2017/01/24 City Council Ordinance 903ORDINANCE NO. 903
AN ORDINANCE OF THE CITY OF ROHNERT PARK, CALIFORNIA, APPROVING
OF A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF ROHNERT PARK
AND STADIUM RP DEVELOPMENT PARTNERS, LLC, FOR DEVELOPMENT OF
THE RESIDENCES AT FIVE CREEK PROJECT (APN 143-040-124)
WHEREAS, Government Code § 65864, et seq., authorizes the City of Rohnert Park to
enter into development agreements which will provide certainty, definition and commitment to
developers as well as to necessary public improvements required by development; and
WHEREAS, MJW Investments, LLC, filed Planning Application No. PLDV2016-0001
proposing a General Plan Amendment, amendment to the Stadium Area Master Plan (a Planned
Development), adoption of a Final Development Plan (including a related Conditional Use Permit),
and a Development Agreement and Planning Application No. PLEN 2016-0003 for the related
certification of a Mitigated Negative Declaration ("MND") and Planning Application No.
PLSD2016-0001 proposing a Tentative Map for a proposed project on a 15.30 acre parcel located
at 5900 Labath Avenue, APN 143-040-124 (the "Project"), in accordance with the City of Rohnert
Park Municipal Code ("RPMC"); and
WHEREAS, MJW Investments, LLC, executed an Assignment Agreement on May 17,
2016 and assigned all of its rights, duties, and obligations concerning the Project to Stadium RP
Development Partners, LLC ("Developer"); and
WHEREAS, in connection with the Property, Developer and City Staff have negotiated a
proposed development agreement ("Development Agreement") in accordance with the requirements
of Government Code § 65864, et seq., and Chapter 17.2 1, "Development Agreement Procedure," of
the RPMC, for the Project. The Development Agreement negotiated by the Developer and the City
is attached to this Resolution as A; and
WHEREAS, the Development Agreement, among other things, sets forth the effective date
and term of the agreement, applicable fees, applicable rules, regulations, and policies, required
infrastructure improvements, affordable housing obligations, prevailing wage rules, provisions on
amendments, annual review and default, and other miscellaneous provisions; and
WHEREAS, the Planning Commission reviewed the MND prepared for the project;
recommended its certification by the City Council; and has otherwise carried out requirements for
the project pursuant to CEQA; and
WHEREAS, pursuant to California State Law and the RPMC, public hearing notices were
mailed to all property owners within an area exceeding a three hundred foot radius of the subject
property and a public hearing was published for a minimum of 10 days prior to the first public
hearing in the Community Voice; and
1
Ord. 903
WHEREAS, on December 8, 2016, the Planning Commission held a public hearing which
was continued to December 22, 2016, at which time interested persons had an opportunity to testify
either in support or opposition to the proposal; and
WHEREAS, On December 22, 2016, the Planning Commission voted 4-0, to recommend
to the City Council approval of the Development Agreement attached hereto; and
WHEREAS, on January 10, 2017, the City Council held a public hearing at which time
interested persons had an opportunity to testify either in support or opposition to the proposed
Development Agreement; and
WHEREAS, the City Council has reviewed and considered the information contained in
proposed Development Agreement.
NOW, THEREFORE, the City Council of the City of Rohnert Park does hereby ordain as
follows:
SECTION 1. Findings for Adoption of Development Agreement
The City Council has reviewed Planning Application No. PLDV2016-0001, Development
Agreement for the Residences at Five Creek and the proposed Development Agreement and hereby
makes the following findings:
A. A duly noticed public hearing regarding the Development Agreement was held by the
City Council on January 10, 2017, in conformance with the notice provisions of
Government Code §§ 65090 and 65091 and the requirements of the RPMC.
B. The applicant has proposed amendments to the General Plan and related land use
entitlements for the Project which the Planning Commission has concurrently reviewed
and considered in conjunction with its review of the Development Agreement. The
proposed Development Agreement (attached hereto as Exhibit A} is consistent with the
General Plan, as amended, and would direct the Project's development in an orderly
manner that benefits the City.
C. Pursuant to RPMC Section 17.21.040, the following factors have been taken into
consideration, as applicable, with respect to the Development Agreement: other pending
applications and approved projects; the traffic, parking, public service, visual, and other
impacts of the proposed development project upon abutting properties and the
surrounding area; ability of the applicant to fulfill public facilities financing plan
obligations; the relationship of the project to the city's growth management program; the
provisions included, if any, for reservation, dedication, or improvement of land for public
purposes or accessible to the public; the type and magnitude of the project's economic
effects to the city of Rohnert Park; and the contribution if any toward meeting the city's
housing needs.
Ord. 903
D. The City Council approved the Mitigated Negative Declaration for this Project
concurrently with the City Council's approval of this Ordinance.
SECTION 2. Adoption of Development Agreement
The City hereby adopts the Development Agreement in substantially similar form as attached
hereto and incorporated herein as Exhibit A.
SECTION 3. Compliance with State Law
A. The City will act in accordance with the provisions of Government Code §§ 65856(e)
and 66006.
B. In accordance with Government Code §§ 65868.5, no later than 10 days after the
City enters into the Development Agreement, the City Clerk will record the Development
Agreement with the County Recorder.
C. In accordance with Government Code § § 65865.1 and RPMC Section 17.21.050(A),
the City will conduct an annual review of the Development Agreement, as amended by the
Development Agreement, to ensure compliance with the terms.
SECTION 4. Severability
The City Council hereby declares that every section, paragraph, sentence, clause, and phrase
of this ordinance is severable. If any section, paragraph, sentence, clause or phrase of this ordinance
is for any reason found to be invalid or unconstitutional, such invalidity, or unconstitutionality shall
not affect the validity or constitutionality of the remaining sections, paragraphs, sentences, clauses,
or phrases.
SECTION 5. Effective Date.
This ordinance shall be in full force and effective 30 days after its adoption, and shall be
published and posted as required by law.
[THE REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY.]
Ord. 903
This ordinance was introduced on January 10, 2017, and adopted by the Council of the City
of Rohnert Park on January 24, 2017, by the following roll call vote:
AYES:Five (5) Councilmembers Ahanotu, Belforte, Callinan, Stafford and
Mayor Mackenzie
NOES: None (0 )
ABSENT: None (0 )
ABSTAIN: None (0 )
CITY OF ROHNEI ARK ,f
!/
Jake M. kenzie, Mayor
ATTEST:
Anne Buergler, City Clerk
*�helle
O
enyon, City Attorney
Attachment: Exhibit A RECOMMENDED DEVELOPMENT AGREEMENT
I, JOANNE BUERGLER, CITY CLERK of the City of Rohnert Park, California, do hereby
certify that the foregoing Ordinance was duly adopted and passed at a regular meeting of the City
Council on the 24th day of January, 2017 by the following vote:
AYES: Five (5) Councilmembers Ahanotu, Belforte, Callinan, Stafford and
NOES: None (0) Mayor Mackenzie
ABSENT: None (0 )
ABSTAIN: None (0 )
)A'nLiieBuergler, City Clerk
4
Ord. 903
Exhibit A
RECORD WITHOUT FEE
PURSUANT TO GOVERNMENT CODE § 6103
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
CITY OF ROHNERT PARK
CITY CLERK'S OFFICE
130 AVRAM AVENUE
ROHNERT PARK, CALIFORNIA 94928
SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY
DEVELOPMENT AGREEMENT
by and between
THE CITY OF ROHNERT PARK,
a California municipal corporation,
and
STADIUM RP DEVELOPMENT PARTNERS, LLC,
a California limited liability company
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TABLE OF CONTENTS
Page
1.
DEFINITIONS...................................................................................................................3
2.
EFFECTIVE DATE AND TERM.....................................................................................
6
2.1
Effective Date........................................................................................................
6
2.2
Term........................................................................................................................
6
2.3
Expiration............................................................................... .............................7
2.4
Developer Representations and Warranties...........................................................
7
3.
DEVELOPMENT OF THE PROPERTY..........................................................................
7
3.1
Vested Rights..............................................................................._..........................
7
3.2
Applicable Law......................................................................................................
7
3.3
Development Timing.............................................................................................
8
3.4
Regulation by Other Public Agencies....................................................................
9
3.5
Life of Project Approvals ................................................
9
3.6
Developer's Right to Rebuild................................................................................
9
3.7
State and Federal Law............................................................................................ 9
4.
DEVELOPMENT STANDARDS...................................................................................
10
4.1
Compliance with State and Federal Law.............................................................
10
4.2
Prevailing Wage Requirements .................................
4.3
Sale Tax Point of Sale Designation.....................................................................
11
5.
FEES
AND EXACTIONS................................................................I..............................
11
5.1
Development Fees, Taxes and Exactions............................................................
11
5.2
Impact Fees..........................................................................................................
11
5.3
Processing Fees ......................................................... .................... ,.......................
11
5.4
Taxes and Assessments........................................................................................
11
5.5
Consultant Fees........................................................... ........................... .-............
11
5.6
Obligations Under Previous Agreements .....................
5.7
Purchase of GHG Emission Offset Credits..... ......................................................
12
6.
BENEFITS TO CITY......................................................................................................
12
6.1
Hotel Development...............................................................................................
12
6.2
Public Improvements...........................................................................................
12
6.3
Storm Water Maintenance Agreement.................................................................
13
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TABLE OF CONTENTS
(continued)
Page
6.4
Public Park...........................................................................................................
13
6.5
Public Service Payment.......................................................................................
14
6.6
Funding for Affordable Housing.........................................................................
14
T COOPERATION AND IMPLEMENTATION...............................................................
14
7.1
Subsequent Project Approvals.............................................................................
14
7.2
Processing Applications for Subsequent Project Approvals............ ....................
14
7.3
Changes and Amendments to Project Approvals .................................................
15
7.4
Amendment of this Agreement..............................................................................
16
7.5
Mitigation Measures............................................................................................
16
7.6
Cooperation in the Event of Legal Challenge.......................................................
17
7.7
Indemnity and Hold Harmless.............................................................................
17
8, DEFAULT AND REMEDIES.........................................................................................
17
8.1
Breach..................................................................................................................
17
8.2
Default..................................................................................................................18
8.3
Withholding of Permits........................................................................................
18
8.4
Remedies..............................................................................................................18
8.5
Periodic Review...................................................................................................
19
8.6
Enforced Delay; Extension of Time of Performance ...........................................
20
8.7
Resolution of Disputes.........................................................................................
20
8.8
Termination..........................................................................................................20
9. MORTGAGEE
PROTECTION; CERTAIN RIGHTS OF CURE ..................................
21
9.1
Mortgagee Protection...........................................................................................
21
9.2
Mortgagee Obligations............................................................................._...........
21
9.3
Notice of Default to Mortgagee...........................................................................
21
10. ASSIGNABILITY
...........................................................................................................22
10.1
Assignment by Developer...................................................................................
22
10.2
Covenants Run With The Land............................................................................
22
10.3
Pre -Approved Transfers.......................................................................................
23
10.4
Non -Assuming Transferees........................................._.....................
10.5
Foreclosure...........................................................................................................23
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TABLE OF CONTENTS
(continued)
GENERAL.._.......................................................
