedies.
7.1. Notice of Breach and Default. The occurrence of any of the following constitutes
a breach and default of this Agreement:
(1) Developer refuses or fails to complete the Work within the time set forth herein
or abandons the Work.
(2) Developer assigns the Agreement without the prior written consent of City.
(3) Developer is adjudged bankrupt or makes a general assignment for the benefit of
creditors, or a receiver is appointed in the event of Developer's insolvency.
(4) Developer or Developer's contractors, subcontractors, agents or employees, fail
to comply with any terms or conditions of this Agreement.
(5) Any delay in the construction of any portion of the Work or repairs, which in the
reasonable opinion of the City Engineer, endangers public or private property.
The City may serve written notice of breach and default upon Developer and the financial institution
holding the security.
7.2. Breach of Agreement-, Performance by City. If the City gives Developer notice,
under Section 7. 1, of breach and default of this Agreement, the City may proceed to complete the Work
by contract or other method the City considers advisable, at the sole expense of Developer. Developer,
immediately upon demand, shall pay the costs and charges related to the Work and any subsequent
repairs. City, without liability for doing so, may take possession of and utilize in completing the Work
and repairs, if any, such materials and other property belonging to Developer as may be on or about the
Property and necessary for completion of the work. In the event of default, the financial institution
holding the security shall be liable to City to pay the face amount of the bonds, as specified under Section
5.
7.3. Remedies. City may bring legal action to compel performance of this Agreement
and recover the costs of completing the Work and/or repairs, if any, including City's administrative and
legal costs. Developer agrees that if legal action is brought by City under this section of the Agreement,
Developer shall pay all of the costs of suit; reasonable attorney fees, arbitration costs and such other costs
as may be determined by the court or arbitrator. No failure on the part of City to exercise any right or
remedy hereunder shall operate as a waiver of any other right or remedy that City may have hereunder.
Public Facilities Fee Credit.
8.1. Eligible Improvements. The Improvements eligible to receive the Public
Facilities Fee Credit described in this Section 8 are the 1,668 foot extension of the 8 -inch recycled water
main in Camino Colegio.
11
8.2. Source and Method of Credit. Subject to the limitations set forth in Section 8.6,
City shall credit Developer for the costs associated with the construction and installation of the
improvements as outlined in Exhibit B. The Public Facilities Fee Credit represents reimbursement to the
Developer for the costs of improvements that are covered by the Public Facilities Fee, but which
Developer has agreed to incur. The initial estimated total credit amount is indicated in Exhibit B "Public
Facilities Fee Credit Calculation" attached hereto, and shall be afforded to Developer in the form of a
credit against the Public Facilities Fee that would otherwise be applicable to the Project.
8.3. Implementation of Public Facilities Fee Credit. Developer shall be entitled to
receive the Public Facilities Fee Credit at the time of issuance of building permits for the Project. Such
credit shall be personal to the Developer and shall run with the land. The Public Facilities Fee Credit may
be credited only for development of the Project and shall not run to successors and assigns unless
assigned in writing by Developer to a subsequent owner of the Property.
8.4. Fee Obligation. Developer's obligation to pay the full amount of the Public
Facilities Fee for any development in the Southeast Specific Plan shall remain a debt and obligation of
Developer- until completion by Developer and acceptance of the Improvements by City. In the event that
the Improvements are not completed by a date two (2) years from the Effective Date of this Agreement,
any Public Facilities Fee previously credited pursuant to this Agreement shall be immediately due and
payable by Developer. If such fees are not paid as required, City may provide written notice to Developer
of its default. If such default is not corrected within 30 days from the date of written notice, Developer
agrees that the amount of any unpaid Public Facilities Fees may be placed upon the Property as a lien and
special assessment. The assessment shall continue until it is paid, together with interest at the legal
maximum rate computed from the date of confirmation of the statement until payment. The assessment
shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and
shall be subject to the same penalties and procedure and sale in case of delinquency as is provided for
ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes
shall be applicable to the special assessment. In addition, City may use any other available legal means to
collect the unpaid Public Facilities Fee and the choice of one remedy does not affect City's ability to use
alternative remedies.
8.5. Expiration of Credit Obligation. The Public Facilities Fee Credit shall be granted
to Developer at the time Developer obtains building permit(s) for the Project. City's obligation to extend
Developer a credit as described herein shall continue for a total of four (4) years from the date the
Developer begins construction of the recycled water main improvements unless the obligation is sooner
satisfied. If Developer fails to complete the Improvements within the two-year time frame, City may seek
payment of the Public Facilities Fee from Developer as provided in Section 8.4, above.
8.6. Maximum Credit. The total amount of the Public Facilities Fee Credit obligation
for the Improvements shall be as determined by City in accordance with the City of Rohnert Park 2011
Update to the Public Facilities Finance Plan. The Parties acknowledge and agree that the maximum credit
amount for the Improvements is Four Hundred Thousand, One Hundred Eighty Two Dollars and No
Cents ($400,182.00) as more fully described in Exhibit B.
8.7. Areas and Quantities. The areas and quantities used to develop this Public
Facilities Fee Credit agreement are based on the information and plans available at this time. The actual
areas and quantities may change at the time of dedication to the City and/or construction by the
Developer. If it is determined by the City Engineer that the areas and quantities have changed, the credit
amount may be adjusted
12
Miscellaneous.
9.1 Compliance with Laws. Developer shall fully comply with all federal, state and
local laws, ordinances and regulations in the performance of this Agreement. Developer shall, at its own
cost and expense, obtain all necessary permits and licenses for the Work, give all necessary notices, pay
all fees and taxes required by law and make any and all deposits legally required by those public utilities
that will serve the development on the Property. Copies and/or proof of payment of said permits, licenses,
notices, fee and tax payments and deposits shall be furnished to the City Engineer upon request.
9.2. Notices. Formal written notices, demands, correspondence and communications
between City and Developer shall be sufficiently given if: (a) personally delivered; or (b) dispatched by
next day delivery by a reputable carrier such as Federal Express to the offices of City and Developer
indicated below, provided that a receipt for delivery is provided; or (c) if dispatched by first class mail,
postage prepaid, to the offices of City and Developer indicated below. Such written notices, demands,
correspondence and communications may be sent in the same manner to such persons and addresses as
either party may from time -to -time designate by next day delivery or by mail as provided in this section.
City: City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Manager
with a copy to: City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Attorney
Developer: Penn Grove Mountain, LLC
P.O. Box 2357
Healdsburg CA 95448
Attn.: Mr. Ben VanZutphen
Notices delivered by deposit in the United States mail as provided above shall be deemed to have been
served two (2) business days after the date of deposit if addressed to an address within the State of
California, and three (3) business days if addressed to an address within the United States but outside the
State of California.
9.3 AttorneyFees. Should any legal action or arbitration be brought by either party
because of breach of this Agreement or to enforce any provision of this Agreement, the prevailing party
shall be entitled to all costs of suit; reasonable attorney fees, arbitration costs and such other costs as may
be determined by the court or arbitrator.
9.4. Entire Agreement. The terms and conditions of this Agreement constitute the
entire agreement between City and Developer with respect to the matters addressed in this Agreement.
This Agreement may not be altered, amended or modified without the written consent of both parties
hereto.
9.5. Runs with the Land: Recordation. This Agreement pertains to and shall run with
the Property. Upon execution, this Agreement shall be recorded in the Official Records of Sonoma
County.
13
9.6. Transfers; Assignments. Developer may assign its obligations under this
Agreement to successor owner(s) of the Site with the prior written approval of the City. In connection
with any such assignment, Developer and its assignee shall execute and deliver to City a written
assignment and assumption agreement in a form acceptable to the City Attorney.
9.7. Time is of the Essence. Time is of the essence of this Agreement and of each and
every term and condition hereof.
9.8. Severability. If any provision of this Agreement is held, to any extent, invalid,
the remainder of this Agreement shall not be affected, except as necessarily required by the invalid
provision, and shall remain in full force and effect.
9.9. Waiver or Modification. Any waiver or modification of the provisions of
this Agreement must be in writing and signed by the authorized representative(s) of each Party.
9.10. Relationship of the Parties. Neither Developer nor Developer's contractors,
subcontractors, agents, officers, or employees are agents, partners, joint venturers or employees of City
and the Developer's relationship to the City, if any, arising herefrom is strictly that of an independent
contractor. Developer's contractors and subcontractors are exclusively and solely under the control and
dominion of Developer. Further, there are no intended third party beneficiaries of any right or obligation
assumed by the Parties.
9.11. Binding upon Heirs Successors and Assigns. The terms, covenants and
conditions of this Agreement shall be binding upon all heirs, successors and assigns of the parties hereto;
provided, however, that this Agreement shall not be binding upon a purchaser or transferee of any portion
of the Property unless this Agreement has been assigned pursuant to Section 9.6, in which event this
Agreement shall remain binding upon Developer.
9.12. Governing Law; Venue. This Agreement shall be construed and enforced in
accordance with the laws of the State of California, without reference to choice of law provisions. Any
legal actions under this Agreement shall be brought only in the Superior Court of the County of Sonoma,
State of California.
9.13. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original.
9.14. Interpretation. This Agreement shall be construed according to its fair
meaning, and not strictly for or against any party. No presumptions or rules of interpretation based
upon the identity of the party preparing or drafting the Agreement, or any part thereof, shall apply to
the interpretation of this Agreement.
9.15. Headings. Section headings in this Agreement are for convenience only and are
not intended to be used in interpreting or construing the terms, covenants or conditions contained in this
Agreement.
