2016/11/22 City Council Resolution 2016-111RESOLUTION NO. 2016-111
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
APPROVING A THIRD AMENDMENT TO THE AGREEMENT FOR PURCHASE
AND SALE BETWEEN THE CITY AND STADIUM RP DEVELOPMENT PARTNERS,
LLC, REGARDING THE SALE OF THE PROPERTY KNOWN AS STADIUM LANDS
WHEREAS, on August 11, 2015, the City and 356 Advisors, Inc. and MJW
Investments, LLC (the "Initial Buyer Party"), entered into that certain Agreement for Purchase
and Sale (Including Joint Escrow Instructions) and Terms of Development (the "Original
Agreement") with respect to Buyer's purchase and development of that certain real property
consisting of 12.25 acres and located at Labath Avenue and Carlson Avenue in the City of
Rohnert Park (the "Property"); and
WHEREAS, on November 2, 2015, City and the Initial Buyer Party entered into a First
Amendment to the Original Agreement to extend the due diligence period an additional 30 days
to allow the buyer time for further analysis; and
WHEREAS, on November 24, 2015, City and the Initial Buyer Party entered into a
Second Amendment to the Original Agreement, as amended, to set forth the terms and
conditions of a modified project that allows for residential development, including a revised
Development Agreement Term Sheet; and
WHEREAS, the Initial Buyer Party subsequently assigned its interests in the Original
Agreement, as amended, to MJW Investments, Inc., who subsequently assigned its interests in
the Agreement to Stadium RP Development Partners, LLC (the "Buyer"); and
WHEREAS, Buyer and City now desire to amend the Agreement a third time to: (1)
remove the City's right to repurchase the Property; (2) amend the description of the Property to
add an additional 0.1 acres; (3) amend Buyer's condition to close to require a grading permit,
rather than a building permit, and a construction deed of trust; and (4) amend the Development
Agreement Term Sheet to set forth the terms by which the Buyer will construct the Martin
Avenue improvements; and
WHEREAS, Buyer and City staff have negotiated the form of a Third Amendment to
Purchase and Sale Agreement (Including Joint Escrow Instructions) and Terms of Development,
attached hereto as Exhibit A (the "Third Amendment").
NOW THEREFORE, BE IT RESOLVED, by the City Council of the City of Rohnert
Park that it does hereby find, determine, declare and resolve as follows:
Section 1. Recitals. The foregoing recitals are true and correct.
Section 2. A ) )i-ovai of the Third Amendment. The form of Third Amendment
included as Exhibit A to this Resolution is approved subject to minor modifications approved by
the City Manager and City Attorney.
Section 3. ALithority to Execute. The Mayor or her designee is hereby authorized
and directed to execute the Third Amendment, in substantially similar form to that attached as
Exhibit A
Section 4. Effective Date of Resolution. This Resolution shall take effect
immediately upon its adoption.
DULY AND REGULARLY ADOPTED this 22nd day of November, 2016.
ATTEST:
JoAnne M. Bucrgler, City Cl rk
Attachment: Exhibit A
CITY OF ROHNERT PARK
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2016-111
Exhibit A
THIRD AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE
(INCLUDING JOINT ESCROW INSTRUCTIONS) AND
TERMS OF DEVELOPMENT
This Third Amendment to Agreement for Purchase and Sale (Including Joint Escrow
Instructions) and Terms of Development ("Third Amendment"), dated as of
2016 ("Effective Date"), is by and between the CITY OF ROHNERT PARK, a California
municipal corporation ("Seller" or "City"), and STADIUM RP DEVELOPMENT PARTNERS,
LLC, a California limited liability company (the "Buyer").
RECITALS
A. On August 11, 2015, Seller and Buyer's predecessor -in -interest, 356 Advisors,
Inc. and MJW Investments, LLC (the "Initial Buyer Party"), entered into that certain
Agreement for Purchase and Sale (Including Joint Escrow Instructions) and Terms of
Development (the "Original Agreement") with respect to Buyer's purchase and development of
that certain real property consisting of 12.25 acres and located at Labath Avenue and Carlson
Avenue in the City of Rohnert Park (the "Property"). Terms not otherwise defined herein shall
have the meaning set forth in the Agreement, as defined in Recital C. below.
B. On November 2, 2015, City and the Initial Buyer Party entered into a First
Amendment to the Original Agreement to extend the Due Diligence Period an additional 30 days
to allow Buyer time for further analysis (the "First Amendment").