11.1 Controlling Law ......................................
11.2 Construction of Agreement .....................
11.3 No Waiver ...............................................
11.4 Agreement is Entire Agreement ..............
11.5 Estoppel Certificate .................................
11.6 Further Documents .................................
11.7 Time of Essence .....................................
11.8 Construction ...........................................
11.9 Notices ...................................................
11.10 Developer is an Independent Contractor
11.11 No Joint Venture ....................................
11.12 Nondiscrimination ..................................
11.13 No Third Party Beneficiary ....................
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Page
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................. .1...11.1. ......... ......... 24
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........................................1111... 24
................... 24
............................... 24
........I ................... 24
...................................................... 24
...............111.1................. 25
......................................... 25
..................... I .............. .... ...... 25
..... ............... I ... I ................ ..... 26
DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT ("Agreement") is entered into as of the Effective
Date by and between CITY OF ROHNERT PARK ("City"), a California municipal corporation,
and STADIUM RP DEVELOPMENT PARTNERS, LLC, a California limited liability company
(the "Developer"), concerning the development of certain real property consisting of 12.32 acres
and located at Labath Avenue and Carlson Avenue in the City of Rohnert Park. City and
Developer may each be referred to as a "Party," and collectively the "Parties".
RECITALS
Developer and City enter into this Agreement on the basis of the following facts,
understandings and intentions, and the following recitals are a substantive part of this
Agreement:
A. Sections 65864 through 65869.5 of the California Government Code
("Development Agreement Statute") authorize the City to establish procedures to enter into
binding development agreements with persons having legal or equitable interests in real property
located within the City for the development of property.
B. Developer and City are parties to that certain Agreement for Purchase and Sale
(Including Joint Escrow Instructions) and Terms of Development dated August 11, 2015, as
amended, (the "Purchase Agreement") with respect to Developer's purchase from City and
development of that certain real property of approximately 12.32 acres in size, as further
described in Exhibit A, attached hereto and incorporated by this reference (the "Property"). As
Developer is under contract to purchase the Property, Developer has an equitable interest in the
Property. The Purchase Agreement is incorporated in this Agreement by reference as if fully set
forth herein.
C. The Purchase Agreement requires that Developer obtain the land use approvals,
including a development agreement for the development of an (i) up to 300 -room select sei vice
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), or office component in addition to the hotel. Further, the Purchase Agreement
requires that this Agreement set forth Developer's obligation to phase its development to ensure
the hotel is constructed prior to or simultaneously with the retail/commercial/residential
development and Developer's obligation to construct and/or fund certain required public
improvements.
D. Developer, with City's consent and in accordance with the terms of the Purchase
Agreement, has submitted applications to the City for a General Plan Amendment, an
Amendment to Stadium Area Master Plan, a Final Development Plan, a Tentative Parcel Map, a
Development Agreement and a Conditional Use Permit to develop (1) a hotel with no less than
132 rooms and categorized as Upscale (as defined in Section 1 below) or higher ("Hotel"), (2)
up to 135 multi -family dwelling residential units, on the Property (the "Residential
Component"); and (3) a commercial and retail development complex (the "Retail Component";
and collectively with the Hotel and the Residential Component, the "Project"). The
OAK 44834-2306-3595 vi 1
applications, plus further applications for approvals necessary or convenient to develop the
Property are in furtherance of the terms of the Purchase Agreement and the request by Developer
to be allowed to develop the Property with the Project.
E. Through this Agreement, the Parties intend to preserve the size and density of
development as set forth in the Project Approvals, as defined below. City and Developer each
acknowledge that development and construction of the Project is a large-scale undertaking
involving major investments by Developer and City, and assurances that the Project can be
developed and used in accordance with the Purchase Agreement and the terms and conditions set
forth herein and the existing rules governing development of the Property will benefit both
Developer and City.
F. This Agreement will eliminate uncertainty in the comprehensive development
planning of the Project and provide that the Property may be developed, constructed, completed
and used pursuant to this Agreement, and in accordance with existing policies, rules and
regulations of the City, subject to the exceptions and limitations expressed herein. Further this
Agreement will (i) secure orderly development, including the development of a hotel, and fiscal
benefits for public services, improvements and facilities planning in the City; (ii) meet the goals
of the General Plan; (iii) plan for and concentrate public and private resources for the mutual
benefit of both Developer and City; (iv) allow the City and public to obtain the benefits of public
ownership and use of the public improvements; (vi) provide for a coordinated and systematic
approach to providing certain public improvements to be provided by Developer; and (vii)
establish the timing and extent of contributions required from Developer for these purposes.
G. Prior to approval of this Agreement, City has taken numerous actions in
connection with the development of the Project on the Property. The approvals and development
actions described in this Recital G are collectively referred to herein as the "Existing Project
Approvals. " These include:
1. The environmental
impacts of the Project, including the Existing Project Approvals, have properly been
reviewed and assessed by City pursuant to the California Environmental Quality Act,
California Public Resources Code Section 21000 et seq.; California Code of Regulations
Title 14, Section 15000 et seq. ("CEQA Guidelines"); and City's local guidelines
promulgated thereunder (hereinafter collectively referred to as "CEQA"). On January
10, 2017, pursuant to CEQA and in accordance with the recommendation of City's
Planning Commission (the "Planning Commission"), the City Council of City ("City
Council") adopted an Initial Study and Mitigated Negative Declaration for the Project
("MND"). As required by CEQA, City adopted written findings and a Mitigation
Monitoring and Reporting Program ("MMRP") on January 10, 2017, pursuant to
Resolution No. 2017-8.
2. General Plan Amendment. On January 10, 2017, in accordance with the
recommendation of the Planning Commission, the City Council adopted Resolution
2017-9, amending the General Plan.
OAK #4834-2306-3595 vi 1
3. Ainend.nkent to the Stadium Area Master Plan. On January 10, 2017, in
accordance with the recommendation of the Planning Commission, the City Council
adopted Resolution No. 2017-10, approving an Amendment the Stadium Area Master
Plan, which covers the entirety of the Property as well as certain additional adjacent
property as shown in the Stadium Area Master Plan. The Amendment to the Stadium
Area Master Plan also constituted prezoning for the Property and the adjacent property in
accordance with City Municipal Code section 17.06.290.
4. Tentative Mau. On January 10, 2017, in accordance with the
recommendation of the Planning Commission, the City Council adopted Resolution No.
2017-11, approving the Tentative Map for the Property.
5. Final Development Plan and Design Guidelines. On January 10, 2017, in
accordance with the recommendation of the Planning Commission, the City Council
adopted Resolution No. 2017-10, approving the Final Development Plan and Design
Guidelines for the Property.
6. Conditional Use Permit. On January 10, 2017, in accordance with the
recommendation of the Planning Commission, the City Council adopted Resolution No.
2017-10, approving a Conditional Use Permit, subject to certain conditions of approval,
for portions of the Property.
H. Subsequent to approval of this Agreement, the City and Developer anticipate that
applications for additional approvals, entitlements, and permits related to the development and
operation of the Project will be submitted to implement the Project (the "Subsequent Project
Approvals").
AGREEMENT
NOW, THEREFORE, pursuant to the authority contained in California Government
Code section 65864, and in consideration of the mutual representations, covenants and promises
of the Parties, the Parties hereto agree as follows:
1. DEFINITIONS.
"Administrative Agreement Amendment" shall have the meaning set forth in
Section 7.4(a).
"Administrative Project Amendment" shall have the meaning set forth in
Section 6.3(a)(i).
"Agreement" shall have the meaning set forth in the introductory paragraph preceding
the Recitals.
"Applicable Law" shall have the meaning set forth in Section 3.2.
"Building Permit" means a permit issued by the City for the renovation or construction
of a building or structure, as required by the California Building, Residential, Mechanical,
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Electrical, Plumbing, Green Building, Fire or Energy Standard Codes, as adopted by the City and
incorporated in the Rohnert Park Municipal Code by reference, excluding a permit to commence
grading issued under Chapter 15.50 of the Rohnert Park Municipal Code.
"CEQA " shall have the meaning set forth in Recital G.
"CEQA Guidelines " shall have the meaning set forth in Recital G.
"Changes in the Law" shall have the meaning set forth in Section 3.7.
"Cure Period" shall have the meaning set forth in Section 7.1.
"City" shall have the meaning set forth in the introductory paragraph preceding the
Recitals.
"City Council " shall have the meaning set forth in Recital G.
"City Manager" means the City Manager of the City or his/her designee.
"Commence Construction " shall be deemed to have occurred when the Developer has
begun vertical construction as evidenced by an approved foundation City inspection and such
date shall be memorialized in writing by the Parties.
"Consultant Fees " shall have the meaning set forth in Section 5.5.
"Default" shall have the meaning set forth in Section 7.2.
"Developer" means Stadium RP Development Partners, LLC, a California limited
liability company, and its permitted successors and assigns.
"Development Agreement Statute " shall have the meaning set forth in Recital A.
"Director" means the Development Services Director of the City.
"Effective Date " shall have the meaning set forth in Section 2.1.
"Existing Project Approvals " shall have the meaning set forth in Recital G.
"Extended Cure Period" shall have the meaning set forth in Section 7.1.
"Extended Term" shall have the meaning set forth in Section 2.2(b).
"Federal/State Compliance Fees " shall have the meaning set forth in Section 5.4.
"Grading Permit" means a permit to commence grading issued by the City under
Chapter 15.50 of the Rohnert Park Municipal Code.
"Hotel" shall have the meaning set forth in Recital D.
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"Impact Fees " shall have the meaning set forth in Section 5.2.
"Initial Term" shall have the meaning set forth in Section 2.3(a).
"Major Agreement Amendment" shall have the meaning set forth in Section 7.4(b).
"MMRP" shall have the meaning set forth in Recital G.
"MND " shall have the meaning set forth in Recital G.
"Mortgage" shall have the meaning set forth in Section 8.1.
"Mortgagee" shall have the meaning set forth in Section 8.1.
"New City Laws" shall mean City's laws, rules, regulations, official policies, standards
and specifications, including those enacted or imposed by a citizen -sponsored initiative or
referendum or by the City Council directly or indirectly in connection with any proposed
initiative or referendum, in each case to the extent amended or otherwise imposed following the
Effective Date.
"Non -administrative Project Amendment" shall have the meaning set forth in
Section 6.3(a)(11).
"Official Policy" shall mean a policy that is approved in accordance with the City's
normal practice for adopting policies, that is in writing, and that was adopted prior to the
Effective Date of this Agreement or that is approved by the City Council and consistent with
federal, state or local laws.
"Party/Parties " shall have the meaning set forth in the introductory paragraph preceding
the Recitals of this Agreement.
"Planning Commission " shall have the meaning set forth in Recital G.
"Prevailing Wage Laws " shall have the meaning set forth in Section 4.2(a).
"Processing Fees " shall have the meaning set forth in Section 5.3.
"Project" shall have the meaning set forth in Recital D.
"Project Approvals " means the Existing Project Approvals and any approved Subsequent
Project Approvals.
"Property" shall have the meaning set forth in Recital B.
"Purchase Agreement" shall have the meaning set forth in Recital B.
"Residential Component" shall have the meaning set forth in Recital D.