9.16. Authority. Each party executing this Agreement on behalf of a party represents
and warrants that such person is duly and validly authorized to do so on behalf of the entity it purports to
bind and if such party is a partnership, corporation or trustee, that such partnership, corporation or trustee
has full right and authority to enter into this Agreement and perform all of its obligations hereunder.
14
9.17 Joint and Several Liability. Penn Grove Mountain LLC shall be jointly and
severally liable for all obligations of Developer under this Agreement.
IN WITNESS WHEREOF, City and Developer have executed this Agreement as of the Effective
Date.
Dated:
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
Date:
15
"CITY"
CITY OF ROHNERT PARK, a California
municipal corporation
By:
City Manager
Per Resolution No. 2016- adopted by the Rohnert Park
City Council at its meeting of September 13, 2016.
"DEVELOPER"
Penn Grove Mountain LLC
A California Limited Liability Company
By:
Name:
Title:
Date:
16
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA )
ss.
COUNTY OF SONOMA )
On before me,
(here insert name and title of the officer)
personally appeared , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
IVA
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF CONTRA COSTA )
On before me, >
(here insert name and title of the officer)
personally appeared , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
_0
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA )
ss.
COUNTY OF SONOMA )
On before me,
(here insert nani.e and title of the officer)
personally appeared , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
19
RECORDING REQUESTED BY ) Exhibit B to Resolution
AND WHEN RECORDED MAIL TO: )
)
City of Rohnert Park )
130 Avram Avenue )
Rohnert Park, California 94928-2486 )
Attention: City Clerk )
(Sl -we Above This Line for Recorder's Use Only)
Exempt from recording fee per Gov. Code § 27383.
PUBLIC IMPROVEMENT AGREEMENT
BY AND BETWEEN THE CITY OF ROHNERT PARK
AND PENN GROVE MOUNTAIN LLC FOR SOUTHEAST SPECIFIC PLAN WATER TANK
This Public Improvement Agreement (the "Agreement") is made and entered into on this day of
2016 (the "Effective Date") by and between Penn Grove Mountain LLC, a California
Limited Liability Company, ("Developer"), and the CITY OF ROHNERT PARK, a California municipal
corporation ("City"). City and Developer are sometimes referred to hereinafter individually as "Party" and
collectively as "Parties".
RECITALS
A. The Southeast Rohnert Park Specific Plan consists of an 80 -acre site located north of
Valley House Drive, west of Petaluma Hill Road, south of the Canon Manor Specific Plan Area, and east
of Bodway Parkway, identified by Sonoma County Assessor as parcel number 047-111-030, and
illustrated in Exhibit A, attached hereto and incorporated by this reference.
B. On November 25, 2014, the City Council of the City of Rohnert Park adopted Resolution
No. 2014-166, approving the Tentative Map for Southeast Rohnert Park, File No. PLSD2014-0008,
subject to certain conditions of approval (the "Conditions").
C. Developer intends to file the final map for Phase 1 consisting of 105 single-family
residential lots and six parcels.
D. The Conditions include the requirement for Developer to construct the following
improvements in conjunction with the first final map filed for the Southeast Specific Plan Area:
1. All in -tract improvements within the first final map area, including streets, storm
drainage, water, sewer, recycled water, joint trench and streetlighting, Valley House
Drive and Bodway Avenue sidewalk and landscaping, in -tract landscaping, and
stormwater basin
A 360,000 - gallon water storage tank within Phase 1
Willow Glen Park
E. Developer has begun construction of a portion of the improvements, providing access to
model homes including a street loop of Waterside Way, Watson Way, and Wisdom Lane, along with
storm drain, water, recycled water, and sanitary sewer lines.
F. Developer has submitted plans, specifications and drawings for the Southeast Specific
Plan Water Tank (Improvements) consisting of:
• Southeast Specific Plan Area Water Tank, 2016, prepared by
Brelje & Race Consulting Engineers, 27 Sheets (Sheets 1 thru 27) and approved by the City
Engineer on )2016.
G. City and Developer desire to enter an agreement providing for the construction and
installation of the Improvements in accordance with the plans, specification and drawings described in
Recital F.
AGREEMENT
NOW, THEREFORE, in consideration of the faithful performance of the terms and
conditions set forth in this Agreement, the parties hereto agree as follows:
1. Incorporation of Recitals. The foregoing Recitals are true and correct and, together
with the Project Approvals and the requirements of Chapter 16.16 of the RPMC, are hereby
incorporated into and form a material part of this Agreement.
2. Purpose and Effective Date
2.1 Purpose. The purpose of this Agreement is to guarantee completion of the
Improvements and ensure satisfactory performance by Developer of Developer's obligations to satisfy the
Conditions.
2.2 Effective Date. The Effective Date of this Agreement shall be as set forth above.
3. Property Subject to Agreement. The property which is the subject of this Agreement is
located in the City of Rohnert Park, Sonoma County, California, identified by Sonoma County Assessor
as parcel number 047-111-030, and is described in Exhibit A, attached hereto (the "Property").
4. Improvements
4.1 Duty to Install Improvements. Developer will design, construct, install and
complete, or cause to be constructed, installed and completed, at the Developer's sole cost and expense,
the Improvements, in accordance with the Improvement Plans (defined in Recital F above) and to the
satisfaction of the City Engineer, in his/ her reasonable discretion. Developer will also supply all labor
and materials therefor, all in strict accordance with the terms and conditions of this Agreement. The
construction, installation and completion of the Improvements including all labor and materials furnished
in connection therewith are hereinafter referred to collectively as the "Work."
City shall not be responsible or liable for the maintenance or care of the Improvements until City fonnally
approves and accepts them in accordance with its policies and procedures. City shall exercise no control
over the Improvements until approved and accepted. Any use by any person of the Improvements, or any
portion thereof, shall be at the sole and exclusive risk of the Developer at all times prior to City's
acceptance of the Improvements. Developer shall maintain all the Improvements in a state of good repair
until they are completed by Developer and approved and accepted by City. Maintenance shall include, but
2
shall not be limited to, repair of pavement, curbs, gutters, sidewalks, signals, parkways, water mains, and
sewers; maintaining all landscaping in a vigorous and thriving condition reasonably acceptable to City;
removal of debris from sewers and storin drains; and sweeping, repairing, and maintaining in good and
safe condition all streets and street improvements. It shall be Developer's responsibility to initiate all
maintenance work, but if it shall fail to do so, it shall promptly perforin such maintenance work when
notified to do so by City. If Developer fails to properly prosecute its maintenance obligation under this
section, City may do all work necessary for such maintenance and the cost thereof shall be the
responsibility of Developer and its surety under this Agreement. Prior to undertaking said maintenance
work, City agrees to notify Developer in writing of the deficiencies and the actions required to be taken
by the Developer to cure the deficiencies. Developer shall have thirty (30) days from the date of the
notice within which to correct, remedy or cure the deficiency. If the written notification states that the
problem is urgent and relates to the public health and safety, then the Developer shall have twenty-four
(24) hours to correct, remedy or cure the deficiency. City shall not be responsible or liable for any
damages or injury of any nature in any way related to or caused by the Improvements or their condition
prior to acceptance.
4.2. Completion Date. Developer will complete the Work within twenty-four (24)
months of the Effective Date or as required by the Development Agreement, whichever is sooner. All
Work will be completed in a good and workmanlike manner in accordance with accepted design and
construction practices. This completion date may be extended by the City in its sole and absolute
discretion at the request of Developer, which request shall be accompanied by a written assurance
acceptable to the City Attorney that the securities required by Section 5 shall remain enforceable
throughout the term of the extension.
4.3. Estimated Cost of Work. The estimated cost of the Work is One Million Nine
Hundred Ninety Seven Thousand, Two Hundred Five Dollars and No Cents ($1,997,205.00).
Notwithstanding this estimate, Developer hereby acknowledges and agrees that (a) the actual costs to
complete the Work may significantly exceed this estimate, (b) this estimate in no way limits Developer's
financial obligation, and (c) that Developer is obligated to cornplete the Work at its own cost, expense,
and liability.
4.4. Modifications to the Plans. Approval of this Agreement by City does not release
Developer of its responsibility to correct mistakes, errors or omissions in the Improvement Plans. If, at
any time, in the opinion of the City Engineer, in his/her reasonable discretion, the Improvement Plans are
deemed inadequate in any respect Developer agrees to make such modifications, changes or revisions as
necessary in order to complete the Work in a good and workmanlike manner in accordance with accepted
design and construction standards.
4.5. Foreman or Superintendent. Developer shall give personal attention to the Work.
A competent foreman or superintendent, satisfactory to the City Engineer, in his/her reasonable
discretion, with authority to act for and on behalf of Developer, shall be named in writing by Developer
prior to commencement of the Work, shall be present on the Property during the performance of the
Work. Any change in the superintendent will require advance notification to the City Engineer and
concurrence of the City Engineer and the Engineer of Record for the Improvement Plans.
4.6. Encroachment Permits. Developer shall obtain, at its sole cost and expense, any
encroachment permits required by the City in order to perform the Work. Developer shall also obtain any
encroachment permits, grading permits, or other pennits required by the County of Sonoma for
construction of the improvements.
4.7. Inspection: All of the Improvements shall be constructed and installed to the
satisfaction of the City Engineer, in his or her reasonable discretion. City and its authorized agents shall,
at all times during the construction of the Improvements, have free access to the Improvements and shall
be allowed to examine and inspect the Improvements and all material used and to be used in the
Improvements to confirm compliance with City Plans and Specifications.
