2018/01/23 City Council Resolution 2018-009RESOLUTION NO. 2018-009
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING AN OFF-SITE PUBLIC IMPROVEMENT AND
TERMINATION AND SUPERSESSION OF DEFERRED IMPROVEMENT
AGREEMENTS WITH THE PACIFIC HOSPITALITY SONOMA, LLC AND STADIUM
RP DEVELOPMENT PARTNERS, LLC
WHEREAS, on June 10, 2008, the City Council of the City of Rohnert adopted
Resolution No 2008-086 approving the Final Environmental Impact Report (EIR) for the
Stadium Area Master Plan (the `BIR") which included commercial, institutional and high density
residential land uses and anticipated, among other things, utility and surface improvements; and
WHEREAS, on November 24, 2009, the City Council of the City of Rohnert Park
adopted Resolution 2009-128 authorizing, approving and accepting Parcel Map No. 180
Subdivision and Deferred Improvement Agreement For Stadium Lands Area; and
WHEREAS, on November 12, 2013, the City Council of the City of Rohnert Park
adopted Resolution No. 2013-152 approving a Negative Declaration for changes to the Stadium
Area Master Plan to relocate a portion of the institutional land uses intended to serve as a future
public safety station but with no changes to the high density residential land uses or requirements
for infrastructure construction; and
WHEREAS, on January 10, 2017, the City Council of the City of Rohnert Park adopted
Resolution No. 2017-008 through 011 approving the following to the Stadium Area Master Plan:
• An Initial Study to change the land use for a portion of the area to high density
residential and public;
• A Mitigated Negative Declaration;
• A General Plan Amendment;
• A Final Development Plan for the Five Creek Subdivision;
• A Development Agreement with Stadium RP Development Partners;
• A Tentative Map for the Five Creek Subdivision (Map titled "Residences at Five
Creek"); and
WHEREAS, on July 25, 2017, the City Council of the City of Rohnert Park adopted
Resolution No. 2017-091, approving the Five Creek Subdivision Final Map and executing
another Deferred Improvement Agreement for the newly subdivided property; and
WHEREAS, the Development Agreement requires, among other things that Stadium RP
Development Partners, LLC construct off-site utility and surface improvements to serve the Five
Creek Subdivision; and
WHEREAS, Stadium RP Development Partners, LLC and Pacific Hospitality Sonoma,
LLC (Developers) will jointly enter an Improvement Agreement for a portion of the overall
improvements, consisting of a portion of the utilities serving the Hotel Property and Martin
Avenue; and
WHEREAS, the Developers have submitted plans and specifications for a portion of the
overall improvements ("Hotel Offsite Improvement Plans") which have been reviewed by the
City Engineer and determined to be technically accurate and in conformance with the
Development Agreement and conditions of approval for the project; and
WHEREAS, the Developers have posted labor and materials and performance bonds in
the amount of $496,783 to cover the construction of the water, sewer, storm water, and grading
aspects of the Hotel Offsite Improvement Plans; and
WHEREAS, the City and Developers desire to enter into an Off -Site Public
Improvement Agreement and Termination of the Deferred Improvement Agreements for the
Hotel Property only for the proposed construction to more thoroughly define the terms and
conditions of the construction and dedication obligations under the Development Agreement; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert
Park that, based on the evidence presented at the duly noticed public meeting of January 10,
2017, the City Council of the City of Rohnert Park finds that the public improvements and
activities were adequately described and mitigated in the Stadium Area Master Plan EIR, and that
no other CEQA analysis is warranted.
BE IT FUTHER RESOLVED that it does hereby authorize and approve the Off-site
Public Improvement and Supersession of Deferred Improvement Agreements with Pacific
Hospitality Sonoma, LLC and Stadium RP Development Partners, LLC for the Hotel Property
(Exhibit A).
BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed
to execute the Off-site Public Improvement Agreement and Termination and Supersession of
Deferred Improvement Agreements with the Pacific Hospitality Sonoma, LLC and Stadium RP
Development Partners, LLC for the Hotel Property, in substantially similar form to the agreement
attached hereto and incorporated by this reference as Exhibit A subject to minor modifications
approved by the City Manager or City Attorney.