C. On November 24, 2015, City and the Initial Buyer Party entered into a Second
Amendment to the Original Agreement, as amended, to set forth the terms and conditions of a
modified project that allows for residential development, including a revised Development
Agreement Term Sheet (the "Second Amendment"). The Original Agreement, as modified by
the First and Second Amendments, may be referred to herein as the "Agreement."
D. The Initial Buyer Party subsequently assigned its interests in the Agreement to
MJW Investments, Inc., who subsequently assigned its interests in the Agreement to Buyer.
E. Buyer and City now desire to amend the Agreement a third time to: (1) remove
the City's right to repurchase the Property; (2) amend the description of the Property to add an
additional 0.1 acres; (3) amend Buyer's conditions to close to require a grading permit, rather
than a building permit, and a construction deed of trust; and (4) amend the Development
Agreement Term Sheet to set forth the terms by which the Buyer will construct the Martin
Avenue improvements.
F. The City Council of the City of Rohnert Park duly authorized the execution of this
Third Amendment by resolution adopted on , 2016.
OAK #4843-8194-5898 Q
AGREEMENT
Recital A is amended to delete the reference to 12.25 acres and replace it with 12.35
acres.
2. Section 2.2(f) is hereby deleted in its entirety and replaced with the following:
"(f) Buyer shall be prepared to obtain a grading permit and to construct the Hotel
immediately upon close of escrow, as demonstrated by an agreement between Buyer and a hotel
operator or franchise, a construction contract between Buyer and a contractor ready to begin
construction of the Hotel, and a construction deed of trust documenting the loan to Buyer of
funds necessary to begin construction."
3. The last sentence of Section 4. 1, regarding Seller's right to repurchase, is hereby deleted
in its entirety.
4. The first sentence of Section 7.1 is hereby deleted and replaced with the following: "The
failure by any party to perform any obligation under this Agreement or the Development
Agreement, if the failure has continued for a period of thirty (30) days after the other party
demands in writing that the defaulting party cure the failure, shall be deemed a default
hereunder."
5. Section 7.3 is hereby deleted in its entirety.
6. Exhibit A, Legal Description of the Property, is deleted in its entirety and replaced with
Exhibit A-1, attached hereto and incorporated herein by this reference.
7. Exhibit B, Development Agreement Term Sheet, is deleted in its entirety and replaced
with Exhibit B-2, attached hereto and incorporated herein by this reference.
8. Exhibit C, Grant Deed, is hereby deleted in its entirety and replaced with Exhibit C-1,
attached hereto and incorporated herein by this reference.
9. Except as hereby amended by this Third Amendment, the Agreement, as amended by the
First and Second Amendments, remains in full force and effect.
[SIGNATURES ONFOLLOWING PAGE]
OAK #4843-8194-5898 v2
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment as of
the Effective Date.
SELLER:
City of Rohnert Park
Dated: 2016 By:
Gina Belforte, Mayor
LOW
APPROVED AS TO FORM:
Michelle Marchetta Kenyon, City Attorney
BUYER:
STADIUM RP DEVELOPMENT PARTNERS, LLC, a
California limited liability corporation
Dated: , 2016 By:
Name
Its:
Matthew J. Waken
Manager
OAK #4843-8194-5898 v2 3
EXHIBIT A-1
EXHIBIT A
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APN 103-000...120
CITY PARCEL
ARV 113-000-124
H/N£BAUGH CREEK
0 200 500
BAfM OF 8W-6JfflNCW3
BEING SOUTH 69"34'00" EAST BETWEEN FOUND 3" BRASS
DISKS IN MONUMENT WELLS ALONG BUSINESS PARK DRIVE
8046,11-E= 1" - 200,
MARKING THE EASTERLY END OF A 250' RADIUS CURVE
AND THE CENTERLINE INTERSECTION WITH REDWOOD DRIVE
THIS EXHIBIT IS FOR GRAPHIC
AS SHOWN ON THE MAP ENTITLED ROHNERT BUSINESS
PURPOSES ONLY. ANY ERRORS OR
PARK SUBDIVISION, FILED FOR RECORD IN BOOK 375 OF
OMISSIONS SHALL NOT AFFECT THE
MAPS. PAGES 10 AND 11 SONOMA COUNTY RECORDS.
DEED DESCRIPTION.
OWNER AND
PROPERTY ACQUISIMON
CITY OF ROHNERT PARK
MAILING ADDRESS
CITY OF ROHNERT PARK
CITY OF ROHNERT PARK
6750 COMMERCE BLVD.
ROHNERT PARK, CA 94928
12.32 ACRES
TO
707 588-2234
MJW INVESTMENTS, LLC
A.P. No. 143-040-124
PROPERTY ACQUISITION DEED
SCALE: 1"-200' DATE: 11-15-16
1 r)Vft 2M APPR0YM I FllE NO.