4.8. Commencement of Construction and Inspection. Developer and its contractor
or subcontractors shall not commence construction of the Improvements until Developer has received
written authorization from City to proceed. Written authorization shall be in the form of signed
approved plans along with permit issuance, including any encroachment permit required to carry on
construction activities in the City's right-of-way as described in Section 4.6. All work perfornzed on
the Improvements shall be done in strict compliance with the City approved plans, specifications and
the contract documents and in a good and workmanlike manner. All work perforined by Developer,
its contractor or agents to construct the Improvements shall be subject to inspection by City. All fees
and costs to construct the Improvements shall be borne solely by Developer (including the applicable
Inspection Fee in accordance with the City's adopted Engineering Fee Schedule). Inspection by City
or its employees or agents shall not relieve Developer of its liability for design defects or improper
or inadequate workmanship.
4.9. City's Inspection Administration and Testing Costs. Developer shall pay to City
the actual cost for all inspection, administration and testing services furnished by City in connection with
this Agreement, including those performed by consultants under contract with the City (the "City Costs").
City agrees not to double charge Developer (through the imposition of both a processing fee and a
consultant charge) for any individual monitoring, inspection, testing or evaluation service. In addition,
City agrees to limit its use of outside consultants to those reasonably necessary or desirable, as
determined by the City Manager or his designee in his reasonable discretion, to accomplish the requisite
inspection, administration and monitoring. The estimated cost for the inspection, administration and
T ,.�,. It a TvT; L7,, A A Sixt" Dollars t$29 960 001 (the "Estimated
testing services -s 1 wenty Nine tuulisand, t mi iiuuur .y ,���• �__
Cost"). Concurrently with the execution of this Agreement, Developer shall deposit an amount equal to
the Estimated Cost with City for the payment of the City Costs. In the event that the Estimated Cost is
insufficient to cover the actual City Costs incurred, Developer shall, upon notice in writing by the City
Engineer, deposit such additional amount as may be required to pay the City Costs. Any amount of the
Estimated Cost, initial deposit or additional amounts deposited remaining after payment of all City Costs
will be returned to Developer. City may, at its discretion, deposit such funds in an interest-bearing
account and retain any and all interest earned.
4.10. No Waiver by City. Inspecting of the work and/or materials, or approval of work
and/or materials, or a statement by an officer, agent or employee of the City indicating the work complies
with this Agreement, or acceptance of all or any portion of the work and/or materials, or payments
thereof, or any combination of all of these acts shall not relieve Developer or its obligation to fulfill this
Agreement; nor is the City by these acts prohibited from bringing an action for damages arising from the
failure to comply with this Agreement.
4.11. Erosion Control. Pursuant to Rohnert Park Municipal Code Chapter 15.52,
Developer shall be responsible for the control of erosion on the Property and shall prevent its entry into
the storm drainage system.
4.12. Prevailing Wages. The Improvements constitute a "public work" as defined in
the California Labor Code, section 1771, et seq ("Labor Code Regulations"). Developer agrees to
defend, indemnify and hold City, its elected officials, officers, employees, and agents free and
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harmless from any and all claims, damages, suits or actions arising out of or incident to
Developer's obligations under this section and the payment of prevailing wages. The Developer
must provide documentation that prevailing wages were paid for the work.
4.13. Contractor Licenses. All work performed on the Improvements shall be
done only by contractors licensed in the State of California and qualified to perform the type of
work required and comply with the City's Business License Ordinance.
4.14. Repair of Work Damaged During Construction. Developer agrees to repair or
have repaired in a timely manner at its sole cost and expense all public roads, streets, or other public or
private property damaged as a result of or incidental to the Work or in connection with the development
of the Property or to pay to the property owner of any damaged road, street or property the full cost of
such repair. In addition, Developer shall obtain the written acceptance of such repair or payment from any
owner whose private property was repaired by Developer or to whom Developer has paid the full cost of
such repair in accordance with this Section 4.14. City shall be under no obligation whatsoever to accept
the Work completed under this Agreement until such time as all repairs have been completed or have
been paid for and written acceptances have been provided to the City Engineer, except as otherwise
provided in section 4.18.1
4.15. Payments. Developer agrees that it will pay, when due, all those furnishing labor
or materials in connection with the Work. Developer further agrees that pursuant to Government Code
section 66499.7, the Labor and Materials Bond provided by Developer in accordance with Section 5.1.2
of this Agreement shall not be released if any mechanics liens or stop notices are outstanding, unless said
liens are released by bond in compliance with Civil Code section 3143.
4.16. Liability for Work Prior to Formal Acceptance. Until the City Council has
formally accepted the Improvements, Developer shall be solely responsible for all damage to the
work, regardless of cause, and for all damages or injuries to any person or property at the work
site, except damage or injury due to the sole negligence of City, or its employees. Developer
shall replace or repair any portion of the Improvements that have been destroyed or damaged
prior to final acceptance of completed work by the City Council or the City Engineer. Any such
repair or replacement shall be to the satisfaction and subject to the approval of the City Engineer.
Developer shall repair to the satisfaction of the City Engineer any damage to the utilities systems,
concrete work, street paving or other public improvements that may occur in connection with the
Improvements work.
4.17. Completion of Work. After Developer (a) completes the Work in accordance
with the Improvement Plans and the terns and conditions of this 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, Developer will provide City with a written notice of completion, together with copies
of all written acceptances.
4.18. Final Acceptance.
4.18.1 Notice of Completion. Within thirty (30) days of receipt of Developer's
written notification pursuant to Section 4.17 above, 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/her reasonable discretion, and whether
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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/her reasonable discretion, if Developer
has made commercially reasonable efforts to obtain such acceptances. City Engineer's failure to respond
to Developer's written notification within thirty (30) days will not be deemed a breach or default under
this Agreement.
4.18.2 Acceptance of Improvements. After sending Developer a written notice
of satisfactory completion pursuant to Section 4.18.1, the City Engineer will recommend acceptance of
the Improvements, or a portion thereof, to the City Council. In conjunction with such recommendation,
the City Engineer will recommend the acceptance of the offers of dedication shown on the final map for
the Property. The acceptance of the Improvements, 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 of
acceptance, in a form to be approved by the City Attorney, in the Official Records of Sonoma County.
4.19. Warranty Period-, Repair- and Reconstruction. Without limiting the foregoing,
Developer expressly warrants and guarantees all work performed under this Agreement and all materials
used in the Work for a period of one (1) year after the date of recordation of the notice of acceptance of
the improvements in accordance with Section 4.18. If, within this one (1) year period, any Improvement
or part of any Improvement installed or constructed, or caused to be installed or constructed by
Developer, or any of the work done under this Agreement, fails to fulfill any of the requirements of the
Improveiment Plans or this Agreement, Developer shall, without delay and without cost to City, repair,
replace or reconstruct any defective or otherwise unsatisfactory part or parts of the Work or Improvement
to the satisfaction of the City Engineer. Should Developer fail to act promptly, by failing to repair, replace
or reconstruct work thirty (30) days after notification by City, or in accordance with this requirement, or
should the exigencies of the situation require repairs, replacements or reconstruction to be made before
Developer can be notified, City may, at its option, make the necessary repairs, replacements or perform
the necessary reconstruction and Developer shall pay to the City upon demand the actual cost of such
repairs, replacements or reconstruction.
4.20. Record Drawings. Upon completion of the Improvements and prior to final
acceptance by the City Council, Developer shall deliver to City one electronic file, in a format
specified by the City Engineer, and one mylar copy of "as -built" drawings. These drawings shall be
in a form acceptable to the City Engineer, shall be certified by an engineer licensed by the State of
California as to accuracy and completeness, and shall reflect the Improvements as actually
constructed, with any and all changes incorporated therein. Developer shall be solely responsible and
liable for ensuring the completeness and accuracy of the record drawings.
4.21. Ownership of Improvements. From and after acceptance of the
Improveiments by formal action of the City Council, ownership of the Improvements shall be
vested exclusively in City.
Security.
5.1 Performance Labor and Materials and Warranty Security. In accordance with
Sections 16.16.060 through 16.16.070 of the Rohnert Park Municipal Code, Developer will furnish and
deliver to City, within the times set forth below, the following surety bonds, each of which must be issued
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by a surety company duly and regularly authorized to do general surety business in the State of California,
or an irrevocable assignment of funds or letter of credit as may be acceptable to the City Attorney.
5.1.1 Perfonnance Security. Developer shall furnish and deliver performance
security concurrently with the execution of this Agreement, which must meet the requirements of
Government Code Section 66499. 1, if applicable, and Rohnert Park Municipal Code Section 16.16.070
and be acceptable to the City Attorney, in the amount of One Million, Nine Hundred Ninety Seven
Thousand, Two Hundred Five Dollars and No Cents ($1,997,205.00).
The security shall be conditioned upon the faithful performance of this Agreement with respect to the
Work and shall be released by the City effective upon the date of recordation of the notice of acceptance
of the improvements as described in Section 4.18.2 and Developer's delivery of the Warranty Security
described in Section 5.1.3.
5.1.2 Labor and Materials Security. Developer shall furnish and deliver labor
and materials security concurrently with the execution of this Agreement which security must meet the
requirements of Government Code Section 66499.2, if applicable, and Rohnert Park Municipal Code
Section 16.16.070 and be acceptable to the City Attorney, in the amount of One Million, Nine Hundred
Ninety Seven Thousand, Tow Hundred Five Dollars and No Cents ($1,997,205.00).