(2)
2018-009
DULY AND REGULARLY ADOPTED this 23rd day of January, 2018.
CITY OF ROHNERT PARK
Pam Stafford, Mayor
ATTEST:
nne M. Buergler, Cfty Clerk
Attachment: Exhibit A
ARAN[ VU- BELI+ORTE. MACKENZIE. 101 C CALUNAN:063iri STAFFORD. Py
AYES; ( ) NOM (u ) ABSENT: ( ! ) ABSTAIN: ( 01 )
(3)
2018-009
RECORDING REQUESTED BY ) Exhibit A to Resolution
AND WHEN RECORDED MAIL TO: )
)
City of Rohnert Park )
130 Avram Avenue )
Rohnert Park, California 94928-2486 )
Attention: City Clerk )
(Space Above This Line for Recorder's Use Only)
Exempt from recording fee per Gov. Code § 27383.
OFF-SITE PUBLIC IMPROVEMENT AND TERMINATION AND SUPERSESSION OF
DEFERRED IMPROVEMENT AGREEMENTS
CITY OF ROHNERT PARK
Pacific Hospitality Sonoma, LLC and Stadium RP Development Partners, LLC
Martin Avenue Utilities and Associated Improvements
This Off -Site Public Improvement and Termination and Supersession of Deferred Improvement
Agreements (the "Agreement") is made and entered into on this day of 2018
(the "Effective Date") by and between Pacific Hospitality Sonoma LLC ("Pacific Hospitality") and
Stadium RP Development Partners, LLC ("Stadium RP") (collectively, the "Developer"), and the CITY
OF ROHNERT PARK, a California municipal corporation ("City"). City, Pacific Hospitality and Stadium
RP are sometimes referred to hereinafter individually as "Party" and collectively as "Parties".
RECITALS
A. City previously owned certain real property located west of U.S. Highway 101 and north
of the Rohnert Park Expressway in the Stadium Lands Master Plan Area of the City (the "City Property").
The City Property consisted of Lots 1, 2, 3, and 4 and adjoining streets, as shown on Parcel Map 180,
recorded on December 11, 2009, in Book 736 of Maps, Pages 30-32, in the Official Records of Sonoma
County (the "Parcel Map").
B. On November 29, 2009, the City executed that certain deferred improvement agreement
which was recorded on December 11, 2009, as Instrument No. 2009119214 in the Official Records of
Sonoma County (the "First Deferred Improvement Agreement "), which applied to and provided for the
deferred construction of subdivision improvements for all of the property subject to the Parcel Map — Lots
1, 2, 3, and 4 — without differentiation as to the work required for each lot (the "Parcel Map").
C. The City and Stadium RP entered into that certain Development Agreement, recorded in
the Official Records of Sonoma County as Instrument No. 2017012313 on February 16, 2017 (the
"Development Agreement") regarding the development of portions of Lot 1 of the Parcel Map, with a
hotel and residential and commercial development.
D. On July 25'1', 2017, the City executed that certain deferred improvement agreement (the
"Second Deferred Improvement Agreement "), which is recorded as Instrument No. 2017098871 in the
Official Records of Sonoma County, which applied to and provided for the deferred construction of
subdivision improvements for all of the property subject to the Final Map — Lots 1, 2, 3, 4, and 5 —
without differentiation as to the work required for each lot.
E. The City then subdivided Lot 1 of the Parcel Map into Lots 1, 2, 3, 4, and 5 as shown on
the "Five Creek Subdivision" Final Map, recorded on August 2, 2017, in Book 787 of Maps, Pages 38-42,
in the Official Records of Sonoma County (the "Final Map").
F. City conveyed Lot 3 of the Final Map to Stadium RP pursuant to that certain Purchase
and Sale/ Closing Agreement between City and 356 Advisors, Inc and MJW Investments, LLC,
predecessors -in -interest to Stadium RP (the "PSA ").
G. Stadium RP has subsequently conveyed Lot 3 of the Final Map ("Cambria Hotel
Property") to Pacific Hospitality, and Pacific Hospitality has received entitlements from the City to
develop thereon a hotel project and to construct improvements required of Lot 3, in accordance with the
terms of the PSA and the Development Agreement.