CHK. AB R -
DOC, NO. 2001-173231
DOC. NO,
OAK #4843-8194-5898 v2 Exhibit A-1
EXHIBIT B-2
DEVELOPMENT AGREEMENT TERM SHEET
Development Agreement ("DA") between the City of Rohnert Park ("City") and 356
Advisors, Inc. and MJW Investments, LLC (together the "Buyer") concerning the development
of certain real property consisting of 12.25 acres and located at Labath Avenue and Carlson
Avenue in the City of Rohnert Park ("Property").
1. Purpose of Agreement. The purpose of the DA is to set forth (a) Buyer's vested rights to
develop and construct (i) an up to 300 -room select service and/or suite hotel(s); and (ii) a
separate retail, commercial, residential (up to 135 apartments or such lower amount as can be
adequately parked and meet any other established City requirements in existence at the time of
this Amendment), or office component in addition to the hotel (collectively, the "Project") in
accordance with the general plan, land use designation and zoning in place as of the date of the
Agreement, (b) Buyer's obligations to phase the Project to ensure the hotel is constructed prior to
or simultaneously with retail/commercial development, and (c) Buyer's obligation to construct
and/or fund certain required public improvements.
2. Term. The term would be five years commencing on the effective date of the DA, with
one possible two-year extension, which may be approved in City's reasonable discretion if Buyer
has made progress toward constructing the Project.
3. Development. The Project would be developed in accordance with the general plan
designation and zoning currently in place and the following approvals to be obtained by the
Buyer concurrently with approval of the DA: (a) Conditional Use Permit; (b) Site Plan and
Architectural Review; and (c) a Tentative Subdivision Map, as described in Section 4 below (the
"Project Approvals"). The permitted uses, density and intensity of development and maximum
height and size of proposed buildings shall all be in accordance with the Project Approvals,
including any mutually agreed upon amendments.
4. Tentative Subdivisioti Maggi. Buyer would submit an application and undertake necessary
actions to seek the approval of a Tentative Subdivision Map splitting the Property into 5 lots,
including (a) the southern 2.9 -acre portion to be retained by City; (b) the portion to be used for
the park as described in Section 8(d) of this Exhibit; (c) the portion on which the hotel will be
developed; (d) the portion on which the retail component will be developed; and (e) the portion
on which the residential portion will be developed.
Phasing. Buyer would agree to certain milestones for development as follows:
(a) Buyer would obtain a building permit to construct the hotel prior to, or in
concurrence with, issuance of a building permit for any other development on the Property,
including any residential development.
(b) Buyer would commence construction of the hotel prior to, or in concurrence with,
commencement of construction of any other development on the property, but no later than three
years from the Effective Date of the Purchase and Sale Agreement for the Buyer's purchase of
OAK H4843-8194-5898 Q Exhibit B-2-1
the Property, subject to force majeure as defined in Section 8.20 of the Purchase and Sale
Agreement.
(c) Buyer would complete construction of the hotel and obtain a certificate of
occupancy within 18 months of commencement of construction, subject to force majeure as
defined in Section 8.20 of the Purchase and Sale Agreement.
6. CEQA. Buyer will comply with all mitigation measures in the Stadium Area Master Plan
EIR and Mitigation Monitoring and Reporting Plan (MMRP). Buyer shall comply with all
additional mitigation measures imposed as a result of the Project -level CEQA process.
7. Vested Rights. City would grant Buyer the vested right to develop and construct the
Project, in accordance with the City general plan and zoning in place as of the effective date and
the Project Approvals, except for:
(a) New City laws and regulations regarding procedural matters, such as hearing
bodies, appeals and applications, provided such laws and regulations are uniformly applied on a
city-wide basis to all substantially similar types of development projects and properties;
(b) New City laws and regulations that revise the City's uniform construction codes,
and that are in effect at the time of permitting, provided such laws and regulations are uniformly
applied on a city-wide basis to all substantially similar types of development projects and
properties;
(c) New City laws and regulations that are necessary to protect physical health and
safety of the public or do not conflict with the DA or Project Approvals, provided such laws and
regulations are uniformly applied on a city-wide basis to all substantially similar types of
development projects and properties; and
(d) Changes to the law mandated by State or Federal Law, as provided in
Government Code section 65869.5.