The security shall secure payment to the contractor(s) and subcontractor(s) performing the Work and to
all persons furnishing labor, materials or equipment to them. The City shall retain each security until both
(i) the City accepts the Work in accordance with Section 4.18 above and (ii).the statute of limitations to
file an action under Civil Code section 3114 et seq. has expired. After said date, the security may be
reduced by the City Engineer to an amount not less than the total amount claimed by all claimants for
whom claims of lien have been recorded and notice given in writing to the City Council. The balance of
the security shall be retained until the final settlement of all such claims and obligations. If no such claims
have been recorded, the security shall be released in full by the City Engineer.
5.1.3. Warranty Security. Developer shall furnish and deliver warranty security
as specified in section 16.16.070 c. of the Rohnert Park Municipal Code., upon acceptance of the
Improvements and prior to release of the Performance Security, in the amount of Two Hundred Ninety
Nine Thousand Five Hundred Eighty Dollars and No Cents (299,580.00).
The security shall be in a form acceptable to the City Attorney and shall guarantee and warranty the Work
for a period of one (1) year following the date of recordation of the notice of acceptance of the
improvements against any defective work or labor done, or defective materials furnished.
5.2. Additional Security. If either upon execution of this Agreement or during the
course of performance the City considers that it is necessary to have Developer post additional security,
the City may require either a cash deposit or a surety bond guaranteeing performance in a form and signed
by sureties satisfactory to it. The condition of the security shall be that if Developer fails to perform its
obligation under this Agreement, the City may in the case of a cash bond act for it using the proceeds or
in the case of a surety bond require the sureties to perforn the obligations of the Agreement.
6. Indemnity and Insurance.
6.1 Indemnification. Developer agrees to indemnify, defend and hold the City, its
elective and appointed boards, commissions, officers, agents, employees and consultants, harnless from
and against any and all claims, liabilities, losses, damages or injuries of any kind (collectively, "Claims")
arising out of Developer's, or Developer's contractors', subcontractors', agents' or employees', acts,
7
omissions, or operations under this Agreement, including, but not limited to, the performance of the
Work, whether such acts, omissions, or operations are by Developer or any of Developer's contractors,
subcontractors, agents or employees, except to the extent such Claims are caused by the sole negligence
or willful misconduct of the City. This indemnification includes, without limitation, the payment of all
penalties, fines, judgments, awards, decrees, attorneys' fees, and related costs or expenses, and the
reimbursement of City, its elected officials, officers, employees, and/or agents for all legal expenses and
costs incurred by each of them.
The aforementioned indemnity shall apply regardless of whether or not City has
prepared, supplied or approved plans and/or specifications for the Work or Improvements and regardless
of whether any insurance required under this Agreement is applicable to any Claims. The City does not
and shall not waive any of its rights under this indemnity provision because of its acceptance of the bonds
or insurance required under the provisions of this Agreement. Developer's obligation to indemnify City
shall survive the expiration or termination of this Agreement.
Developer agrees to obtain executed indemnity agreements with provisions identical to
those set forth here in this section from each and every contractor and sub -contractor or any other person
or entity involved by, for, with or on behalf of Developer in the performance of this Agreement. In the
event Developer fails to obtain such indemnity obligations from others as required here, Developer agrees
to be fully responsible according to the terms of this section. Failure of City to monitor compliance with
these requirements imposes no additional obligations on City and will in no way act as a waiver of any
rights hereunder.
6.2. Insurance. Developer shall maintain Commercial General Liability Insurance
protecting the City from incidents as to bodily injury liability and property damage liability that may
occur as a result of the Work and additional repairs. Developer shall provide certificate(s) of insurance
and endorsements to City before any Work commences. The insurance policy shall contain, or be
endorsed to contain, the following provisions:
(1) The City, its officers, elected officials, employees, consultants, agents and
volunteers are to be covered as additional insured's as respects to liability arising
out of activities performed by or on behalf of Developer. The coverage shall
contain no special limitations on the scope of protection afforded to the City, its
officers, elected officials, employees, consultants, agents and volunteers.
(2) The amounts of public liability and property damage coverage shall not be less
than $3,000,000 (Three Million Dollars) per occurrence for bodily injury,
personal injury and property damage.
(3) The insurance shall be maintained in full force until the work has been completed
to the satisfaction of the City Engineer.
(4) The insurance policy shall provide for 30 days' notice of cancellation to the City.
The policy shall not be cancelled earlier than nor the amount of coverage be
reduced earlier than 30 days after the City receives notice from the insurer of the
intent of cancellation or reduction.
(5) Any failure to comply with the reporting provisions of the policy shall not affect
the coverage provided to the City, its officers, elected officials, employees,
consultants, agents and volunteers.
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(6) Developer's insurance coverage shall be primary insurance as respects the City,
its officers, elected officials, employees, consultants, agents and volunteers. Any
insurance or self-insurance maintained by the City, its officers, elected officials,
employees, consultants, agents and volunteers shall be in excess of Developer's
insurance and shall not contribute to it.
(7) Any deductibles or self-insured retentions must be declared to and approved by
City. At the option of City, either: (a) the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects City, its elected officials,
officers, employees, agents, and volunteers; or (b) Developer and its contractors
shall provide a financial guarantee satisfactory to City guaranteeing payment of
losses and related investigation costs, claims, and administrative and defense
expenses.
(8) Developer and Developer's insurance company agree to waive all rights of
subrogation against City, its officers, elected officials, employees, agents and
volunteers for losses paid under Developer's workers' compensation insurance
policy which arise from the work performed by Developer.
In the event that Developer's insurance is cancelled, Developer shall provide replacement coverage or all
work must cease as of the cancellation date until replacement insurance coverage is provided.
6.3. Workers' Compensation Insurance. Developer shall provide, or cause to be
provided, Workers' Compensation insurance as required by law, and shall cause its contractors and their
subcontractors, agents and representatives to also maintain Workers' Compensation insurance as required
by law. No Work shall commence until such Workers' Compensation insurance is obtained and in full
force and effect.
6.4. Other insurance Requirements. DeeveInpe shall:
(1) Prior to taking any actions under this Agreement, furnish City with properly
executed certificates of insurance which shall clearly evidence all insurance
required in this section and provide that such insurance shall not be canceled,
allowed to expire or be materially reduced in coverage except on thirty (30)
days prior written notice to City.
(2) Provide to City certified copies of endorsements and policies if requested by City,
and properly executed certificates of insurance evidencing the insurance required
herein.
(3) Replace or require the replacement of certificates, policies and endorsements for
any insurance required herein expiring prior to completion and acceptance of the
Improvements.
(4) Maintain all insurance required herein from the time of execution of this
Agreement until the acceptance of the Improverments.
(5) Place all insurance required herein with insurers licensed to do business in
California.
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Breach of Agreement Opportunity to Cure, Remedies.
7.1. Notice of Breach and Default. The occurrence of any of the following constitutes
a breach and default of this Agreement:
(1) Developer refuses or fails to complete the Work within the time set forth herein
or abandons the Work.
(2) Developer assigns the Agreement without the prior written consent of City.
(3) Developer is adjudged bankrupt or makes a general assignment for the benefit of
creditors, or a receiver is appointed in the event of Developer's insolvency.
(4) Developer or Developer's contractors, subcontractors, agents or employees, fail
to comply with any terms or conditions of this Agreement.
(5) Any delay in the construction of any portion of the Work or repairs, which in the
reasonable opinion of the City Engineer, endangers public or private property.
The City may serve written notice of breach and default upon Developer and the financial institution
holding the security.
7.2. Breach of Agreement; Performance by City. If the City gives Developer notice,
under Section 7. 1, of breach and default of this Agreement, the City may proceed to complete the Work
by contract or other method the City considers advisable, at the sole expense of Developer. Developer,
immediately upon demand, shall pay the costs and charges related to the Work and any subsequent
repairs. City, without liability for doing so, may take possession of and utilize in completing the Work
and repairs, if anv, such materials and other property belonging to Developer as may be on or about the
Property and necessary for completion of the work. In the event of default, the financial institution
holding the security shall be liable to City to pay the face amount of the bonds, as specified under Section
5.
7.3. Remedies. City may bring legal action to compel performance of this Agreement
and recover the costs of completing the Work and/or repairs, if any, including City's administrative and
legal costs. Developer agrees that if legal action is brought by City under this section of the Agreement,
Developer shall pay all of the costs of suit; reasonable attorney fees, arbitration costs and such other costs
as may be determined by the court or arbitrator. No failure on the part of City to exercise any right or
remedy hereunder shall operate as a waiver of any other right or remedy that City may have hereunder.
Miscellaneous.
8.1 Compliance with Laws. Developer shall fully comply with all federal, state and
local laws, ordinances and regulations in the performance of this Agreement. Developer shall, at its own
cost and expense, obtain all necessary pen -nits and licenses for the Work, give all necessary notices, pay
all fees and taxes required by law and make any and all deposits legally required by those public utilities
that will serve the development on the Property. Copies and/or proof of payment of said permits, licenses,
notices, fee and tax payments and deposits shall be furnished to the City Engineer upon request.