H. The Cambria Hotel Property consists of a 2.34 acre site located on Labath Avenue
northerly of Martin Avenue identified as Assessor's Parcel Number 143-040-138, in the Official Records
of Sonoma County illustrated in Exhibit A, attached hereto and incorporated by this reference.
1. The Cambria Hotel Property is subject to both the First Deferred Improvement
Agreement and Second Deferred Improvement Agreement ("Deferred Improvement Agreements") which
obligates Developer to design and construct certain improvements for the benefit of the City and the
public as required by the Tentative Parcel Map via City Council Resolution Number 2017-11 and the
conditions of approval contained in City Council Resolution No. 2017-10 adopted January 10, 2017, and
the Development Agreement as listed as Ordinance 903, as further set forth thereon and therein (the
"Project Approvals").
J. Developer has submitted plans, specifications and drawings for the improvements
prepared by Civil Design Consultants, Inc., and titled Residences at Five Creek Improvements Plans,
Martin Avenue and Hinebaugh Creek Outfall-, 13 Sheets (Sheets 1-L1.1), which the water, sewer, storm
water, and grading features were approved by the City Engineer on the _ day of
201_(the "Improvements").
K. To satisfy the obligations applicable to the Cambria Hotel Property under the Deferred
Improvement Agreements and to satisfy the requirements for improvement of the Cambria Hotel
Property, Developer proposes to design, construct, and install the Improvements as generally described in
Recital J. The Parties desire the obligation to construct the Improvements under this Agreement to
supersede and replace any obligations of Pacific Hospitality and Stadium RP as to the Cambria Hotel
Property under the Deferred Improvement Agreements and, following execution of this Agreement, for
the Deferred Improvement Agreements to terminate and be of no further force as to the Cambria Hotel
Property.
AGREEMENT
NOW, THEREFORE, in consideration of the faithful performance of the terms and
conditions set forth in this Agreement, the parties hereto agree as follows:
1. Incorporation of Recitals. The foregoing Recitals are true and correct and, together
with the Development Agreement, the Project Approvals and the requirements of Chapter 16.16 of
the RPMC, are hereby incorporated into and form a material part of this Agreement
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2. Termination of Obligations Under Deferred Improvement Agreements. Upon the
execution and recordation of this agreement, the provisions of this Agreement shall contain all of the
obligations of the Cambria Hotel Property for the construction, implementation, and financing of on-site
or off-site improvements pursuant to this Agreement and the Deferred Improvement Agreements, and the
Deferred Improvement Agreements shall be terminated, superseded, and of no further force and effect as
to the Cambria Hotel Property, as described in Exhibit "A". The parties acknowledge and agree that the
Improvements, as defined herein, include all of the Improvements stipulated in the Deferred Improvement
Agreements attributable to The Cambria Hotel Property.
Purpose and Effective Date
3.1 Purpose. The purpose of this Agreement is to guarantee completion of the
Improvements and ensure satisfactory performance by Developer of Developer's obligations to satisfy the
conditions for development of the Cambria Hotel Property.
3.2 Effective Date. The Effective Date of this Agreement shall be as set forth above.
Upon execution and recordation of this Agreement, City agrees to record a release and satisfaction
removing the Deferred Improvement Agreements against the title of the Cambria Hotel Property. City
further agrees to issue whatever addition written evidence of termination of the Deferred Improvement
Agreements as to the Cambria Hotel Property as may be reasonably required by a title company to insure
title to said property free from the lien of the Deferred Improvement Agreement.
4. Property SuWect to A }reement. The property which is the subject of this Agreement is
located in the City of Rohnert Park, Sonoma County, California, and is described in Exhibit A, attached
hereto.
Improvements,
5.1 Duty to Install Iprovemews. Developer will design, construct, install and
complete, or cause to be constructed, installed and completed, at the Developer's sole cost and expense,
the Improvements, in accordance with the improvement plans described in Recital J. above (the
"Improvement Plans") and to the satisfaction of the City Engineer, in his/ her reasonable discretion.
Developer will also supply all labor and materials therefore, all in strict accordance with the terms and
conditions of this Agreement. The construction, installation and completion of the Improvements
including all labor and materials furnished in connection therewith are hereinafter referred to collectively
as the "Work."