"Retail Component" shall have the meaning set forth in Recital D.
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"Service Payment" shall have the meaning set forth in Section 6.5(a).
"Subsequent Project Approvals " shall have the meaning set forth in Recital K.
"Subsequent Discretionary Approvals " means all other Subsequent Project Approvals
other than Subsequent Ministerial Approvals, including amendments of the Project Approvals,
improvement agreements, architectural review permits, use permits, lot line adjustments,
subdivision maps, rezonings, development agreements, permits that are not Subsequent
Ministerial Approvals, resubdivisions, and any amendments to, or repealing of, any of the
foregoing, are Subsequent Discretionary Approvals.
"Subsequent Ministerial Approvals " means permits or approvals that are required by
Applicable Law and that are to be issued upon compliance with uniform, objective standards and
regulations. They include applications for road construction permits or authorizations; grading
and excavation permits; building permits, including electrical, plumbing, mechanical, Title 24
Electrical, and Title 24 Handicap permits or approvals; certificates of occupancy; encroachment
permits; water connection permits; and any other similar permits required for the development
and operation of the Project.
"Term" shall have the meaning set forth in Section 2.2.
"Transfer" shall have the meaning set forth in Section 9.1.
"Upscale " shall have the meaning set forth in Section 6.1.
2. EFFECTIVE DATE AND TERM.
2.1 Effective Datc. This Agreement shall become effective upon the date that the
ordinance approving this Agreement becomes effective (the "Effective Date").
2.2 Term. The term ("Term") of this Agreement shall be the Initial Term together
with any Extended Term.
(a) Initial Terre. The Term of this Agreement shall commence upon the
Effective Date and shall extend for a period of five (5) years thereafter ("Initial Term"). The
Initial Term has been established by the City and Developer as a reasonable estimate of the time
required to develop the Project, including all on- and off-site public improvements, and obtain
the public benefits of the Project.
(b) Extended Term. Provided neither City nor Developer have terminated this
Agreement and Developer has fully complied with all terms of this Agreement, Developer may
request in writing that City extend the Initial Term of this Agreement for an additional two-year
period ("Extended Term"). Such written request may be delivered to City not earlier than two
hundred seventy (270) days nor later than one hundred twenty (120) days prior to the termination
date of the Initial Term.
(c) City Review of Request for Extended Tenn. Upon receipt of such request,
City shall undertake a review of Developer's good faith compliance with the terms of this
OAK #4834-2306-3595 \,I 1
Agreement in the same manner as set forth in Section 8.5 for a periodic review of this
Agreement. Developer and City shall comply with the provisions of Section 8.5 with respect to
such review so that it can be completed prior to the expiration of the Initial Term. If Developer
has met all requirements of this Agreement and has made reasonable progress toward completing
the Project, in City's reasonable discretion, City may approve such extension. If the Initial Term
of this Agreement is extended in accordance with the provisions of this Section, City shall record
an instrument giving notice of the Extended Term and the termination date thereof.
2.3 ENpiratlon. Following the expiration of the Term, or the earlier completion of
development of the Project and all of Developer's obligations in connection therewith, this
Agreement shall be deemed terminated and of no further force and effect, subject, however, to
the provisions of Section 8.8 below.
2.4 Developer Representations and Warranties. Developer represents and warrants to
City that, as of the Effective Date:
(a) Developer has an equitable interest in the Property;
(b) The Purchase Agreement is a valid and binding obligation of Developer
and enforceable in accordance with its terms;
(c) Developer: (i) is organized and validly existing under the laws of the
State of California; (ii) to the extent required, has qualified and been authorized to do business in
the State of California and has complied with all requirements pertaining thereto; and (iii) to the
extent required, is in good standing and has all necessary powers under the laws of the State of
California to own property;
(d) No approvals or consents of any persons are necessary for the execution,
delivery or performance of this Agreement by Developer, except as have been obtained;
(e) The execution and delivery of this Agreement have been duly authorized
by all necessary corporate action; and
(f) This Agreement is a valid obligation of Developer and is enforceable in
accordance with its terms.
3. DEVELOPMENT OF THE PROPERTY.
3.1 Vested Rights. The Property is hereby made subject to the provisions of this
Agreement. Developer shall have the vested right to develop the Property and the Project in
accordance with and subject to the Existing Project Approvals, the Subsequent Project
Approvals, Applicable Law and this Agreement, which shall control the permitted uses, density
and intensity of use of the Property and the maximum height and size of buildings on the
Property.
3.2 Applicable Law. City and Developer acknowledge and agree that City is
restricted in its authority to limit its police power by contract and that the limitations,
reservations and exceptions contained in this Agreement are intended to reserve to City all of its
OAK #4834-2306-3595 v 1 7
police power that cannot be so limited. Notwithstanding the foregoing reservation of City, it is
the intent of City and Developer that this Agreement be construed to provide Developer with the
maximum rights afforded by law, including but not limited to, the Development Agreement
Statute. Therefore, the laws, rules, regulations, official policies, standards and specifications of
City applicable to the development of the Property and/or the Project shall be (collectively,
"Applicable Law"):
(a) Those rules, regulations, official policies, standards and specifications of
the City set forth in the Project Approvals and this Agreement;
(b) With respect to matters not addressed by and not otherwise inconsistent
with the Project Approvals and this Agreement, those laws, rules, regulations, official policies,
standards and specifications (including City ordinances and resolutions) governing permitted
uses, building locations, timing and manner of construction, densities, intensities of uses, heights
and sizes, and requirements for on- and off-site infrastructure and public improvements, in each
case only to the extent in full force and effect on the Effective Date;
(c) New City Laws that relate to hearing bodies, petitions, applications,
notices, findings, records, hearings, reports, recommendations, appeals and any other matter of
procedure imposed at any time, provided such New City Laws are uniformly applied on a City-
wide basis to all substantially similar types of development projects and properties;
(d) New City Laws that revise City's uniform construction codes, including
City's building code, plumbing code, mechanical code, electrical code, fire code, grading code
and other uniform construction codes, as of the date of permit issuance, provided, that such New
City Laws are uniformly applied on a City-wide basis to all substantially similar types of
development projects and properties;
(e) New City Laws that are necessary to protect physical health and safety of
the public, provided, that such New City Laws are uniformly applied on a City-wide basis to all
substantially similar types of development projects and properties; and
(f) New City Laws that do not apply to the Property and/or the Project due to
the limitations set forth above, but only to the extent that such New City Laws are accepted in
writing by Developer in its sole discretion.
3.3 Development Timing. Developer shall phase and construct the Project within the
time -frames set forth below.
(a) Developer shall obtain a Building Permit to construct the Hotel prior to, or
concurrently with, issuance of a Building Permit for any other portion of the Project, including
the Residential Component. In no event shall City issue a Building Permit for any portion of the
Project prior to the issuance of a Building Permit for the Hotel.
(b) Developer shall Commence Construction of the Hotel prior to, or
concurrently with, Commencement of Construction of any other portion of the Project, but no
later than August 11, 2018, subject to extension due to a force majeure event as set forth in
Section 3.3(d) below.
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(c) Developer shall complete construction of and obtain a certificate of
occupancy for the Hotel prior to the date that is 18 months from the Commencement of
Construction of the Hotel, subject to extension due to a force majeure event as set forth in
Section 3.3(d) below; provided, however, such 18 month time period shall be extended by the
City for up to 6 months upon the written request of Developer if, in City's reasonable
determination, Developer has made substantial progress toward completion of construction of the
Hotel prior to the expiration of such initial 18 month period.
(d) A force majeure event shall mean delay that Developer could not
reasonably have been expected to avoid and which by exercise of due diligence have been unable
to overcome caused by: acts of God, war, fire, earthquake, windstorm, flood or other natural
catastrophe, civil disturbance or disobedience, labor disputes, vandalism, sabotage, terrorism, or
restraint by order of a court or administrative agency with jurisdiction. Developer's financial
inability to perform or obtain financing or adverse economic conditions generally shall not be
grounds for claiming a force majeure event.
3.4 Regulation by Other Public Agencies. City and Developer acknowledge and
agree that other governmental or quasi -governmental entities not within the control of City
possess authority to regulate aspects of the development of the Property and the Project and that
this Agreement does not limit the authority of such other public agencies. City shall cooperate
with Developer in Developer's effort to obtain such permits and approvals as may be required by
other governmental or quasi -governmental entities in connection with the development of, or the
provision of services to, the Property and/or the Project; provided, however, City shall have no
obligation to incur any costs, without compensation or reimbursement, or to amend any City
policy, regulation or ordinance in connection therewith.
3.5 Life of Project Approvals. The term of any and all Project Approvals shall
automatically be extended for the longer of the Term or the term otherwise applicable to such
Project Approvals. Without limiting the generality of the foregoing, pursuant to the Subdivision
Map Act, any vesting or tentative maps heretofore or hereafter approved in connection with
development of the Project or the Property, shall be extended for the Term (and may be subject
to other extensions provided under the Subdivision Map Act).
3.6 Developer's Right to Rebuild. City agrees that Developer may renovate or
rebuild portions of the Project at any time within the Term should it become necessary due to
any casualty, including natural disaster or changes in seismic requirements. Such renovations or
reconstruction shall be processed as a Subsequent Project Approval consistent with all prior
Project Approvals and Applicable City Law. Any such renovation or rebuilding shall be subject
to all design, density and other limitations and requirements imposed by this Agreement, and
shall comply with the Project Approvals, Applicable City Law, and the requirements of CEQA.
3.7 State.and Federal Law. As provided in Section 65869.5 of the Development
Agreement Statute, this Agreement shall not preclude the applicability to the Project of changes
in laws, regulations, plans or policies, to the extent that such changes are specifically mandated
and required by changes in State or Federal laws or by changes in laws, regulations, plans or
policies of special districts or other governmental entities, other than City, created or operating
pursuant to the laws of the State of California ("Changes in the Law"). In the event Changes in
OAK #4834-2306-3595 vi 1
the Law prevent or preclude, or render substantially more expensive or time consuming,
compliance with one (1) or more provisions of this Agreement, the City and Developer shall
meet and confer in good faith in order to determine whether such provisions of this Agreement
shall be modified or suspended, or performance thereof delayed, as may be necessary to comply
with Changes in the Law. Nothing in this Agreement shall preclude City or Developer from
contesting by any available means (including administrative or judicial proceedings) the
applicability to the Project any such Changes in the Law. If Changes in the Law preclude or
substantially prevent or preclude, or render substantially more expensive or time consuming,
performance of this Agreement in a manner that makes the Project economically infeasible,
Developer, in its sole and absolute discretion, may terminate this Agreement by providing
written notice thereof to City.
4. DEVELOPMENT STANDARDS.
4.1 Coznpliance with State and Federal Law. Developer, at its sole cost and expense,
shall comply with requirements of, and obtain all permits and approvals required by, regional,
State and Federal agencies having jurisdiction over the Project.
4.2 Prevailing Wage requirements.
(a) Developer acknowledges and agrees that all improvements paid for
directly or indirectly with public funds will constitute construction, alteration, demolition,
installation, or repair work done under contract and paid for in whole or in part out of public
funds as provided under California Labor Code Section 1720. Accordingly, if and to the extent
applicable, Developer shall comply with, and cause its contractors and subcontractors to comply
with, all State Labor Code requirements and implementing regulations of the Department of
Industrial Relations pertaining to "public works" (collectively, "Prevailing Wage Laws").