8.2. Notices. Formal written notices, demands, correspondence and communications
between City and Developer shall be sufficiently given if: (a) personally delivered; or (b) dispatched by
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next day delivery by a reputable carrier such as Federal Express to the offices of City and Developer
indicated below, provided that a receipt for delivery is provided; or (c) if dispatched by first class mail,
postage prepaid, to the offices of City and Developer indicated below. Such written notices, demands,
correspondence and communications may be sent in the same manner to such persons and addresses as
either party may from time -to -time designate by next day delivery or by mail as provided in this section.
City: City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Manager
with a copy to: City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Attorney
Developer: Penn Grove Mountain LLC
P.O. Box 2357
Healdsburg CA 95448
Attn.: Mr. Ben VanZutphen
Notices delivered by deposit in the United States mail as provided above shall be deemed to have been
served two (2) business days after the date of deposit if addressed to an address within the State of
California, and three (3) business days if addressed to an address within the United States but outside the
State of California.
8.3 Attorney. Should any legal action or arbitration be brought by either party
because of breach of this Agreement or to enforce any provision of this Agreement, the prevailing party
shall be entitled to all costs of suit; reasonable attorney fees, arbitration costs and such other- costs as may
be determined by the court or arbitrator.
8.4. Entire Agreement. The terms and conditions of this Agreement constitute the
entire agreement between City and Developer with respect to the matters addressed in this Agreement.
This Agreement may not be altered, amended or modified without the written consent of both parties
hereto.
8.5. Runs with the Land: Recordation. This Agreement pertains to and shall run with
the Property. Upon execution, this Agreement shall be recorded in the Official Records of Sonoma
County.
8.6. Transfers; Assignments. Developer may assign its obligations under this
Agreement to successor owner(s) of the Site with the prior written approval of the City. In connection
with any such assignment, Developer and its assignee shall execute and deliver to City a written
assignment and assumption agreement in a form acceptable to the City Attorney.
8.7. Time is of the Essence. Time is of the essence of this Agreement and of each and
every term and condition hereof.
8.8. Severability. If any provision of this Agreement is held, to any extent, invalid,
the remainder of this Agreement shall not be affected, except as necessarily required by the invalid
provision, and shall remain in full force and effect.
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8.9. Waiver or Modification. Any waiver or modification of the provisions of
this Agreement must be in writing and signed by the authorized representative(s) of each Party.
8.10. Relationship of the Parties. Neither Developer nor Developer's contractors,
subcontractors, agents, officers, or employees are agents, partners, joint venturers or employees of City
and the Developer's relationship to the City, if any, arising herefrom is strictly that of an independent
contractor. Developer's contractors and subcontractors are exclusively and solely under the control and
dominion of Developer. Further, there are no intended third party beneficiaries of any right or obligation
assumed by the Parties.
8.11. Binding upon Heirs, Successors and Assigns. The terms, covenants and
conditions of this Agreement shall be binding upon all heirs, successors and assigns of the parties hereto;
provided, however, that this Agreement shall not be binding upon a purchaser or transferee of any portion
of the Property unless this Agreement has been assigned pursuant to Section 8.6, in which event this
Agreement shall remain binding upon Developer.
8.12. Governing Law; Venue. This Agreement shall be construed and enforced in
accordance with the laws of the State of California, without reference to choice of law provisions. Any
legal actions under this Agreement shall be brought only in the Superior Court of the County of Sonoma,
State of California.
8.13. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original.
8.14. Interpretation. This Agreement shall be construed according to its fair
meaning, and not strictly for or against any party. No presumptions or rules of interpretation based
upon the identity of the party preparing or drafting the Agreement, or any part thereof, shall apply to
the interpretation of this Agreement.
8.15. Headings. Section headings in this Agreement are for convenience only and are
not intended to be used in interpreting or construing the terms, covenants or conditions contained in this
Agreement.
8.16. Authority. Each party executing this Agreement on behalf of a party represents
and warrants that such person is duly and validly authorized to do so on behalf of the entity it purports to
bind and if such party is a partnership, corporation or trustee, that such partnership, corporation or trustee
has full right and authority to enter into this Agreement and perform all of its obligations hereunder.
8.17 Joint and Several Liability. Penn Grove Mountain LLC shall be jointly and
severally liable for all obligations of Developer under this Agreement.
IN WITNESS WHEREOF, City and Developer have executed this Agreement as of the Effective
Date.
Signatures on Next Page
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"CITY"
CITY OF ROHNERT PARK, a California
municipal corporation
Dated:
City Manager
Per Resolution No. 2016- adopted by the Rohnert Park
City Council at its meeting of September 13, 2016.
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
Date:
"DEVELOPER"
Penn Grove Mountain LLC
A California Limited Liability Company
By:
Name:
Date:
13
Title:
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA )
ss.
COUNTY OF SONOMA )
On before me,
(Here insert narn.e and title of the officer)
personally appeared , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
14
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF CONTRA COSTA )
On before me,
(here insert nanie and title of the offrcer)
personally appeared who proved to me on the basis of satisfactory
evidence to be the persons) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
15
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA )
ss.
COUNTY OF SONOMA )
On
before me,
(here insert naine and title of the officer)
personally appeared , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
16
RECORDING REQUESTED BY ) Exhibit C to Resolution
AND WHEN RECORDED MAIL TO: )
)
City of Rohnert Park )
130 Avram Avenue )
Rohnert Park, California 94928-2486 )
Attention: City Clerk )
(Space Above This Line for Recorder's Use Only)
Exempt from recording fee per Gov. Code § 27383.
PUBLIC IMPROVEMENT AGREEMENT
BY AND BETWEEN THE CITY OF ROHNERT PARK
AND PENN GROVE MOUNTAIN INVESTMENTS LLC FOR WILLOW GLEN PARK
This Public Improvement Agreement (the "Agreement") is made and entered into on this day of
2016 (the 'Effective Date") by and between Penn Grove Mountain LLC, a California
Limited Liability Company, ("Developer"), and the CITY OF ROHNERT PARK, a California municipal
corporation ("City"). City and Developer are sometimes referred to hereinafter individually as "Party" and
collectively as "Parties".
RECITALS
A. The Southeast Rohnert Park Specific Plan consists of an 80 -acre site located north of
Valley House Drive, west of Petaluma Hill Road, south of the Canon Manor Specific Plan Area, and east
of Bodway Parkway, identified by Sonoma County Assessor as parcel number 047-111-030, and
illustrated in Exhibit A, attac.hP.d hereto and incorporated by this reference.
B. On November 25, 2014, the City Council of the City of Rohnert Park adopted Resolution
No. 2014-166, approving the Tentative Map for Southeast Rohnert Park, File No. PLSD2014-0008,
subject to certain conditions of approval (the "Conditions").
C. Developer intends to file the final map for Phase 1 consisting of 105 single-family
residential lots and six parcels.
D. The Conditions include the requirement for Developer to construct the following
improvements in conjunction with the first final map filed for the Southeast Specific Plan Area:
1. All in -tract improvements within the first final map area, including streets, storm
drainage, water, sewer, recycled water, joint trench and streetlighting, Valley House
Drive and Bodway Avenue sidewalk and landscaping, in -tract landscaping, and
storinwater basin
2. A 360,000 - gallon water storage tank within Phase 1
Willow Glen Park
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E. Developer has begun construction of a portion of the improvements, providing access to
model homes including a street loop of Waterside Way, Watson Way, and Wisdom Lane, along with
storm drain, water, recycled water, and sanitary sewer lines.
F. Developer has submitted plans, specifications and drawings for Willow Glen Park
(Improvements) consisting of:
• A Neighborhood Park, Southeast Rohnert Pari(, Public Landscape Improvement
Plans, 2016, prepared by Landesign Group, 32 Sheets (Sheets L1 thru L32), and
approved by the City Engineer on , 2016.
G. City and Developer desire to enter an agreement providing for the construction and
installation of the Improvements in accordance with the plans, specification and drawings described in
Recital F.
AGREEMENT
NOW, THEREFORE, in consideration of the faithful performance of the terms and
conditions set forth in this Agreement, the parties hereto agree as follows:
1. Incorporation of Recitals. The foregoing Recitals are true and correct and, together
with the Project Approvals and the requirements of Chapter 16.16 of the RPMC, are hereby
incorporated into and form a material part of this Agreement.
2. Purpose and Effective Date
2.1 Purpose. The purpose of this Agreement is to guarantee completion of the
Improvements and ensure satisfactory performance by Developer of Developer's obligations to satisfy the
Conditions.
2.2 Effective Date. The Effective Date of this Agreement shall be as set forth above.
3. Property Subject to Agreement. The property which is the subject of this Agreement is
located in the City of Rohnert Park, Sonoma County, California, identified by Sonoma County Assessor
as parcel number 047-111-030, and is described in Exhibit A, attached hereto (the "Property").
Improvements
4.1 Duty to Install Improvements. Developer will design, construct, install and
complete, or cause to be constructed, installed and completed, at the Developer's sole cost and expense,
the Improvements, in accordance with the Improvement Plans (defined in Recital F above) and to the
satisfaction of the City Engineer, in his/ her reasonable discretion. Developer will also supply all labor
and materials therefor, all in strict accordance with the terms and conditions of this Agreement. The
construction, installation and completion of the Improvements including all labor and materials furnished
in connection therewith are hereinafter referred to collectively as the "Work."