City shall not be responsible or liable for the maintenance or care of the Improvements until City formally
approves and accepts them in accordance with its policies and procedures. City shall exercise no control
over the Improvements until approved and accepted. Any use by any person of the Improvements, or any
portion thereof, shall be at the sole and exclusive risk of the Developer at all times prior to City's
acceptance of the Improvements. Developer shall maintain all the Improvements in a state of good repair
until they are completed by Developer and approved and accepted by City. Maintenance shall include, but
shall not be limited to, repair of pavement, curbs, gutters, sidewalks, signals, parkways, water mains, and
sewers; maintaining all landscaping in a vigorous and thriving condition reasonably acceptable to City;
removal of debris from sewers and storm drains; and sweeping, repairing, and maintaining in good and
safe condition all streets and street improvements. It shall be Developer's responsibility to initiate all
maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work when
notified to do so by City. If Developer fails to properly prosecute its maintenance obligation under this
section, City may do all work necessary for such maintenance and the cost thereof shall be the
responsibility of Developer and its surety under this Agreement. Prior to undertaking said maintenance
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work, City agrees to notify Developer in writing of the deficiencies and the actions required to be taken
by the Developer to cure the deficiencies. Developer shall have thirty (30) days from the date of the
notice within which to correct, remedy or cure the deficiency. If the written notification states that the
problem is urgent and relates to the public health and safety, then the Developer shall have twenty-four
(24) hours to correct, remedy or cure the deficiency. City shall not be responsible or liable for any
damages or injury of any nature in any way related to or caused by the Improvements or their condition
prior to acceptance.
5.2. Completion Date. Developer will complete the Work within one year of the
Effective Date or as required by the Conditions of Approval for The Residences at Five Creek Project,
whichever is sooner. All Work will be completed in a good and workmanlike manner in accordance with
accepted design and construction practices.. This completion date may be extended by the City in its sole
and absolute discretion at the request of Developer, which request shall be accompanied by a written
assurance acceptable to the City Attorney that the securities required by Section 6 shall remain
enforceable throughout the term of the extension.
5.3. Estimated Cost of Work. The estimated cost of the Work is Four Hundred
Ninety -Six Thousand, Seven Hundred and Eighty Three Dollars and No Cents ($496,783.00).
Notwithstanding this estimate, Developer hereby acknowledges and agrees that (a) the actual costs to
complete the Work may significantly exceed this estimate, (b) this estimate in no way limits Developer's
financial obligation, and (c) that Developer is obligated to complete the Work at its own cost, expense,
and liability.
5.4. Modifications to the Plans. Approval of this Agreement by City does not release
Developer of its responsibility to correct mistakes, errors or omissions in the Improvement Plans. If, at
any time, in the opinion of the City Engineer, in his/her reasonable discretion, the Improvement Plans are
deemed inadequate in any respect Developer agrees to make such modifications, changes or revisions as
necessary in order to complete the Work in a good and workmanlike manner in accordance with accepted
design and construction standards.
5.5. Foreman, or Superintendent. Developer shall give personal attention to the Work.
A competent foreman or superintendent, satisfactory to the City Engineer, in his/her reasonable
discretion, with authority to act for and on behalf of Developer, shall be named in writing by Developer
prior to commencement of the Work, shall be present on the Property during the performance of the
Work. Any change in the superintendent will require advance notification to the City Engineer and
concurrence of the City Engineer and the Engineer of Record for the Improvement Plans.
5.6. Encroachment Permits. Developer shall obtain, at its sole cost and expense, any
encroachment permits required by the City in order to perform the Work.
5.7. Inspection; All of the Improvements shall be constructed and installed to the
satisfaction of the City Engineer, in his or her reasonable discretion. City and its authorized agents shall,
at all times during the construction of the Improvements, have free access to the Improvements and shall
be allowed to examine and inspect the Improvements and all material used and to be used in the
Improvements to confirm compliance with City Plans and Specifications.