Developer shall require the contractor for the Project or any portion thereof involving any such
publicly financed improvements, to submit, upon request by City or County, as applicable,
certified copies of payroll records to City, and to maintain and make records available to City
and its designees for inspection and copying to ensure compliance with Prevailing Wage Laws,
as applicable. Developer shall also include in each of its contractor agreements with respect to
any such publicly financed improvements, a provision in form acceptable to City, obligating the
contractor to require its contractors and/or subcontractors to comply with Prevailing Wage Laws,
as applicable, and to submit, upon request by City, certified copies of payroll records to City and
to maintain and make such payroll records available to City and its designees for inspection and
copying during regular business hours at the Property or at another location within City.
(b) Developer shall defend (with counsel chosen by the City), indemnify,
assume all responsibility for, and hold harmless City and its officers, officials, employees,
volunteers, agents and representatives from and against any and all present and future liabilities,
obligations, orders, claims, damages, fines, penalties and expenses (including attorneys' fees and
costs) arising out of or in any way connected with Developer's or its contractors' obligations to
comply with all Prevailing Wage Laws, including all claims that may be made by contractors,
subcontractors or other third party claimants pursuant to Labor Code sections 1726 and 1781.
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4.3 Sales Tax Point of Sale Designation. Developer shall request that all persons and
entities providing bulk lumber, concrete, structural steel and pre -fabricated building components,
such as roof trusses, to be used in connection with the construction and development of, or
incorporated into, the Project, designate City as the sole point-of-sale for purposes of computing
sales taxes due under the Bradley -Burns Uniform Local Sales and Use Tax Law (California
Revenue and Taxation Code sections 7200 et seq. and implementing regulations) on the sale of
such bulk construction and building materials and components. Developer shall not be in default
hereunder if such request is not agreed to by such persons and entities providing such materials
to the Project.
5. FEES AND EXACTIONS.
5.1 Development Fees, Taxes and Exactions. Developer shall pay all fees, special
assessments, special taxes, exactions and dedications payable due to the development, build out,
occupancy and use of the Property pursuant to this Agreement including Impact Fees, Processing
Fees, Taxes and Assessments, and Consultant Fees.
5.2 Impact Fees. Developer shall pay all development impact fees in effect as of the
Effective Date ("Impact Fees"). Impact fees shall be paid at the rate in effect as of the Effective
Date with annual increases based on the Construction Cost Index from the Engineering News
Report.
5.3 Processing Fees, City may charge and Developer agrees to pay all processing
fees, application, inspection and monitoring fees, and staff and legal fees ("Processing Fees"),
for land use approvals, grading and building permits, general plan maintenance fees, and other
permits and entitlements, which are in force and effect on a City-wide basis at the time those
permits, approvals or entitlements are applied for on any or all portions of the Project, and which
are intended to cover the actual costs of processing the foregoing.
5.4 Taxes and Assessments. City may charge and Developer agrees to pay any new,
increased or modified taxes or assessments, imposed as a condition of or in connection with any
Subsequent Project Approvals or otherwise, provided such taxes and 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 ("Taxes and Assessments").
5.5 Consultant Fees. In addition to charging the foregoing Processing Fees, City
may, in its sole discretion, contract with one or more outside inspectors, engineers, attorneys or
consultants to perform all or any portion of the monitoring, inspection, testing, application
processing and evaluation services to be performed in connection with construction and
development of the Project or in connection with the periodic review of the Agreement
("Consultant Fees"). Developer shall pay to City, within 30 days following City's written
demand therefore, the full amount of all Consultant Fees, plus a 10 percent City administration
charge. City shall provide copies of consultant bills that City asks Developer to pay pursuant to
this paragraph at the same time that the City submits an invoice seeking payment to Developer.
In the event that a consultant bill contains attorney-client privileged communications, City may
redact those portions of the consultant bill that are privileged. The Consultant Fees, together
with the associated administrative charge, shall be in addition to, and not in lieu of, the
OAK #4834-2306-3595 v I 1 11
Processing Fees. The City shall not double -charge Developer through the imposition of both
Processing Fees and Consultant Fees.
5.6 Obligations Under Previous ALreernents
(a) Developer will have no obligations under the Property Disposition and
Development Agreement between City of Rohnert Park and Costco Wholesale Corporation and
entered into as of November 27, 2001.
(b) Developer shall pay the Reserves LLC, the amount of $62,995, as set forth
in the Offsite Public Improvement and Fee Credit Agreement and Termination and Supersession
of Deferred Improvement Agreement between the City of Rohnert Park and the Reserves LLC
for Carlson Avenue (referred to as "Carlson Court") and entered into as of May 21, 2015.
Developer shall provide City with proof of payment to Reserves LLC, prior to or at the time of
issuance of the first Building Permit or Grading Permit for the Project.
(c) Developer shall 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 the time of
issuance of the first Building Permit or Grading Permit for the Project.
5.7 Purchase of GHG Emission Offset Credits.. Developer shall make a one-time
purchase of Greenhouse Gas carbon offset credits through the Climate Action Reserve (CAR) to
offset 600 metric tons CO2E per year for 30 years, which is the life of the Project assumed in the
MND. The purchase price for such offset credits is currently estimated as approximately Thirty
Thousand Dollars ($30,000.00). Developer shall provide City with proof of purchase and
registration of the credits prior to or at the time of issuance of the first Building Permit or
Grading Permit for the Project.
6. BENEFITS TO CITY.
6.1 hotel Development. Developer shall develop the Hotel as an Upscale, as defined
by the 2016 STR Hotel Chain Scale ("Upscale") or higher hotel, and shall provide City with a
copy of the Hotel Franchise Agreement prior to issuance of a Building Permit for the Hotel
demonstrating compliance with this Section 6.1.
6.2 Public Improvements. Developer shall construct public improvements in
accordance with the City's standards and specifications and plans and specifications to be
approved by City, in City's sole discretion, within the time -frames set forth below or such earlier
time -frame set forth in the Existing Project Approvals and the conditions of approval set forth
therein. Improvements shall include, but not be limited to the following:
(a) Remainder 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 issuance of the first certificate of occupancy within the Project;
(b) Sidewalk along Dowdell Avenue frontage, prior to issuance of the first
certificate of occupancy within the Project;
OAK #4534-2306-3595 vl 1 12
(c) If required by the traffic study for the Project, Labath Avenue northbound
right -turn lane at Martin Avenue widening and improvements, prior to issuance of the first
certificate of occupancy within the Project;
(d) Storm drain outfall into Hinebaugh Creek, including all costs for design,
permitting, and construction, as shown on the Stadium Lands approved tentative map, prior to
issuance of the first certificate of occupancy within the Project;
(e) A twelve -inch water main in Redwood Drive from the Hinebaugh Creek
Pressure Reducing Valve vault to Martin Avenue, prior to issuance of the first certificate of
occupancy within the Project;
(f) Site irrigation connected to existing recycled water system within Labath
Avenue and/or Dowdell Avenue; and
(g) Martin Avenue improvements, including curb, gutter, and sidewalk to
provide an ultimate curb -to -curb width of 42 to 55 feet, as illustrated in Exhibit B attached
hereto, prior to issuance of the first certificate of occupancy within the Project, with City to fund
the half -width of the improvements adjacent to the property to be retained by City, as illustrated
in Exhibit B attached hereto.
6.3 Storrn Wates Maintenance Agreement. Developer shall enter into a Storm Water
Maintenance Agreement (the "Storm Water Agreement") prior to recordation of the Final Map
for the Project, to address long-term maintenance of on-site storm drainage and water quality
features within the Project. The Storm Water Agreement shall be in a form approved by the
City.
6.4 Public Park.
(a) Developer shall dedicate to City fee title to the park area shown on the
Tentative Map ("Park Area") on the Final Map. Developer, at its expense, shall cause all
recorded and unrecorded monetary liens and all recorded and unrecorded non -monetary liens,
encumbrances, easements, leases, covenants, conditions, restrictions, and other exceptions to or
defects in title, excepting only the lien for current, non -delinquent property taxes, to be removed
from title to the Park Area prior to recordation of the Final Map. The boundaries of the Park
Area may be adjusted pursuant to lot line adjustments with the neighboring properties approved
by the City.
(b) Developer, at its expense, shall construct and thereafter dedicate to the
City the public park improvements on the Park Area, as shown on the Project Approvals.
Construction of the public park improvements shall be completed prior to the issuance of the first
certificate of occupancy for the Residential Component. The total cost of the Park Area and park
improvements shall equal approximately $788,000, but no greater than $813,000, with the Park
Area valued at $583,673 per acre, as verified by the City with supporting documentation by
Developer. In the event that the Buyer's total costs (including the valuation of the Park Area
referred to above) are lower than $788,000, the difference between $788,000 and the actual costs
shall be paid by Developer to City prior to the issuance of the first certificate of occupancy for
the Project.
OAK 44834-2306-3595 vl 1 13
6.5 Public Service Payment.
(a) Developer shall make a public service payment to City to offset the
projected fiscal deficit to City's General Fund created by the Residential Component and to
comply with the General Plan policies and goals. The payment shall be equal to Eight Hundred
Dollars ($800.00) per residential unit constructed on the Property, subject to annual adjustment
based on the San Francisco Bay Area Consumer Price Index (the "Service Payment"). The
obligation to make annual Service Payments shall be documented in an instrument to be recorded
against the Property, as set forth in Section 6.5(c) below.
(b) Developer shall pay to City each initial Service Payment at the time of
issuance of a Building Permit for a residential unit within the Project. Thereafter, Developer or
its successor shall pay an amount equal to the Service Payment, as adjusted pursuant to Section
6.5(a) above, for each residential unit for which a building permit has been issued, with such
Service Payment due not later than April 30 of each year following the year of initial payment
and continuing in perpetuity, provided that at least twelve (12) months have elapsed between the
date of initial payment and the first subsequent payment.
(c) Developer shall ensure the ongoing payment of the Service Payment to
City by the establishment of service districts, property owner and homeowner associations, or
other mechanisms, which shall be responsible for making the annual Service Payment. The
Service Payment funding mechanism shall be subject to City approval, and all relevant
documents, agreements, and, as applicable, property owner and homeowner association
documents, including the conditions, covenants and restrictions, shall expressly provide language
to that effect in addition to language that the City shall be a third party beneficiary with the right
to independently enforce such association's obligations, which language shall be reviewed and
approved by the City Attorney. The recorded instrument or financing mechanism must be in
place or established to the satisfaction of City, in its sole discretion, prior to the issuance of the
first Building Permit for the Residential Component.
6.6 Funding for Affordable Housing. Developer shall provide a total of $50,000.00 to
City to assist in the creation of or preservation of affordable housing ("Affordable Housing
Payment"). The Affordable Housing Payment shall be paid to City prior to issuance of the first
Building Permit for the Project.
COOPERATION AND IMPLEMENTATION.