City shall not be responsible or liable for the maintenance or care of the Improvements until City formally
approves and accepts them in accordance with its policies and procedures. City shall exercise no control
over the Improvements until approved and accepted. Any use by any person of the Improvements, or any
portion thereof, shall be at the sole and exclusive risk of the Developer at all times prior to City's
acceptance of the Improvements. Developer shall maintain all the Improvements in a state of good repair
until they are completed by Developer and approved and accepted by City. Maintenance shall include, but
K
shall not be limited to, repair of pavement, curbs, gutters, sidewalks, signals, parkways, water mains, and
sewers; maintaining all landscaping in a vigorous and thriving condition reasonably acceptable to City;
removal of debris from sewers and storm drains; and sweeping, repairing, and maintaining in good and
safe condition all streets and street improvements. It shall be Developer's responsibility to initiate all
maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work when
notified to do so by City. If Developer fails to properly prosecute its maintenance obligation under this
section, City may do all work necessary for such maintenance and the cost thereof shall be the
responsibility of Developer and its surety under this Agreement. Prior to undertaking said maintenance
work, City agrees to notify Developer in writing of the deficiencies and the actions required to be taken
by the Developer to cure the deficiencies. Developer shall have thirty (30) days from the date of the
notice within which to correct, remedy or cure the deficiency. If the written notification states that the
problem is urgent and relates to the public health and safety, then the Developer shall have twenty-four
(24) hours to correct, remedy or cure the deficiency. City shall not be responsible or liable for any
damages or injury of any nature in any way related to or caused by the Improvements or their condition
prior to acceptance.
4.2. Completion Date. Developer will complete the Work within fifteen (15) months
of the Effective Date or as required by the Development Agreement, whichever is sooner. All Work will
be completed in a good and workmanlike manner in accordance with accepted design and construction
practices. This completion date may be extended by the City in its sole and absolute discretion at the
request of Developer, which request shall be accompanied by a written assurance acceptable to the City
Attorney that the securities required by Section 5 shall remain enforceable throughout the term of the
extension.
4.3. Estimated Cost of Work The estimated cost of the Work is Seven Hundred
Eleven Thousand, Eight Hundred Seventeen Dollars and No Cents ($711,817.00). Notwithstanding this
estimate, Developer hereby acknowledges and agrees that (a) the actual costs to complete the Work may
significantly exceed this estimate, (b) this estimate in no way limits Developer's financial obligation, and
tcl t1 0ttat riPVP1 lPY iQ nhl;nat"I to Onn,,,1PtP the -Work at its own cost expense and liahility.
4.4. Modifications to the Plans. Approval of this Agreement by City does not release
Developer of its responsibility to correct mistakes, errors or omissions in the Improvement Plans. If, at
any time, in the opinion of the City Engineer, in his/her reasonable discretion, the Improvement Plans are
deemed inadequate in any respect Developer agrees to make such modifications, changes or revisions as
necessary in order to complete the Work in a good and workmanlike manner in accordance with accepted
design and construction standards.
4.5. Foreman or Superintendent. Developer shall give personal attention to the Work.
A competent foreman or superintendent, satisfactory to the City Engineer, in his/her reasonable
discretion, with authority to act for and on behalf of Developer, shall be named in writing by Developer
prior to commencement of the Work, shall be present on the Property during the performance of the
Work. Any change in the superintendent will require advance notification to the City Engineer and
concurrence of the City Engineer and the Engineer of Record for the Improvement Plans.
4.6. Encroachment Permits. Developer shall obtain, at its sole cost and expense, any
encroachment permits required by the City in order to perform the Work. Developer shall also obtain any
encroachment permits, grading permits, or other permits required by the County of Sonoma for
construction of the improvements.
4.7. Inspection: All of the Improvements shall be constructed and installed to the
satisfaction of the City Engineer, in his or her reasonable discretion. City and its authorized agents shall,
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at all times during the construction of the Improvements, have free access to the Improvements and shall
be allowed to examine and inspect the Improvements and all material used and to be used in the
Improvements to confirin compliance with City Plans and Specifications.
4.8. Commencement of Construction and Inspection. Developer and its contractor
or subcontractors shall not commence construction of the Improvements until Developer has received
written authorization from City to proceed. Written authorization shall be in the form of signed
approved plans along with permit issuance, including any encroachment perinit required to carry on
construction activities in the City's right-of-way as described in Section 4.6. All work performed on
the Improvements shall be done in strict compliance with the City approved plans, specifications and
the contract documents and in a good and workmanlike manner. All work performed by Developer,
its contractor or agents to construct the Improvements shall be subject to inspection by City. All fees
and costs to construct the Improvements shall be borne solely by Developer (including the applicable
Inspection Fee in accordance with the City's adopted Engineering Fee Schedule). Inspection by City
or its employees or agents shall not relieve Developer of its liability for design defects or improper
or inadequate workmanship.
4.9. City's Inspection Administration and Testing Costs. Developer shall pay to City
the actual cost for all inspection, administration and testing services furnished by City in connection with
this Agreement, including those performed by consultants under contract with the City (the "City Costs").
City agrees not to double charge Developer (through the imposition of both a processing fee and a
consultant charge) for any individual monitoring, inspection, testing or evaluation service. In addition,
City agrees to limit its use of outside consultants to those reasonably necessary or desirable, as
determined by the City Manager or his designee in his reasonable discretion, to accomplish the requisite
inspection, administration and monitoring. The estimated cost for the inspection, administration and
testing services is Ten Thousand, Six Hundred Eighty Dollars ($10,680.00) (the "Estimated Cost").
Concurrently with the execution of this Agreement, Developer shall deposit an amount equal to the
Estimated Cost 111411(itv For the „a,,,,,Pnr of the (;tv COOS
to the event that the Estimated Cost is
insufficient to cover the actual City Costs incurred, Developer shall, upon notice in writing by the City
Engineer, deposit such additional amount as may be required to pay the City Costs. Any amount of the
Estimated Cost, initial deposit or additional amounts deposited remaining after payment of all City Costs
will be returned to Developer. City may, at its discretion, deposit such funds in an interest-bearing
account and retain any and all interest earned.
4.10. No Waiver by Inspecting of the work and/or materials, or approval of work
and/or materials, or a statement by an officer, agent or employee of the City indicating the work complies
with this Agreement, or acceptance of all or any portion of the work and/or materials, or payments
thereof, or any combination of all of these acts shall not relieve Developer or its obligation to fulfill this
Agreement; nor is the City by these acts prohibited from bringing an action for damages arising from the
failure to comply with this Agreement.
4.11. Erosion Control. Pursuant to Rohnert Park Municipal Code Chapter 15.52,
Developer shall be responsible for the control of erosion on the Property and shall prevent its entry into
the storm drainage system.
4.12. Prevailing Wages. The Improvements constitute a "public work" as defined in
the California Labor Code, section 1771, et seq ("Labor Code Regulations"). Developer agrees to
defend, indemnify and hold City, its elected officials, officers, employees, and agents free and
harmless from any and all claims, damages, suits or actions arising out of or incident to
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Developer's obligations under this section and the payment of prevailing wages. The Developer
must provide documentation that prevailing wages were paid for the work.
4.13. Contractor Licenses. All work performed on the Improvements shall be
done only by contractors licensed in the State of California and qualified to perform the type of
work required and comply with the City's Business License Ordinance.
4.14. Repair of Work Damaged During Construction. Developer agrees to repair or
have repaired in a timely manner at its sole cost and expense all public roads, streets, or other public or
private property damaged as a result of or incidental to the Work or in connection with the development
of the Property or to pay to the property owner of any damaged road, street or property the full cost of
such repair. In addition, Developer shall obtain the written acceptance of such repair or payment from any
owner whose private property was repaired by Developer or to whom Developer has paid the full cost of
such repair in accordance with this Section 4.14. City shall be under no obligation whatsoever to accept
the Work completed under this Agreement until such time as all repairs have been completed or have
been paid for and written acceptances have been provided to the City Engineer, except as otherwise
provided in section 4.18.1
4.15. Payments. Developer agrees that it will pay, when due, all those furnishing labor
or materials in connection with the Work. Developer further agrees that pursuant to Government Code
section 66499.7, the Labor and Materials Bond provided by Developer in accordance with Section 5.1.2
of this Agreement shall not be released if any mechanics liens or stop notices are outstanding, unless said
liens are released by bond in compliance with Civil Code section 3143.
4.16. Liability for Work Prior to Formal Acceptance. Until the City Council has
formally accepted the Improvements, Developer shall be solely responsible for all damage to the
work, regardless of cause, and for all damages or injuries to any person or property at the work
site, except damage or injury due to the sole negligence of City, or its employees. Developer
shall replace or repair any portion of the Improvements that 11ave been destroyed or darr�aged
prior to final acceptance of completed work by the City Council or the City Engineer. Any such
repair or replacement shall be to the satisfaction and subject to the approval of the City Engineer.
Developer shall repair to the satisfaction of the City Engineer any damage to the utilities systems,
concrete work, street paving or other public improvements that may occur in connection with the
Improvements work.
4.17. Completion of Work. After Developer (a) completes the Work in accordance
with the Improvement Plans and the terns and conditions of this 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, Developer will provide City with a written notice of completion, together with copies
of all written acceptances.
4.18. Final Acceptance.
4.18.1 Notice of Completion. Within thirty (30) days of receipt of Developer's
written notification pursuant to Section 4.17 above, 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/her reasonable discretion, and whether
the written acceptances have been provided. If the Work and repair are, in the opinion of the City
5
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/her reasonable discretion, if Developer
has made commercially reasonable efforts to obtain such acceptances. City Engineer's failure to respond
to Developer's written notification within thirty (30) days will not be deemed a breach or default under
this Agreement.