5.8. Commencement of Construction and Inspection. Developer and its contractor
or subcontractors shall not commence construction of the Improvements until Developer has received
written authorization from City to proceed. Written authorization shall be in the form of signed
approved plans along with permit issuance, including any encroachment permit required to carry on
construction activities in the City's right-of-way as described in Section 5.6. All work performed on
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the Improvements shall be done in strict compliance with the City approved plans, specifications and
the contract documents and in a good and workmanlike manner. All work performed by Developer,
its contractor or agents to construct the Improvements shall be subject to inspection by City. All fees
and costs to construct the Improvements shall be borne solely by Developer (including the applicable
Inspection Fee in accordance with the City's adopted Engineering Fee Schedule). Inspection by City
or its employees or agents shall not relieve Developer of its liability for design defects or improper
or inadequate workmanship.
5.9. City's Inspection, Administration and Testing, Costs. Developer shall pay to City
the actual cost for all inspection, administration and testing services furnished by City in connection with
this Agreement, including those performed by consultants under contract with the City (the "City Costs").
City agrees not to double charge Developer (through the imposition of both a processing fee and a
consultant charge) for any individual monitoring, inspection, testing or evaluation service. In addition,
City agrees to limit its use of outside consultants to those reasonably necessary or desirable, as
determined by the City Manager or his designee in his reasonable discretion, to accomplish the requisite
inspection, administration and monitoring. Concurrently with the execution of this Agreement,
Developer shall deposit an amount equal to Twenty -Five Thousand Dollars ($25,000) (the "Estimated
Cost") with City for the payment of the City Costs. In the event that the Estimated Cost is insufficient to
cover the actual City Costs incurred, Developer shall, upon notice in writing by the City Engineer, deposit
such additional amount as may be required to pay the City Costs. Any amount of the Estimated Cost,
initial deposit or additional amounts deposited remaining after payment of all City Costs will be returned
to Developer. City may, at its discretion, deposit such funds in an interest-bearing account and retain any
and all interest earned.
5.10. No W a aver bXfity. Inspecting of the work and/or materials, or approval of work
and/or materials, or a statement by an officer, agent or employee of the City indicating the work complies
with this Agreement, or acceptance of all or any portion of the work and/or materials, or payments
thereof, or any combination of all of these acts shall not relieve Developer or its obligation to fulfill this
Agreement; nor is the City by these acts prohibited from bringing an action for damages arising from the
failure to comply with this Agreement.
5.11. Erosion Control. Pursuant to Rohnert Park Municipal Code Chapter 15.52,
Developer shall be responsible for the control of erosion on the Property and improvement areas and shall
prevent its entry into the storm drainage system.
5.12. Prevailing Wades, The Improvements do not constitute a "public work" as
defined in the California Labor Code, section 1771, et seq ("Labor Code Regulations") because the
work is not being paid for in whole or in part out of public funds. City and Developer acknowledge
that the construction of the Improvements is not subject to the payment of prevailing wages. Further,
Developer agrees to defend, indemnify and hold City, its elected officials, officers, employees, and
agents free and harmless from any and all claims, damages, suits or actions arising out of or
incident to Developer's obligations under this section and the payment of prevailing wages.
5.13. Contractor Licenses. All work performed on the Improvements shall be
done only by contractors licensed in the State of California and qualified to perform the type of
work required and comply with the City's Business License Ordinance.
5.14. Repair of Work Damaged During Construction. Developer agrees to repair or
have repaired in a timely manner at its sole cost and expense all public roads, streets, or other public or
private property damaged as a result of or incidental to the Work or in connection with the development
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of the Property or to pay to the property owner of any damaged road, street or property the full cost of
such repair. In addition, Developer shall obtain the written acceptance of such repair or payment from any
owner whose private property was repaired by Developer or to whom Developer has paid the full cost of
such repair in accordance with this Section 5.14. City shall be under no obligation whatsoever to accept
the Work completed under this Agreement until such time as all repairs have been completed or have
been paid for and written acceptances have been provided to the City Engineer, except as otherwise
provided in section 5.18.1
5.15. Payments. Developer agrees that it will pay, when due, all those furnishing labor
or materials in connection with the Work. Developer further agrees that pursuant to Government Code
section 66499.7, the Labor and Materials Bond provided by Developer in accordance with Section 6.1.2
of this Agreement shall not be released if any mechanics liens or stop notices are outstanding, unless said
liens are released by bond in compliance with Civil Code section 3143.