7.1 Subsequent Project Approvals. Developer and City acknowledge and agree that
Developer intends to submit applications for Subsequent Project Approvals. In connection with
any Subsequent Project Approval, the City shall exercise its discretion in accordance with
Applicable Law and the Project Approvals and, as provided by this Agreement.
7.2 Processing Applications for Subsequent Project Approvals.
(a) Developer acknowledges that City cannot begin processing applications
for Subsequent Project Approvals until Developer submits complete applications on a timely
basis. Developer shall use its best efforts to (i) provide to City in a timely manner any and all
documents, applications, plans, and other information necessary for City to carry out its
OAK #4834-2306-3595 v 11 14
obligations hereunder; and (ii) cause Developer's planners, engineers, and all other consultants to
provide to City in a timely manner all such documents, applications, plans and other materials
required under Applicable Law. It is the express intent of Developer and City to cooperate and
diligently work to obtain any and all Subsequent Project Approvals.
(b) Upon submission by Developer of all appropriate applications and
processing fees for any pending Subsequent Project Approval, City shall, as allowed by law,
reasonably and diligently, subject to City ordinances, policies and procedures regarding hiring
and contracting, commence and complete all steps necessary to act on Developer's currently
pending Subsequent Project Approval applications.
(c) With the Existing Project Approvals, City has made a final policy decision
that the Project is in the best interests of the public health, safety and general welfare.
Applications for Subsequent Ministerial Approvals that are consistent with this Agreement and
the Existing Project Approvals shall be processed and considered in a manner consistent with the
vested rights granted by this Agreement and shall be deemed to be tools to implement those final
policy decisions, and shall be approved by City so long as they are consistent with this
Agreement and the Existing Project Approvals. While City expressly reserves its discretion with
respect to all Subsequent Discretionary Approvals, City agrees that it shall not use its authority in
considering any application for a Subsequent Discretionary Approval to change the policy
decisions reflected by the Existing Project Approvals or otherwise to prevent or frustrate the
further development of the Project as set forth in the Existing Project Approvals.
(d) Nothing herein shall limit the ability of City to require the necessary
environmental review, reports, analysis or studies to assist in determining that the requested
Subsequent Ministerial Approval is consistent with this Agreement and the Existing Project
Approvals. If the City determines that an application for a Subsequent Ministerial Approval is
not consistent with this Agreement or the Existing Project Approvals and should be processed as
an application for a Subsequent Discretionary Approval rather than a Subsequent Ministerial
Approval, the City shall specify in writing the reasons for such determination and may propose a
modification which would be processed as a Subsequent Ministerial Approval. Developer shall
then either modify the application to conform to this Agreement and the Existing Project
Approvals, as the case may be, or the City shall process the application as an application for a
Subsequent Discretionary Approval.
(e) City shall process Developer's applications for Subsequent Project
Approvals to the fullest extent allowed by Applicable Law and Developer may proceed with
Subsequent Project Approvals as provided for herein to the fullest extent allowed by Applicable
Law.
7.3 Changes and Amendments to Project Approvals.
(a) Given the long term build -out of the Project, the City and Developer
acknowledge that modifications or amendments to the Project Approvals may be appropriate and
mutually desirable. To the extent permitted by Applicable Law, any Project Approval may, from
time to time, be amended or modified in the following manner:
OAK #4834-2306-3595 vl 1 15
(i) Upon the written request of Developer for an amendment or
modification to a Project Approval, the City Manager or the City Manager's designee shall
determine: (A) whether the requested amendment or modification is minor when considered in
light of the Project as a whole; and (B) whether the requested amendment or modification is
consistent with this Agreement and Applicable Law. If the City Manager finds, in his or her sole
discretion, that the proposed amendment or modification is minor, consistent with this
Agreement and Applicable Law, and will result in no new significant impacts not addressed and
mitigated in the environmental review, the amendment shall be determined to be an
"Administrative Project Amendment" and the City Manager may approve the Administrative
Project Amendment consistent with City's procedures for such administrative actions, including
any requirements for notice, public hearing and appeal rights.
(ii) Any request of Developer for an amendment or modification to a
Project Approval which is determined by the City Manager or his/her designee not to be an
Administrative Project Amendment as set forth above shall be deemed a "Non -administrative
Project Amendment" and shall be subject to review, consideration and action pursuant to the
Project Approvals, Applicable Law and this Agreement, as applicable.
(iii) Administrative Project Amendments shall not require an
amendment to this Agreement.
7.4 Amendment of this Agreement. This Agreement may be amended from time to
time, in whole or in part, by mutual written consent of the Parties or their successors in interest,
as follows:
(a) Administrative Agreement Amendments. Any amendment to this
Agreement which does not substantially affect (a) the Term of this Agreement; (b) permitted
uses of the Property; (c) provisions for the reservation or dedication of land; (d) conditions, terms
restrictions or requirements for subsequent discretionary actions; (e) increases in the density or
intensity of the use of the Property or the maximum height or size of proposed buildings; or (f)
monetary contributions by Developer, shall be deemed an "Administrative Agreement
Amendment" and the City Manager or his or her designee, except to the extent otherwise
required by Applicable Law, may approve the Administrative Agreement Amendment without
notice and public hearing.
(b) Major Agreement. Amendments. Any amendment to this Agreement
which is determined not to be an Administrative Agreement Amendment as set forth above shall
be deemed a "Major Agreement Amendment" and shall require giving of notice and a public
hearing before the Planning Commission and City Council in accordance with Applicable Law.
The City Manager or his or her designee shall have the authority to determine if an amendment is
a Major Agreement Amendment or an Administrative Agreement Amendment.
7.5 Mitigation Measures. Developer shall comply with all mitigation measures in the
Stadium Area Master Plan Environmental Impact Report and Mitigation Monitoring and
Reporting Plan (MMRP). Developer shall comply with all additional mitigation measures
imposed as a result of the MND. Mitigation related to Greenhouse Gas emissions shall be
provided, in part, through the purchase of GHG carbon offset credits as described in Section 5.7.
OAK #4834-2306-3595 v11 16
7.6 Cooperatum in the Event orL.egal Challenge-.
(a) City and Developer, at Developer's sole cost and expense, shall cooperate
in the event of any court action instituted by a third party or other governmental entity or official
challenging the validity of any provision of this Agreement, any Existing Project Approvals or
any Subsequent Project Approvals and City shall appear in the action and defend its decision,
except that City shall not be required to be an advocate for Developer. To the extent that
Developer determines to contest or defend such litigation challenges, Developer shall reimburse
City, within ten (10) days following City's written demand therefore, which may be made from
time to time during the course of such litigation, all costs incurred by City in connection with the
litigation challenge, including City's administrative, legal and court costs, provided that City, it
its sole discretion shall determine to either: (a) elect to joint representation by Developer's
counsel; or (b) retain an experienced litigation attorney. If Developer defends any such legal
challenge, Developer shall indemnify, defend, and hold harmless City and its officials and
employees from and against any claims, losses, or liabilities assessed or awarded against City by
way of judgment, settlement, or stipulation. Nothing herein shall authorize Developer to settle
such legal challenge on terms that would constitute an amendment or modification of this
Agreement, any Existing Project Approvals or any Subsequent Project Approvals, unless such
amendment or modification is approved by City in accordance with applicable legal
requirements, and City reserves its full legislative discretion with respect thereto.
(b) In addition, City shall have the right, but not the obligation, to contest or
defend such litigation challenges, in the event that Developer elects not to do so. If City elects to
contest or defend such litigation challenges, Developer shall bear all related costs and expenses,
including City's attorney fees, and, in addition, shall indemnify, defend, and hold harmless City
and its officials and employees from and against any claims, losses, or liabilities assessed or
awarded against City by way of judgment, settlement, or stipulation.
7.7 Indemnity and Hold Harmless. Developer shall indemnify and hold City and its
elected and appointed officers, agents, employees, and representatives harmless from and against
any and all claims, costs, liabilities and damages (including attorneys' fees and costs), including
without limitation bodily injury, death, or property damage, resulting directly or indirectly from
the approval or implementation of this Agreement, the development and construction of the
Project by or on behalf of Developer, or from any operations performed under this Agreement,
whether such operations were performed by Developer or any of Developer's contractors,
subcontractors, agents or employees, except to the extent such claims, costs and liabilities arise
from the active negligence or willful misconduct of City, its elected and appointed officers,
agents, employees, representatives, contactors or subcontractors.
DEFAULT AND REMEDIES.
8.1 Breach. Subject to extensions of time under this Agreement or by mutual consent
in writing, the failure or delay by either Party to perform any term or provision of this Agreement
or the Purchase Agreement shall constitute a breach of this Agreement. In the event of alleged
breach of any terms or conditions of this Agreement or the Purchase Agreement, the Party
alleging such breach shall give the other Party notice in writing specifying the nature of the
breach and the manner in which said breach or default may be satisfactorily cured, and the Party
OAK #4834-2306-3595 v11 17
in breach shall have thirty (30) days following such notice ("Cure Period") to cure such breach,
except that in the event of a breach of an obligation to make a payment, the Party in breach shall
have ten (10) days to cure the breach. If the breach is of a type that cannot be cured within thirty
(30) days, the breaching Party shall, within a thirty (30) day period following notice to the non -
breaching Party, notify the non -breaching Party of the time it will take to cure such breach which
shall be a reasonable period under the circumstances ("Extended Cure Period"); commence to
cure such breach; and be proceeding diligently to cure such breach. During the Cure Period or
Extended Cure Period, the Party charged shall not be considered in default for purposes of
termination or institution of legal proceedings; but the City's right to refuse to issue a permit or
Subsequent Project Approval, under Section 7.3, shall not be limited by this provision. The
failure of any Party to give notice of any breach shall not be deemed to be a waiver of that
Party's right to allege any other breach at any other time. The terms of this Agreement do not
limit the City's rights under the Purchase Agreement.
8.2 Default. If the breaching Party has not cured such breach within the Cure Period
or the Extended Cure Period, if any, such Party shall be in default ("Default"), and the non -
breaching Party, at its option, may terminate the Agreement, institute legal proceedings pursuant
to this Agreement and shall have such remedies as are set forth in Section 8.4 below.
8.3 Widiholding of Permits. In the event of a Default by Developer, City shall have
the right to refuse to issue any permits or other approvals to which Developer would otherwise
have been entitled pursuant to this Agreement. This provision is in addition to and shall not limit
any actions that City may take to enforce the conditions of the Project Approvals.
8.4 Remedies.
(a) In the event of a Default by City or Developer, the non -defaulting Party
shall have the right to terminate this Agreement upon giving notice of intent to terminate
pursuant to Government Code Section 65868 and regulations of City implementing such section.
Following notice of intent to terminate, the matter shall be scheduled for consideration and
review in the manner set forth in Government Code Section 65867 and City regulations
implementing said section. Following consideration of the evidence presented in said review
before the City Council, either Party alleging Default by the other Party may give written notice
of termination of this Agreement to the other Party. Termination of this Agreement shall be
subject to the provisions of Section 7.8(c) below.
(b) City and Developer agree that in the event of Default by City, the Parties
intend that the only remedy shall be declaratory relief or specific performance of this Agreement.