Benefits to City.
(a) Buyer would agree to construct to City standards and specifications and/or
dedicate the following improvements for public use within the noted time -frames:
(i) Final 1/3 of Carlson Avenue improvements, including curb, gutter,
sidewalk and 16 -foot wide of travelway to provide an ultimate curb -to -curb width of 48 feet,
prior to occupancy of first development project;
(ii) Sidewalk along Dowdell Avenue frontage, prior to occupancy of first
development project;
(iii) Labath Avenue northbound right -turn lane at Martin Avenue widening and
improvements (or as determined by a traffic study), prior to occupancy of first development
project;
OAK #4843-8194-5898 v2 Exhibit B-2-2
(iv) Storm drain outfall into Hinebaugh Creek (design, permitting, and
construction), as shown on the Stadium Lands approved tentative map, prior to occupancy of
first development project;
(v) 12 -inch water main in Redwood Drive between Hinebaugh Creek PRV
vault to Martin Avenue, prior to occupancy of first development project; and
(vi) Site irrigation connected to existing recycled water system within Labath
Avenue and/or Dowdell Avenue at a date to be determined.
(b) Buyer would agree to construct to City standards and specifications the Martin
Avenue improvements, including curb, gutter, and sidewalk to provide an ultimate curb -to -curb
width of 42 to 55 feet, as illustrated in Attachment 1, prior to occupancy of the first development
project, with City to fund the half -width of the improvements adjacent to the property to be
retained by City, as illustrated in Attachment 1.
(c) Buyer would contribute its proportionate share, based on anticipated water usage
by the Project, estimated cost of $110,000, toward a water storage tank located on the west side
of the City prior to issuance of first building permit.
(d) Buyer would enter into a Storm Water Maintenance Agreement to address long-
term maintenance of on-site stonn drainage and water quality features within the City.
(e) Buyer would design, construct and dedicate to City a public park of at least 0.65
acres in a location on the Property, as approved by the City. The total cost of the parkland and
improvements shall equal $788,000, with the land valued at $583,673 per acre, as verified by the
City with supporting documentation by Buyer. In the event that the Buyer's total costs are lower
than $788,000, the difference between $788,000 and the actual costs would be paid by Buyer to
City prior to the issuance of the first certificate of occupancy for the Project.
(f) Buyer would pay an annual assessment of $800 per residential unit constructed on
the Property, to be adjusted annually in accordance with the Consumer Price Index, to the City
with such obligation to be documented in an instrument recorded against the Property. Buyer
may consider an alternative financing mechanism to fund the annual assessments and City will
work in good faith with Buyer to establish such a mechanism, if legally supportable, subject to
City approval. The recorded instrument or financing mechanism shall be in place or established
prior to the issuance of the first building permit.
(g) Buyer would contribute $50,000 toward the creation of affordable housing in the
City, with such payment due prior to the issuance of the first building pen -nit.
9. Fees, Taxes, Reimbursements and Assessments.
(a) Impact Fees. Buyer would pay impact fees in place at the time the Development
Agreement is executed, at the rate then in effect as shall be increased based upon the
Construction Cost Index from the Engineering News Report.
OAK #4843-8194-5898 Q Exhibit B-2-3
(b) 'faxes and Assessments. City could impose and Buyer would pay any new,
increased or modified taxes or assessments, provided such taxes or assessments are equally
applied on a city-wide basis and have a uniform effect on a broadly-based class of land, projects
or taxpayers, as applicable, within the City.
(c) Processing and Consultant Fees. Buyer would pay all reasonable processing fees
imposed by the City to cover the actual costs to City of processing applications for the Project
Approvals, as such fees are uniformly applied, at the rate in effect at the time of application.
Buyer would also pay all reasonable, out-of-pocket costs of City of engaging third -parties
consultants as City may deem reasonably necessary to process such applications.
(d) Reimbursements. Buyer will have no obligations under the COSTCO
Reimbursement Agreement as City will provide funding from the proceeds of the sale of the
Property. Buyer shall pay the developer of the Reserves site the amount of $62,995, as set forth
in the Reimbursement Agreement for the Reserves project, and provide City with proof of
payment prior to or at issuance of the first building permit or grading permit for the Project.
Buyer shall also pay Redwood Equities Investments the amount of $83,585.35, as determined by
the Reimbursement Agreement for the Stadium Lands Master Plan Environmental Impact Report
and provide City with proof of payment prior to or at issuance of the first building permit or
grading permit for the Project.