4.18.2 Acceptance of Improvements. After sending Developer a written notice
of satisfactory completion pursuant to Section 4.18.1, the City Engineer will recommend acceptance of
the Improvements, or a portion thereof, to the City Council. In conjunction with such recommendation,
the City Engineer will recommend the acceptance of the offers of dedication shown on the final map for
the Property. The acceptance of the Improvements, 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 of
acceptance, in a form to be approved by the City Attorney, in the Official Records of Sonoma County.
4.19. Warranty Period; Repair and Reconstruction. Without limiting the foregoing,
Developer expressly warrants and guarantees all work performed under this Agreement and all materials
used in the Work for a period of one (1) year after the date of recordation of the notice of acceptance of
the improvements in accordance with Section 4.18. If, within this one (1) year period, any Improvement
or part of any Improvement installed or constructed, or caused to be installed or constructed by
Developer, or any of the work done under this Agreement, fails to fulfill any of the requirements of the
Improvement Plans or this Agreement, Developer shall, without delay and without cost to City, repair,
replace or reconstruct any defective or otherwise unsatisfactory part or parts of the Work or Improvement
to the satisfaction of the City Engineer. Should Developer fail to act promptly, by failing to repair, replace
or reconstruct work thirty (30) days after" notification by City, or in accordance with this requirement, or
should the exigencies of the situation require repairs, replacements or reconstruction to be made before
Developer n be notified, City may, at its orptron make the necessan -11 renairc replacements or• perform
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the necessary reconstruction and Developer shall pay to the City upon demand the actual cost of such
repairs, replacements or reconstruction.
4.20. Record Drawings. Upon completion of the Improvements and prior to final
acceptance by the City Council, Developer shall deliver to City one electronic file, in a format
specified by the City Engineer, and one mylar copy of "as -built" drawings. These drawings shall be
in a form acceptable to the City Engineer, shall be certified by an engineer licensed by the State of
California as to accuracy and completeness, and shall reflect the Improvements as actually
constructed, with any and all changes incorporated therein. Developer shall be solely responsible and
liable for ensuring the completeness and accuracy of the record drawings.
4.21. Ownership of Improvements. From and after acceptance of the
Improvements by formal action of the City Council, ownership of the Improvements shall be
vested exclusively in City.
Security.
5.1 Performance Labor and Materials and Warranty Security. In accordance with
Sections 16.16.060 through 16.16.070 of the Rohnert Park Municipal Code, Developer will furnish and
deliver to City, within the times set forth below, the following surety bonds, each of which must be issued
I
by a surety company duly and regularly authorized to do general surety business in the State of California,
or an irrevocable assignment of funds or letter of credit as may be acceptable to the City Attorney.
5.1.1 Performance Security. Developer shall furnish and deliver performance
security concurrently with the execution of this Agreement, which must meet the requirements of
Government Code Section 66499. 1, if applicable, and Rohnert Park Municipal Code Section 16.16.070
and be acceptable to the City Attorney, in the amount of Seven Hundred Eleven Thousand, Eight Hundred
Seventeen Dollars and No Cents ($711,817.00).
The security shall be conditioned upon the faithful performance of this Agreement with respect to the
Work and shall be released by the City effective upon the date of recordation of the notice of acceptance
of the improvements as described in Section 4.18.2 and Developer's delivery of the Warranty Security
described in Section 5.1.3.
5.1.2 Labor and Materials Security. Developer shall furnish and deliver labor
and materials security concurrently with the execution of this Agreement which security must meet the
requirements of Government Code Section 66499.2, if applicable, and Rohnert Park Municipal Code
Section 16.16.070 and be acceptable to the City Attorney, in the amount of Seven Hundred Eleven
Thousand, Eight Hundred Seventeen Dollars and No Cents ($711,817.00).
The security shall secure payment to the contractor(s) and subcontractor(s) performing the Work and to
all persons furnishing labor, materials or equipment to them. The City shall retain each security until both
(i) the City accepts the Work in accordance with Section 4.18 above and (ii).the statute of limitations to
file an action under Civil Code section 3114 et seq. has expired. After said date, the security may be
reduced by the City Engineer to an amount not less than the total amount claimed by all claimants for
whom claims of lien have been recorded and notice given in writing to the City Council. The balance of
the security shall be retained until the final settlement of all such claims and obligations. If no such
claims have been recorded, the security shall be released in full by the City Engineer.
5.1.3. Warranty Security. Developer shall furnish and deliver warranty security
as specified in section 16.16.070 c. of the Rohnert Park Municipal Code., upon acceptance of the
Improvements and prior to release of the Performance Security, in the amount of One Hundred Six
Thousand Seven Hundred Seventy Five Dollars and No Cents (106,775.00).
The security shall be in a form acceptable to the City Attorney and shall guarantee and warranty the Work
for a period of one (1) year following the date of recordation of the notice of acceptance of the
improvements against any defective work or labor done, or defective materials furnished.
5.2. Additional Security. If either upon execution of this Agreement or during the
course of performance the City considers that it is necessary to have Developer post additional security,
the City may require either a cash deposit or a surety bond guaranteeing performance in a form and signed
by sureties satisfactory to it. The condition of the security shall be that if Developer fails to perform its
obligation under this Agreement, the City may in the case of a cash bond act for it using the proceeds or
in the case of a surety bond require the sureties to perform the obligations of the Agreement.
Indemnity and Insurance.
6.1 Indemnification. Developer agrees to indemnify, defend and hold the City, its
elective and appointed boards, commissions, officers, agents, employees and consultants, harmless from
and against any and all claims, liabilities, losses, damages or injuries of any kind (collectively, "Claims")
arising out of Developer's, or Developer's contractors', subcontractors', agents' or employees', acts,
7
omissions, or operations under this Agreement, including, but not limited to, the performance of the
Work, whether such acts, omissions, or operations are by Developer or any of Developer's contractors,
subcontractors, agents or employees, except to the extent such Claims are caused by the sole negligence
or willful misconduct of the City. This indemnification includes, without limitation, the payment of all
penalties, fines, judgments, awards, decrees, attorneys' fees, and related costs or expenses, and the
reimbursement of City, its elected officials, officers, employees, and/or agents for all legal expenses and
costs incurred by each of them.
The aforementioned indemnity shall apply regardless of whether or not City has
prepared, supplied or approved plans and/or specifications for the Work or Improvements and regardless
of whether any insurance required under this Agreement is applicable to any Claims. The City does not
and shall not waive any of its rights under this indemnity provision because of its acceptance of the bonds
or insurance required under the provisions of this Agreement. Developer's obligation to indemnify City
shall survive the expiration or termination of this Agreement.
Developer agrees to obtain executed indemnity agreements with provisions identical to
those set forth here in this section from each and every contractor and sub -contractor or any other person
or entity involved by, for, with or on behalf of Developer in the performance of this Agreement. In the
event Developer fails to obtain such indemnity obligations from others as required here, Developer agrees
to be fully responsible according to the terms of this section. Failure of City to monitor compliance with
these requirements imposes no additional obligations on City and will in no way act as a waiver of any
rights hereunder.
6.2. Insurance. Developer shall maintain Commercial General Liability Insurance
protecting the City from incidents as to bodily injury liability and property damage liability that may
occur as a result of the Work and additional repairs. Developer shall provide certificate(s) of insurance
and endorsements to City before any Work commences. The insurance policy shall contain, or be
endorsed to contain, the following provisions:
(1) The City, its officers, elected officials, employees, consultants, agents and
volunteers are to be covered as additional insured's as respects to liability arising
out of activities performed by or on behalf of Developer. The coverage shall
contain no special limitations on the scope of protection afforded to the City, its
officers, elected officials, employees, consultants, agents and volunteers.
(2) The amounts of public liability and property damage coverage shall not be less
than $3,000,000 (Three Million Dollars) per occurrence for bodily injury,
personal injury and property damage.
(3) The insurance shall be maintained in full force until the work has been completed
to the satisfaction of the City Engineer.
(4) The insurance policy shall provide for 30 days' notice of cancellation to the City.
The policy shall not be cancelled earlier than nor the amount of coverage be
reduced earlier than 30 days after the City receives notice from the insurer of the
intent of cancellation or reduction.
(5) Any failure to comply with the reporting provisions of the policy shall not affect
the coverage provided to the City, its officers, elected officials, employees,
consultants, agents and volunteers.
I
(6) Developer's insurance coverage shall be primary insurance as respects the City,
its officers, elected officials, employees, consultants, agents and volunteers. Any
insurance or self-insurance maintained by the City, its officers, elected officials,
employees, consultants, agents and volunteers shall be in excess of Developer's
insurance and shall not contribute to it.
(7) Any deductibles or self-insured retentions must be declared to and approved by
City. At the option of City, either: (a) the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects City, its elected officials,
officers, employees, agents, and volunteers; or (b) Developer and its contractors
shall provide a financial guarantee satisfactory to City guaranteeing payment of
losses and related investigation costs, claims, and administrative and defense
expenses.
(8) Developer and Developer's insurance company agree to waive all rights of
subrogation against City, its officers, elected officials, employees, agents and
volunteers for losses paid under Developer's workers' compensation insurance
policy which arise from the work performed by Developer.
In the event that Developer's insurance is cancelled, Developer shall provide replacement coverage or all
work must cease as of the cancellation date until replacement insurance coverage is provided.
6.3. Workers' Compensation Insurance. Developer shall provide, or cause to be
provided, Workers' Compensation insurance as required by law, and shall cause its contractors and their
subcontractors, agents and representatives to also maintain Workers' Compensation insurance as required
by law. No Work shall commence until such Workers' Compensation insurance is obtained and in full
force and effect.