The Parties further agree that in the event of Default by Developer, the City's primary remedy
would be specific performance of the terms and provisions of this Agreement. In no event shall
either Party be entitled to any actual, consequential, punitive, or special damages. If City issues
an Approval pursuant to this Agreement in reliance upon a specified condition being satisfied by
Developer in the future, and if Developer then fails to satisfy such condition, City shall be
entitled to specific performance for the purpose of causing Developer to satisfy such condition.
(c) In addition to any other rights or remedies, either Party may institute legal
action to cure, correct or remedy any Default, to enforce any covenants or agreements herein, to
OAK #4834-2306-3595 vl 1 18
enjoin any threatened or attempted violation hereof, or to obtain any other remedies consistent
with the purpose of this Agreement except as limited by Section 7.4(b) above. Any such legal
action shall be brought in the Superior Court for Sonoma County, California.
8.5 Periodic Review.
(a) The annual review date for this Agreement shall be the month and day of
the Effective Date. No later than 60 calendar days prior to the annual review date, Developer
shall submit to the City an accounting of the fees due and paid to the City, any assignments or
transfers of the Property and all construction of public improvements under this Agreement.
Developer shall initiate the annual review by submitting a written request to the Planning
Director. Developer shall submit an application and pay all legally required fees as required by
the City, and provide evidence as determined necessary by the Director to demonstrate good
faith compliance with the provisions of this Agreement. However, failure to initiate the annual
review within 30 days of receipt of written notice to do so from City shall not constitute a
Default by Developer under this Agreement, unless City has provided actual notice and
opportunity to cure and Developer has failed to so cure.
(b) The annual review required by Government Code section 65865.1 and the
City Municipal Code shall be conducted as provided herein:
(i) The City Manager shall review Developer's submission to
ascertain whether Developer has complied in good faith with the terms of this Agreement. If the
City Manager finds good faith compliance by Developer with the terms of this Agreement, the
City Manager shall so notify Developer and the City Council in writing and the review for that
period shall be concluded. If the City Manager finds good faith compliance with this
Agreement, the notification to the City Council shall not require a hearing of any kind or an
appearance from Developer. If the City Manager is not satisfied that the Developer is
performing in accordance with the material terms and conditions of this Agreement, the City
Manager shall refer the matter to the City Council for a determination as to compliance with this
Agreement and notify Developer in writing at least ten days in advance of the time at which the
matter will be considered by the City Council.
(ii) In the event that the City Manager is not satisfied pursuant to
section (b)(i) above, the City Council shall conduct a hearing at which Developer must submit
evidence that it has complied in good faith with the terms and conditions of this Agreement. The
findings of the City Council on whether Developer has complied with this Agreement for the
period under review shall be based upon substantial evidence in the record. If the City Council
determines that, based upon substantial evidence, Developer has complied in good faith with the
terms and conditions of this Agreement, the review for that period shall be concluded. If,
however, the City Council determines, based upon substantial evidence in the record, that there
are significant questions as to whether Developer has complied in good faith with the terms and
conditions of this Agreement, the City Council may continue the hearing and shall notify
Developer of the City's intent to meet and confer with Developer within 30 days of such
determination, prior to taking further action. Following the 30 -day time period, the City Council
shall resume the hearing in order to further consider the matter and to make a determination,
regarding Developer's good faith compliance with the terms and conditions of the Agreement
OAK #4834-2306-3595 v] 1 19
and to take those actions it deems appropriate, including but not limited to, termination of this
Agreement, in accordance with California Government Code section 65865.1 and the City
Municipal Code.
(c) Failure of City to conduct an annual review shall not constitute a waiver
by the City of its rights to otherwise enforce the provisions of this Agreement nor shall
Developer have or assert any defense to such enforcement by reason of any such failure to
conduct an annual review.
(d) If, after an annual review, City finds Developer has complied in good faith
with this Agreement, City shall promptly following Developer's request issue to Developer a
certificate of compliance certifying that Developer has so complied through the period of the
applicable annual review. The Certificate of Compliance must be in recordable form and must
contain such information as may be necessary to impart constructive notice of City's finding.
Developer may record the Certificate of Compliance in the Official Records of the County of
Contra Costa.
8.6 Enforced Delay, Extension of Time of Performance. Subject to the limitations set
forth below, performance by either party hereunder shall not be deemed to be in default, and all
performance and other dates specified in this Agreement shall be extended, where delays are due
to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God;
acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; governmental
restrictions or priority; litigation; unusually severe weather; acts or omissions of the other Party;
or acts or failures to act of any other public or governmental agency or entity (other than the acts
or failures to act of City which shall not excuse performance by City). An extension of time for
any such cause shall be for the period of the enforced delay and shall commence to run from the
time of the commencement of the cause but in any event shall not exceed a cumulative total of
two (2) years. Developer acknowledges that adverse changes in economic conditions, either of
Developer specifically or the economy generally, changes in market conditions or demand,
and/or inability to obtain financing or other lack of funding to complete the work of on-site and
off-site improvements shall not constitute grounds of enforced delay pursuant to this Section.
Developer expressly assumes the risk of such adverse economic or market changes and/or
financial inability, whether or not foreseeable as of the Effective Date.
8.7 Resolution of Disputes. With regard to any dispute involving the Project, the
resolution of which is not provided for by this Agreement, the Purchase Agreement, or
Applicable Law, Developer shall, at City's request, meet with City. The parties to any such
meetings shall attempt in good faith to resolve any such disputes. Nothing in this Section shall in
any way be interpreted as requiring that Developer and City and/or City's designee reach
agreement with regard to those matters being addressed, nor shall the outcome of these meetings
be binding in any way on City or Developer unless expressly agreed to by the parties to such
meetings.
8.8 Termination. This Agreement shall terminate upon the earlier of (i) expiration of
the Term, or (ii) when the Property has been fully developed and all of Developer's obligations
have been fully satisfied as reasonably determined by City, or (iii) after all appeals have been
exhausted before a final court of judgment, or issuance of a final court order directed to the City
OAK #4834-2306-3595 v 11 20
to set aside, withdraw, or abrogate the City's approval of this Agreement or any material part
thereof. Upon termination of this Agreement as to all of the Property, at the request of
Developer, the City shall record a Notice of Termination for each affected parcel in a form
satisfactory to the City Attorney in the Office of the Sonoma County Recorder. In the event this
Agreement is terminated, neither party shall have any further rights or obligations hereunder,
except for those obligations of Developer set forth in Sections 4.2 (Prevailing Wage), 7.5
(Cooperation in the Event of Legal Challenge), and 7.6 (Indemnity and Hold Harmless).
9. MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE.
9.1 Mortgagee Protection. This Agreement shall be superior and senior to all liens
placed upon the Property or any portion thereof after the date on which this Agreement or a
memorandum thereof is recorded, including the lien of any deed of trust or mortgage
("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid,
diminish or impair the lien of any Mortgage made in good faith and for value, but all of the terms
and conditions contained in this Agreement shall be binding upon and effective against all
persons and entities, including all deed of trust beneficiaries or mortgagees ("Mortgagees") who
acquire title to the Property or any portion thereof by foreclosure, trustee's sale, deed in -lieu -of
foreclosure, voluntary transfer or otherwise.
9.2 Mortgagee Obligations. City, upon receipt of a written request from a foreclosing
Mortgagee, shall permit the Mortgagee to succeed to the rights and obligations of Developer
under this Agreement and the Purchase Agreement, provided that all defaults by Developer
hereunder that are reasonably susceptible of being cured are cured by the Mortgagee as soon as
reasonably possible, provided, however, that in no event shall such Mortgagee personally be
liable for any defaults or monetary obligations of Developer arising prior to acquisition of
possession of such property by such Mortgagee. The foreclosing Mortgagee shall have the right
to find a substitute developer to assume the obligations of Developer, which substitute shall be
considered for approval by the City pursuant this Agreement. In any event, a Mortgagee shall
not be entitled to devote the Property to any use except in full compliance with the Project
Approvals nor to construct any improvements thereon or institute any uses other than those uses
or improvements provided for or authorized by the Agreement or the Project Approvals.
9.3 Notice of Default to Mortgagee. If City receives notice from a Mortgagee
requesting a copy of any notice of default given to Developer and specifying the address for
service thereof, City shall endeavor to deliver to the Mortgagee, concurrently with service
thereof to Developer, all notices given to Developer describing all claims by the City that
Developer has defaulted hereunder. If City determines that Developer is not in compliance with
this Agreement, City also shall endeavor to serve notice of noncompliance on the Mortgagee
concurrently with service on Developer. Each Mortgagee shall have the right, but not the
obligation, during the same period available to Developer to cure or remedy, or to commence to
cure or remedy, the condition of default claimed or the areas of noncompliance set forth in City's
notice.
OAK #4834-2306-3595 vl 1 21
10. ASSIGNABILITY.
10.1 Assignment by Developer. Developer may not convey, assign or transfer
("Transfer") any of its interests, rights or obligations under this Agreement without the prior
written consent of City, which consent shall not be unreasonably withheld or delayed. Any
Transfer of all or a portion of this Agreement shall be documented by an Assignment and
Assumption Agreement in a form reasonably acceptable to the City. In no event shall the
obligations conferred upon Developer under this Agreement be transferred except through a
transfer of all or a portion of the Property. Should Developer transfer any of its interests, rights
or obligations under this Agreement in connection with a transfer by Developer of a portion of
the Property (such Transfer, a "Partial Assignment"), such Partial Assignment shall be
documented by an Assignment and Assumption Agreement in the form attached hereto as
Exhibit +C or such other form reasonably acceptable to the City. To the extent provided in the
Assignment and Assumption Agreement, the transferee of such interests, rights or obligations
under this Agreement (each, a "Partial Transferee") shall only be liable for performance of the
obligations of Developer under this Agreement (including, without limitation, indemnification
obligations and the obligation to install public improvements and pay fees) related to the portion
of the Property transferred to such Partial Transferee, and no Default by Developer or any other
assignee who received a Partial Assignment hereunder shall constitute an event of Default
hereunder by such Partial Transferee. Should Developer transfer any of its interests, rights or
obligations under this Agreement, it shall nonetheless remain liable for performance of the
obligations for installation of public improvements and payment of fees, unless the transferee
agrees to be bound by the relevant terms of the Agreement, including the obligations for
installation of public improvements and payment of fees. During the Term, Developer shall
provide City with written notice of a request to Transfer any interest in this Agreement 90 days
prior to any such contemplated Transfer. Any such request for a Transfer shall be accompanied
by quantitative and qualitative information that substantiates, to the City's satisfaction, that the
proposed transferee has the capability to fulfill the rights and obligations of this Agreement.
Within 45 days of such a request and delivery of information, the City Manager shall make a
determination, in his or her sole discretion, as to whether the Transfer shall be permitted or
whether such Transfer necessitates an Amendment to this Agreement, subject to approval by the
City Council. Each successor in interest to Developer shall be bound by all of the terms and
provisions applicable to the portion of the Property acquired. This Agreement shall be binding
upon and inure to the benefit of the Parties' successors, assigns and legal representatives. This
Agreement shall be recorded by the City in the Sonoma County Recorder's Office promptly
upon execution by each of the Parties.