10. General Provisions.
(a) Assignments. Assignments of Buyer's rights and obligations under the DA would
be subject to City's review and approval, in City's reasonable discretion which will not be
unreasonably withheld. Any assignment, other than reasonable financing requirements, would
be documented by an assignment and assumption agreement in a form reasonably acceptable to
City.
(b) Remedies/Default/Termination. The DA would include standard provisions for
notice of default and opportunity to cure. In the event of default by City, the only remedy would
be specific performance of the terms and provisions of the DA. In event of default by Buyer, the
primary remedy would be specific performance of the terms and provisions of the DA. A claim
for actual monetary damages would only be considered if specific performance is not granted by
a court. In no event would either party be entitled to any consequential, punitive or special
damages. City and Buyer would be required to follow the procedures set forth in Government
Code sections 65867 and 65868, with a hearing before the City Council, prior to termination of
the DA. In the event of termination, the only surviving provisions would be the Buyer's
indemnification of City. A default under the Development Agreement would also be a default
under the Purchase and Sale Agreement, by which the Property is transferred, and a default
under the Purchase and Sale Agreement would also be a default under the Development
Agreement.
(c) Indemnity. Buyer would defend, indemnify and hold harmless the City, with
legal counsel reasonably acceptable to the City Attorney, in any action brought by a third party
to challenge the DA, including the related environmental review. In addition, Buyer would
OAK #4843-8194-5898 v2 Exhibit B-2-4
defend, indemnify and hold harmless the City for any claims arising out of the development and
construction of the Project.
(d) Annual Review. Buyer would provide City with annual written documentation
demonstrating good faith compliance with the terms of the Development Agreement. If the City
determines that Buyer has not complied in good faith, the Buyer shall have 30 days from written
notice of default to cure the default, otherwise the City may terminate the DA in accordance with
Government Code section 65865.1.
(e) Application Approval. City's signature on planning applications as property
owner shall not grant approval of applications. City retains its full discretionary authority
regarding approval of planning and other land use approvals regardless of signature by City as
property owner on such applications.
OAK #4843-8194-5898 v2 Exhibit B-2-5
HOTEL
PARCEL 3
Attachment 1
Depiction of Martin Avenue Improvements
EXHIBIT B-2
ATTACHMENT 1
PORTION TO. BE CITY LANDS
REIM§0k§ED 81' CITY PARCEL 5
19' 15' 13' I3'
5.5' 0.50' P T T PO.
50' 4.5'
SWTFUTURSW
2X�
AC V
CURB & FALL CL 2 AB
AWAY GUTTER CURB & GU
MAR'nN AVENUE PER CITY STD
PRVATE STREET SEOMON
ALONG CITY -PARCEL 5 FRONTAGE
NO SCALE
'll
RESIDENTIAL - PARCEL 2
i
+C
HOTEL - PARCEL 3
i RETAIL - PARCEL 4
CITY - PARCEL 5
--PORTION OF
MARTIN AVE.
TO BE REIMBURSED
BY CITY
f
\,--PORTION OF MARTIN AVE.
TO BE FUNDED SOLELY
BY DEVELOPER
PL -AN
SCALE: 1'=200'
LE__G1EN[7
j PORTION OF MARTIN AVE.
TO BE REIMBURSED BY CITY O 200 500
PORTION OF MARTIN AVE. TO BE
FUNDED SOLELY BY DEVELOPER
NOVEMBER 2016 SCA -Yy 1 200'
OAK #4843-8194-5898 v2 Exhibit B-2-6
EXHIBIT C-1
FORM OF GRANT DEED_
RECORDING REQUESTED BY
Title Insurance Company
AND WHEN RECORDED MAIL TO:
Attention:
(Space Above This Line for Recorder's Use Only)
[Exempt from recording fee per Gov. Code § 273831
GRANT DEED
For valuable consideration, the receipt of which is hereby acknowledged, the CITY OF
ROHNERT PARK, a California municipal corporation ("Grantor"), hereby grants to
STADIUM RP DEVELOPMENT PARTNERS, LLC, a California limited liability corporation
(collectively, "Grantee"), all of Grantor's right, title, and interest in the real property described
in Atfaclmienl I attached hereto and incorporated herein ("Property").
GRANTOR:
City of Rohnert Park
Dated: .201 By;
ATTEST:
By: _.
/FORM —Do NOT EXECUTE]
, Mayor
[signature must be notarized]
City Clerk
APPROVED AS TO FORM:
In
, City Attorney
EXHIBIT C-1
OAK #4825-3884-0612 v9