Other insurance Requirement--,- Develoner-ha11-
(1) Prior to taking any actions under this Agreement, furnish City with properly
executed certificates of insurance which shall clearly evidence all insurance
required in this section and provide that such insurance shall not be canceled,
allowed to expire or be materially reduced in coverage except on thirty (30)
days prior written notice to City.
(2) Provide to City certified copies of endorsements and policies if requested by City,
and properly executed certificates of insurance evidencing the insurance required
herein.
(3) Replace or require the replacement of certificates, policies and endorsements for
any insurance required herein expiring prior to completion and acceptance of the
Improvements.
(4) Maintain all insurance required herein from the time of execution of this
Agreement until the acceptance of the Improvements.
(5) Place all insurance required herein with insurers licensed to do business in
California.
Breach of Agreement', Opportunity to Cure, Remedies.
7.1. Notice of Breach and Default. The occurrence of any of the following constitutes
a breach and default of this Agreement:
(1) Developer refuses or fails to complete the Work within the time set forth herein
or abandons the Work.
(2) Developer assigns the Agreement without the prior written consent of City.
(3) Developer is adjudged bankrupt or makes a general assignment for the benefit of
creditors, or a receiver is appointed in the event of Developer's insolvency.
(4) Developer or Developer's contractors, subcontractors, agents or employees, fail
to comply with any terms or conditions of this Agreement.
(5) Any delay in the construction of any portion of the Work or repairs, which in the
reasonable opinion of the City Engineer, endangers public or private property.
The City may serve written notice of breach and default upon Developer and the financial institution
holding the security.
7.2. Breach of Agreement, Performance by City. If the City gives Developer notice,
under Section 7. 1, of breach and default of this Agreement, the City may proceed to complete the Work
by contract or other method the City considers advisable, at the sole expense of Developer. Developer,
immediately upon demand, shall pay the costs and charges related to the Work and any subsequent
repairs. City, without liability for doing so, may take possession of and utilize in completing the Work
and repairs, if any, such materials and other property belonging to Developer as may be on or about the
Property and necessary for completion of the work. In the event of default, the financial institution
holding the security shall be liable to City to pay the face amount of the bonds, as specified under Section
5.
7.3. Remedies. City may bring legal action to compel performance of this Agreement
and recover the costs of completing the Work and/or repairs, if any, including City's administrative and
legal costs. Developer agrees that if legal action is brought by City under this section of the Agreement,
Developer shall pay all of the costs of suit; reasonable attorney fees, arbitration costs and such other costs
as may be determined by the court or arbitrator. No failure on the part of City to exercise any right or
remedy hereunder shall operate as a waiver of any other right or remedy that City may have hereunder.
Miscellaneous.
8.1 Compliance with Laws. Developer shall fully comply with all federal, state and
local laws, ordinances and regulations in the performance of this Agreement. Developer shall, at its own
cost and expense, obtain all necessary permits and licenses for the Work, give all necessary notices, pay
all fees and taxes required by law and make any and all deposits legally required by those public utilities
that will serve the development on the Property. Copies and/or proof of payment of said permits, licenses,
notices, fee and tax payments and deposits shall be furnished to the City Engineer upon request.
8.2. Notices. Formal written notices, demands, correspondence and communications
between City and Developer shall be sufficiently given if: (a) personally delivered; or (b) dispatched by
10
next day delivery by a reputable carrier such as Federal Express to the offices of City and Developer
indicated below, provided that a receipt for delivery is provided; or (c) if dispatched by first class mail,
postage prepaid, to the offices of City and Developer- indicated below. Such written notices, demands,
correspondence and communications may be sent in the same manner to such persons and addresses as
either party may from time -to -time designate by next day delivery or by mail as provided in this section.
City: City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Manager
with a copy to: City of Rohnert Park
130 Avrarn Avenue
Rohnert Park, CA 94928
Attn: City Attorney
Developer: Penn Grove Mountain Investments, LLC
P.O. Box 2357
Healdsburg CA 95448
Attn.: Mr. Ben VanZutphen
Notices delivered by deposit in the United States mail as provided above shall be deemed to have been
served two (2) business days after the date of deposit if addressed to an address within the State of
California, and three (3) business days if addressed to an address within the United States but outside the
State of California.
8.3 Attorney Fees. Should any legal action or arbitration be brought by either party
because of breach of this Agreement or to enforce any provision of this Agreement, the prevailing party
shall be entitled to all costs of suit; reasonable attorney fees, arbitration costs and such other costs as may
be determined by the court or arbitrator.
8.4. Entire Agreement. The terms and conditions of this Agreement constitute the
entire agreement between City and Developer with respect to the matters addressed in this Agreement.
This Agreement may not be altered, amended or modified without the written consent of both parties
hereto.
8.5. Runs with the Land; Recordation. This Agreement pertains to and shall run with
the Property. Upon execution, this Agreement shall be recorded in the Official Records of Sonoma
County.
8.6. Transfers; Assignments. Developer may assign its obligations under this
Agreement to successor owner(s) of the Site with the prior written approval of the City. In connection
with any such assignment, Developer and its assignee shall execute and deliver to City a written
assignment and assumption agreement in a form acceptable to the City Attorney.
8.7. Time is of the Essence. Time is of the essence of this Agreement and of each and
every terra and condition hereof.
8.8. Severability. If any provision of this Agreement is held, to any extent, invalid,
the remainder of this Agreement shall not be affected, except as necessarily required by the invalid
provision, and shall remain in full force and effect.
11
8.9. Waiver or Modification. Any waiver or modification of the provisions of
this Agreement must be in writing and signed by the authorized representative (s) of each Party.
8.10. Relationship of the Parties. Neither Developer nor Developer's contractors,
subcontractors, agents, officers, or employees are agents, partners, joint venturers or employees of City
and the Developer's relationship to the City, if any, arising herefrom is strictly that of an independent
contractor. Developer's contractors and subcontractors are exclusively and solely under the control and
dominion of Developer. Further, there are no intended third party beneficiaries of any right or obligation
assumed by the Parties.
8.11. Binding upon Heirs, Successors and Assigns. The terms, covenants and
conditions of this Agreement shall be binding upon all heirs, successors and assigns of the parties hereto;
provided, however, that this Agreement shall not be binding upon a purchaser or transferee of any portion
of the Property unless this Agreement has been assigned pursuant to Section 8.6, in which event this
Agreement shall remain binding upon Developer.
8.12. Governing Law; Venue. This Agreement shall be construed and enforced in
accordance with the laws of the State of California, without reference to choice of law provisions. Any
legal actions under this Agreement shall be brought only in the Superior Court of the County of Sonoma,
State of California.
8.13. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original.
8.14. Interpretation. This Agreement shall be construed according to its fair
meaning, and not strictly for or against any party. No presumptions or rules of interpretation based
upon the identity of the party preparing or drafting the Agreement, or any part thereof, shall apply to
the interpretation of this Agreement.
8.15. Headings. Section headings in this Agreement are for convenience only and are
not intended to be used in interpreting or construing the terms, covenants or conditions contained in this
Agreement.
8.16. Authority. Each party executing this Agreement on behalf of a party represents
and warrants that such person is duly and validly authorized to do so on behalf of the entity it purports to
bind and if such party is a partnership, corporation or trustee, that such partnership, corporation or trustee
has full right and authority to enter into this Agreement and perform all of its obligations hereunder.
8.17 Joint and Several Liability. Penn Grove Mountain LLC shall be jointly and
severally liable for all obligations of Developer under this Agreement.
IN WITNESS WHEREOF, City and Developer have executed this Agreement as of the Effective
Date.
Signatures on Next Page
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"CITY"
CITY OF ROHNERT PARK, a California
municipal corporation
Dated:
City Manager
Per Resolution No. 2016- adopted by the Rohne-t Park
City Council at its meeting of September 13, 2016.
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
Date:
"DEVELOPER"
Penn Grove Mountain LLC
A California Limited Liability Company
By:
Name:
Title:
Date:
13
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA )
ss.
COUNTY OF SONOMA )
On before me, ,
(here insert name and title of the officer)
personally appeared , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
101
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF CONTRA COSTA )
On before me,
(here insert naine and title of the officer)
personally appeared who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
15
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA )
ss.
COUNTY OF SONOMA )
On
before me,
(here insert natne and title of the officer)
personally appeared , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
16
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NUVcJ -LUDNHOLA ISV�]H-Lnos
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PRELIMINARY ESTIMATE OF PROBABLE CONSTRUCTION COST
DATE:
05/10/16
CIVIL DESIGN CONSULTANTS, INC.
CONSTRUCTION ITEM
UNIT
QUANTITY
UNIT PRICE
TOTAL
8" RECLAIMED WATER MAIN
LF
1,668
$65.00
$108,420
8" GATE VALVE
EA
4
$1,420.00
$5,680
8" VERT. OFFSET
EA
7
$3,440.00
$24,080
TEMP BLOW OFF & CUT -IN TEE
EA
1
$10,350.00
$10,350
AC TRENCH PER STD 215
SF
26,584
$8.00
$212,672
STRIPE/MARKINGS/BUTTON REPLACEMENT
LS
1
$2,600.00
$2,600
CONSTRUCTION SUB -TOTAL
$363,802
10% CONTINGENCY $36,380
CONSTRUCTION TOTAL $400,182
*THIS ESTIMATE IS NOT A WARRANTY OF COST