10.2 Covenants Run With The Land. All of the provisions, agreements, rights, powers,
standards, terms, covenants and obligations contained in this Agreement and the Purchase
Agreement incorporated herein by reference shall run with the land and shall be binding upon the
Parties and their respective heirs, successors (by merger, consolidation or otherwise) and assigns,
devisees, administrators, representatives, lessees and all other persons or entities acquiring the
Property, any lot, parcel or any portion thereof and any interest therein, whether by sale,
operation of law or other manner, and shall inure to the benefit of the Parties and their respective
successors.
OAK #4834-2306-3595 v11 22
10.3 Pre -Approved Transfers. The following transfers shall not require approval by
the City, and shall automatically, upon the satisfaction of the conditions in Section 9.1 above,
result in the release of Developer of its obligations hereunder as they may relate specifically to
the specific property or asset sold or transferred: (a) prior to the issuance of any Building
Permits, sale or lease of the Property in its entirety to any corporation, limited liability company,
partnership or other entity which is controlling of, controlled by or under common control with
Developer and "control" for purposes of this definition means effective management and control
of the other entity, subject only to major events requiring the consent or approval of the other
members of such entity; and (b) a loan or mortgage pertaining to the Property.
10.4 Non -Assuming Transferees. Except as otherwise required by a transferor, the
burdens, obligations and duties of such transferor under this Agreement shall not apply to any
purchaser of any individual house offered for sale. The transferee in a transaction described
above and the successors and assigns of such a transferee shall be deemed to have no obligations
under this Agreement, but shall continue to benefit from the vested rights provided by this
Agreement for the duration of the Term hereof. Nothing in this Section shall exempt any
property transferred to a non -assuming transferee from payment of applicable fees, taxes and
assessments or compliance with applicable conditions of approval.
10.5 Foreclosure. Nothing contained in this Section shall prevent a transfer of the
Property, or any portion thereof, to a lender as a result of a foreclosure or deed in lieu of
foreclosure, and any lender acquiring the Property, or any portion thereof, as a result of
foreclosure or a deed in lieu of foreclosure shall take such Property subject to the rights and
obligations of Developer under this Agreement; provided, however, in no event shall such lender
be liable for any defaults or monetary obligations of Developer arising prior to acquisition of title
to the Property by such lender, and provided further, in no event shall any such lender or its
successors or assigns be entitled to a Building Permit or occupancy certificate until all fees due
under this Agreement (relating to the portion of the Property acquired by such lender) have been
paid to City.
11. GENERAL.
11.1 Controlling I.aw. This Agreement shall be governed by the laws of the State of
California, without reference to choice of laws principles.
11.2 +construction ol',Agreement. The language in this Agreement in all cases shall be
construed as a whole and in accordance with its fair meaning. Each reference in this Agreement
to this Agreement or any of the Existing Project Approvals or Subsequent Ministerial or
Discretionary Approvals shall be deemed to refer to the Agreement, Project Approval or
Subsequent Ministerial or Discretionary Approval as it may be amended from time to time,
whether or not the particular reference refers to such possible amendment. 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 of this Agreement. This Agreement has been
reviewed and revised by legal counsel for both City and Developer, and no presumption or rule
that ambiguities shall be construed against the drafting party shall apply to the interpretation or
enforcement of this Agreement. Unless the context clearly requires otherwise, (i) the plural and
singular numbers shall each be deemed to include the other; (ii) the masculine, feminine, and
OAK #4534-2306-3595 vl 1 23
neuter genders shall each be deemed to include the others; (iii) "shall," "will," or "agrees" are
mandatory, and "may" is permissive; (iv) "or" is not exclusive; (v) "include," "includes" and
"including" are not limiting and shall be construed as if followed by the words "without
limitation," and (vi) "days" means calendar days unless specifically provided otherwise.
11.3 No Waiver. No delay or omission by the City or Developer in exercising any
right or power accruing upon the other Party's noncompliance or failure to perform under the
provisions of this Agreement shall impair or be construed to waive any right or power. A waiver
by City or Developer of any of the covenants or conditions to be performed by the other Party
shall not be construed as a waiver of any succeeding breach of the same or other covenants and
conditions.
11.4 A s Ditire Agreement. This Agreement and all exhibits attached hereto
or documents incorporated herein by reference, including without limitation the Purchase
Agreement, are the sole and entire agreement between the Parties concerning the Property. In
the event of a conflict between this Agreement and the Purchase Agreement, the terms of this
Agreement shall prevail. The Parties acknowledge and agree that they have not made any
representation with respect to the subject matter of this Agreement or any representations
inducing the execution and delivery, except representations set forth herein, and each Party
acknowledges that it has relied on its own judgment in entering this Agreement. The Parties
further acknowledge that all statements or representations that heretofore may have been made
by either of them to the other are void and of no effect, and that neither of them has relied
thereon in its dealings with the other.
11.5 Estoppel Certificate. City or Developer from time to time may deliver written
notice to the other Party requesting written certification that, to the knowledge of the certifying
Party, (i) this Agreement is in full force and effect and constitutes a binding obligation of the
Parties, (ii) this Agreement has not been amended or modified either orally or in writing, or, if it
has been amended or modified, specifying the nature of the amendments or modifications, and,
(iii) the requesting Party does not have knowledge of default in the performance of its
obligations under this Agreement, or if in known default, describing therein the nature and
monetary amount, if any, of the default.
11.6 Further Documents. Each Party shall execute and deliver to the other all other
instruments and documents as may be reasonably necessary to carry out this Agreement.
11.7 Time of Essence. Time is of the essence in the performance of each and every
covenant and obligation to be performed by the Parties hereunder.
11.8 Construction. This Agreement has been reviewed and revised by legal counsel
for both the City and Developer and no presumption or rule that ambiguities shall be construed
against the drafting Party shall apply to the interpretation or enforcement of this Agreement.
11.9 Notices. Except as otherwise expressly provided herein, all notices and demands
pursuant to this Agreement shall be in writing and delivered in person, by commercial courier or
by first-class certified mail, postage prepaid. Except as otherwise expressly provided herein,
notices shall be considered delivered when personally served, upon delivery if delivered by
OAK #4834-2306-3595 vl 1 24
commercial courier, or two (2) days after mailing if sent by mail. Notices shall be sent to the
addresses below for the respective Parties; provided, however, that any Party may change its
address for purposes of this Section by giving written notice to the other Parties. These
addresses may be used for service of process:
City: City Clerk
City of Rohnert Park
130 Avram Avenue
Rohnert Park, California 94928
with copy to: Michelle Marchetta Kenyon
City Attorney
City of Rohnert Park
1901 Harrison Street, 91h Floor
Oakland, California 94612
Developer: Stadium RP Development Partners, LLC
c/o MJW Investments, LLC
1278 Glenneyre Street, Suite 439
Laguna Beach, CA 92651
Attention: Matthew J. Waken
with copy to: Palmieri, Tyler, Weiner, Wilhelm &
Waldron LLP
1900 Main Street, Suite 700
Irvine, California 92614
Attention: Stephen A. Scheck
The provisions of this Section shall be deemed directive only and shall not detract from the
validity of any notice given in a manner that would be legally effective in the absence of this
Section.
11.10 Developer is an Independent Contructo'r. Developer is not an agent or employee
of City, but is an independent contractor with full rights to manage its employees subject to the
requirements of the law. All persons employed or utilized by Developer in connection with this
Agreement are employees or contractors of Developer and shall not be considered employees of
City in any respect.
11.11 No .hint Venture. It is specifically understood and agreed that the Project is a
private development. No partnership, joint venture or other association of any kind between City
and Developer is formed by this Agreement.
11.12 Nondiscrimination. Developer shall not discriminate, in any way, against any
person on the basis of race, color, national origin, gender, marital status, sexual orientation, age,
creed, religion or disability in connection with or related to the performance of this Agreement.
OAK #4834-2306-3595 vl 1 25
11.13 No Third .Part 13enef.iCiajy. This Agreement shall not be construed or deemed to
be an Agreement for the benefit of any third party or parties, and no third party or parties shall
have any claim or right of action hereunder for any cause whatsoever.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
OAK #4834-2306-3595 vl 1 26
IN WITNESS WHEREOF, this Agreement has been entered into by and between the
Parties as of the Effective Date.
CITY:
City of Rohnert Park, a
California municipal corporation
IM
APPROVED AS TO FORM:
By:
Michelle Marchetta Kenyon
City Attorney
ATTEST:
By:
JoAnne Buergler
City Clerk
Darrin W. Jenkins
City Manager
DEVELOPER:
Stadium RP Development Partners,
LLC, a California limited liability
company
By:
Name
OAK #4834-2306-3595 v1 1 27
Matthew J. Waken,
Manager
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT A
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LOCATION MAP
NO SCALE
AM'S v �,I
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CITY PARCEL
ASM r4.%-0461- 4
HINdF4RAUGH CRE£!C
0 200 500
SLAM OF ►MN 30
BEING SOUTH 69'34'00' EAST BETWEEN FOUND 3' BRASS
DISKS IN MONUMENT WELLS ALONG BUSINESS PARK DfNVE
f3CA1L1=x 1' - 200'
MARKING THE EASTERLY END OF A 230' MIUS CURVE
AND THE CENTERLINE INTERSECTION WITH REDWOOD DRIVE
AS SHOWN ON THE MAP ENTITLED ROHNERT BUSINESS
THIS EXHIBIT IS FOR GRAPHIC
PURPOSES ONLY, ANY ERRORS OR
PARK SUBOIVISION, FILED FOR RECORD IN BOOK 375 OF
OMISSIONS SHALL NOT Ai FECT THE
MAPS, PAGES 1O AND 11 SONOMA COUNTY RECORDS,
OEFA DESCRIPTION.
t AND
M A"M
PROPERTY Ac�ws� ON
CITY OF ROHNERT PARK
0-" of ROHNERT PARK
6750 COMMERCE BLVD,
CIN OF ROHNERT PARK
ROHNERT PARK, CA 94526
12,32 ACRES
TO
707 Wb -2234
MUW INVESTMENTS, LLC
A_Pl No, 143-040-124
PROPERTY ACQUISITION DEER
SCALE 1'-200' DATE' 11-15-16
aVrwo o rLE N0.
O=R u I
DOG, NO. 2001-17.32.31
mm ma
OAK #4834-2306-3595 v] 1
EXHIBIT B
DEPICTION OF MARTIN AVENUE IMPROVEMENTS
EXHIBIT B-2
ATTACHMENT 1
HOTEL rL PORTION TO BE CITY LANDS
PARCEL 3 ROWBURSED BY CITY PARCEL S
SW f TU l 9.50' 4.9' j
r� Fls7UR> {}fII
— 2X„_ �^X
t:1RE? FAL '' CL 2 AS .c j
AWAY GVTTER (URB cum- ,
MARMN AVENUE PER CM STO
PRIVATE STREET SECT ON
ALOW; CITY–PARCEL 5 FRONTAM
NO SCALE
irI
RESIDENTIAL - PARCEL 2
1�a
RETAIL - PARCEL 4
HOTEL - PARCEL 3 J
r.
CITY - PARCEL 5 r
PORTION OF PORTION OF MARTIN. AVE.
UART1N AVE. TO BE FIWED SOLELY
15�1� TO BE REU SURSED BY DEVFIOPER
BY CITY
I
PLAN
SCALE: 1`-200'
LEGEND
POR -110S OF UARTIN AW,
TOBE RUMBUR5E0 BY CITY
PORTION OF MAS TIN AVE TO BE
FUNDED SOLELY BY DEVELOPER
NOVEMBER 2016
OAK #4834-2306-3595 vl 1
Z��
4 200 300
SCAL.Ei
EXHIBIT C
PARTIAL ASSIGNMENT AND ASSUMPTION OF
DEVELOPMENT AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Attention:
(Space Above For Recorder's Use)
PARTIAL ASSIGNMENT AND ASSUMPTION
OF DEVELOPMENT AGREEMENT AND CONSENT OF CITY
THIS PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT
AGREEMENT AND CONSENT OF CITY (this "Assignment") is made effective as of
20 (the "Effective Date"), by and between STADIUM RP
DEVELOPMENT PARTNERS, LLC, a California limited liability company ("Assignor") and
a
("Assignee"), with reference to the following:
RECITALS
A. That certain real property described in Ex A, attached hereto and incorporated
herein by reference, (the "Property"), is subject to that certain development agreement entered by
and between the City and Assignor, which was approved pursuant to Ordinance No.
and recorded in the Official Records as Document No. (the
"Development Agreement").
B. Assignor has now entered into an with
Assignee, dated as of (the "Purchase Agreement"), pursuant to which, among
other things, Assignor has agreed to transfer and convey to Assignee all of Assignor's rights in
and to the portion of the Property described in LxhII)II B attached hereto (the "Assigned
Property"), and cause Assignor to assign to Assignee certain rights, title and interest in and to the
Development Agreement to the extent relating to the Property, as described below. Development
of on the Assigned Property in accordance with the Development
Agreement and entitlements referred to therein is referred to herein as the "Project." That portion
of the Property that is not the Assigned Property or has been otherwise assigned by Assignor in
accordance with the Development Agreement is referred to herein as the "Remaining Property."
OAK #4834-2306-3595 0 1
NOW, THEREFORE, Assignor and Assignee agree as follows:
1. Assignment. For and in consideration of the mutual covenants and agreements
contained in this Assignment, and other good and valuable consideration, the receipt and adequacy
of which is acknowledged, Assignor assigns to Assignee only the following rights and obligations
(referred to herein as the "Assigned Rights and Obligations") as these pertain to the Assigned
Property:
(a) [insert applicable sections of the DA]; and
(b) [insert applicable sections of the DA], as to the Assigned Property_.
Assignee hereby acknowledges that the Assigned Rights and Obligations are subject to the
timing and phasing of the development of the Property as set forth in the Development Agreement.
2. Remaining Obligations. Assignor acknowledges and agrees that it remains subject
to all rights and obligations set forth in the Development Agreement, except the Assigned Rights
and Obligations expressly set forth in Section 1 above (the "Remaining Rights and
Obligations"). The Remaining Rights and Obligations include without limitation the following:
(a) Sections [insert applicable sections of the DA]; and
(b) Sections [insert applicable sections of the DA], as to the Remaining
Property.
3. Acceptance and Assumption. Assignee hereby accepts the assignment of the
Assigned Rights and Obligations from Assignor, and assumes and agrees to perform all of the
Assigned Rights and Obligations.
4. Further Assurances. Assignor hereby covenants that it will, at any time and from
time to time upon written request therefor, execute and deliver to Assignee, its nominees,
successors and/or assigns, any new or confirmatory instruments and do and perform any other acts
which Assignee or its nominees, successors and/or assigns may request in order to fully transfer
possession and control of, and protect the rights of Assignee and its successors and/or assigns in,
all the rights, benefits and privileges intended to be transferred and assigned hereby. Assignee
hereby covenants that it will, at any time and from time to time upon written request therefor,
execute and deliver to Assignor, its nominees, successors and/or assigns, any new or confirmatory
instruments and do and perform any other acts which Assignor or its nominees, successors and/or
assigns may request in order to fully confirm and vest in Assignor and its successors and/or assigns
in, all the obligations, rights, benefits and privileges intended to be transferred by the acceptance
and assumption herein.
5. Successors. This Assignment shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
6. Counterparts. This Assignment may be executed in counterparts, each of which
shall be deemed an original, but all of which, taken together, shall constitute one and the same
instrument.
OAK #4834-2306-3595 vl 1
7. Amendment. This Assignment may only be amended or modified by a written
instrument executed by all of the parties hereto with the prior written consent of the City of Rohnert
Park.
8. Governing Law. The validity, interpretation and performance of this Assignment
shall be controlled by and construed under the laws of the State of California.
9. Attorneys' Fees. Should any dispute arise between the parties hereto or their legal
representatives, successors or assigns concerning any provision of this Assignment or the rights
and duties of any person in relation thereto, the party prevailing in such dispute shall be entitled,
in addition to such other relief that may be granted, to receive from the other party all costs and
expenses, including reasonable attorneys' fees, incurred by the prevailing party in connection with
such dispute.
10. Entire Agreement. This Assignment, together with the Purchase Agreement,
constitutes the entire agreement among the parties hereto with respect to the subject matter hereof,
and supersedes all prior understandings or agreements. In the event of any conflict between this
Assignment and the Purchase Agreement, the terms of the Purchase Agreement shall govern and
control.
11. Severability. If any term, covenant, condition or provision of this Assignment, or
the application thereof to any person or circumstance, shall to any extent be held by a court of
competent jurisdiction or otherwise by law rendered invalid, void or unenforceable, the remainder
of the terms, covenants, conditions or provisions of this Assignment, or the application thereof to
any person or circumstance, shall remain in full force and effect and shall in no way be affected,
impaired or invalidated thereby.
12. Notices. All notices shall be in writing, and shall be given in the manner prescribed
by Section 11.9 of the Development Agreement. Pursuant to Section 11.9 of the Development
Agreement, the address for Assignee is: [to be inserted]
14. AUtlioritv. Each individual executing this Assignment on behalf of a corporation
or other legal entity represents and warrants that: (a) he or she is duly authorized to execute and
deliver this Assignment on behalf of said corporation or other legal entity in accordance with and
without violating the provisions of its governing documents, and (b) this Assignment is binding
upon and enforceable against said corporation or other legal entity in accordance with its terms.
Any entity signing this Assignment on behalf of a corporation or other legal entity hereby
represents and warrants in its own capacity that it has full authority to do so on behalf of the
corporation or other legal entity.
IN WITNESS WHEREOF, the parties have entered into this Assignment as of the
Effective Date.
OAK #4534-2306-3595 v] 1
ASSIGNOR: STADIUM RP DEVELOPMENT
PARTNERS, LLC,
a California limited liability company
ASSIGNEE:
By:
Name: Matthew J. Waken
Its: Manager
a
By:_
Name:
Its:
CONSENT OF CITY
The City hereby consents to the foregoing Partial Assignment and Assumption of
Development Agreement, pursuant to Section 10.1 of the Development Agreement.
CITY:
City of Rohnert Park, a municipal
corporation
City Manager
Approved as to Form:
By:
City Attorney
Attest:
By:
City Clerk
OAK #4834-2306-3595 vl I
[The applicable Exhibit A and B will be inserted into execution version]
OAK #4834-2306-3595 v 1 1
AFFIDAVIT OF POSTING
Pursuant to California Government Code $ 36933 and S 40806
STATE OF CALIFORNIA
County of Sonoma
l, JoAnne Buergler, City Clerk for the City of Rohnert Park, declare this is a true and correct
copy of Ordinance No. 903.
SUMMARY OF ORDINANCE NO. 903 OF THE CITY OF ROHNERT PARK, CALIFORNIA,
APPROVING A DBVELOPMENT AGREEMENT BETWEEN THB CITY OF ROHNBRT PARI(
AND STADIT]M RP DEVELOPMENT PARTNERS, LLC, FOR DBVBLOPMBNT OF THB
RBSTDENCES AT FrVE CREEK PROJECT (APN 143-040-124)
was published on January 13,2017 and January 27 ,2017, as required by law, and posted
in five (5) public places in said City, to:
www.rpcitv.orq for website posting
City Hall
130 Avram Avenue
Public Safety Main Station
500 City Center Drive
Rohnert Park Community Center
5401 Snyder Lane
Rohnert Park - Cotati Regional Library
6250 Lynne Conde Way
A certified copy of the full text Ordinance was posted at the City Clerk's office, 130 Avram
Avenue, Rohnert Park, California 94928 on January 11,2017 and January 25, 2017 .
ed
Su and sworn to before me this 6th day of February
SS
Caitlin Saldanha, Depu City Clerk
CERTIFICATION OF PUBLICATION IN
"The Community VOICE"
(Published every Friday)
in the
SUPERIOR COURT
ofthe
STATE OF CALIFORNIA
ln and For the County of Sonoma
COUNTY OF SONOMA
City of Rohnen Park
Summary of Orclinance No. 903
STATE OF CALIFORNIA, The undersigned does herebl, certily and declare: Tliat at all tilnes hereinafter srvorn. deposes
a¡d says: That at all tirnes hereinafter mentionecl she rvas a citizen ofthe United States, over the age ofeighteen years and a
resident of said county and was at all said times the principal clerk of the printer and publisher of The Community VOICE. a
uewspapel of genc-ral circulation. published in the City of Rohnert Palk, in said Courrty o1- Sononra. State of California; tliat
The Community VOICE is and was at all times herein mentioned, a nervspaper of'general circulation as that term is delÌned
by Section 6000 ofthe Covelnment Codel its status as such nervspapet'ofgeneral circulation having been establislted by
Court Decree No, 3 5815 ol the Supelior Courl of the State o1'California" in and fol the County of Sonorna, Department No. 1
thereof; and as provided by said Section 6000, is published 1'or the dissemination of local and teleglaphic uews and
ir.rtelligence ofa general chalacter, liaving a bona fìde subscliption list olpaying subscribers. and is not devoted to the
interest, or published fbr the entertainmer'ìt or instruction of a particular class, profèssion, trade, calling, race ot'denomination,
ol'for the entefiainment and instruction ofsuch classes, prolèssions. tlades, callings, races or clenominations; that at all said
tirnes said newspaper has been established and published in the said City ofRohnert Park, in said County and State at regular
iutervals for more than one year plece ding the fìrst publication of this notice herein mentioned; that said notice was set in
type not smaller than nor.r-pareil and rvas preceded with words printed in black face type no srnaller than non-pareil,
dt--sclibing and expressing in general terms. the purport and character of l.he notice intended to be given; that the " City o1'
Iìohnert Park. Sumur¿rry of Oldinance 903" olwhich the annexed is a pliniecl copy, was published in said newspaper at least
,_ 1 consecutive time (s), conunencing on the 27 clay ol'January. 20 1 7 and enciing on the 27 day ol Januat'y, 2017.
I [-IEREBY CERTIFY AND DECLARÊ tJNDtlR 1'HE PIINALTY Ol.' perjury that the foregoing is ttue and correct
IIXECIJTED this 27 day of .lanuary, 2017 at Rohnert Palk. Califolnia
Signed
t¿ur*¿---, 7'?"^
Claudia Smitli (Ch ief Clerk
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