5.16. Liability for Worlk Prior to f=ormal AcceplancG. Until the City Council has
formally accepted the Improvements, Developer shall be solely responsible for all damage to the
work, regardless of cause, and for all damages or injuries to any person or property at the work
site, except damage or injury due to the sole negligence of City, or its employees. Developer
shall replace or repair any portion of the Improvements that have been destroyed or damaged
prior to final acceptance of completed work by the City Council or the City Engineer. Any such
repair or replacement shall be to the satisfaction and subject to the approval of the City Engineer.
Developer shall repair to the satisfaction of the City Engineer any damage to the utilities systems
or other public improvements that may occur in connection with the Improvements work.
5.17. C'.om pic:tion of Work. After Developer (a) completes the Work in accordance
with the Improvement Plans and the terms and conditions of this Agreement, (b) repairs any road, street,
or private or public property damaged as a result of the Work or pays the full cost of such repair to the
owner whose property was damaged and (c) obtains the written acceptance of such repair or payment
from any owner whose private property was repaired by Developer or to whom Developer paid the full
cost of such repair, Developer will provide City with a written notice of completion, together with copies
of all written acceptances.
5.18. Final Acceptance.
5.18.1 Notice of Completion. Within thirty (30) days of receipt of Developer's
written notification pursuant to Section 5.17 above, City Engineer shall inspect the Work and repairs and
review the written acceptances, if any, and send Developer a written notice stating whether the Work and
repair are complete to the satisfaction of the City Engineer, in his/her reasonable discretion, and whether
the written acceptances have been provided. If the Work and repair are, in the opinion of the City
Engineer, not complete and satisfactory, and/or written acceptances have not been provided, the City
Engineer will list the deficiencies that must be corrected to find the Work and repair complete and
satisfactory. Upon satisfactory completion of the Work and repair and submittal of written acceptances,
the City Engineer will send Developer a written notice of satisfactory completion. The requirement for
written acceptances may be waived by the City Engineer, in his/her reasonable discretion, if Developer
has made commercially reasonable efforts to obtain such acceptances. City Engineer's failure to respond
to Developer's written notification within thirty (30) days will not be deemed a breach or default under
this Agreement.
5.18.2 Acceptance of Improvements. After sending Developer a written notice
of satisfactory completion pursuant to Section 5.18.1, the City Engineer will recommend acceptance of
the Improvements, or a portion thereof, to the City Council. In conjunction with such recommendation,
the City Engineer will recommend the acceptance of the offers of dedication shown on the final map for
the Property. The acceptance of the Improvements, offers of dedication and right-of-way and easements,
if any, shall be by resolution. Upon adoption of such resolution, the City Engineer shall record a notice of
acceptance, in a form to be approved by the City Attorney, in the Official Records of Sonoma County.
5.19. Warranty Period; Repair and Reconstruction. Without limiting the foregoing,
Developer expressly warrants and guarantees all work performed under this Agreement and all materials
used in the Work for a period of one (1) year after the date of recordation of the notice of acceptance of
the improvements in accordance with Section 5.18. If, within this one (1) year period, any Improvement
or part of any Improvement installed or constructed, or caused to be installed or constructed by
Developer, or any of the work done under this Agreement, fails to fulfill any of the requirements of the
Improvement Plans or this Agreement, Developer shall, without delay and without cost to City, repair,
replace or reconstruct any defective or otherwise unsatisfactory part or parts of the Work or Improvement
to the satisfaction of the City Engineer. Should Developer fail to act promptly, by failing to repair, replace
or reconstruct work thirty (30) days after notification by City, or in accordance with this requirement, or
should the exigencies of the situation require repairs, replacements or reconstruction to be made before
Developer can be notified, City may, at its option, make the necessary repairs, replacements or perform
the necessary reconstruction and Developer shall pay to the City upon demand the actual cost of such
repairs, replacements or reconstruction.
5.20. Ctecord Drawing
L. Upon completion of the Improvements and prior to final
acceptance by the City Council, Developer shall deliver to City one electronic file, in a format
specified by the City Engineer, AutoCAD files, and one mylar copy of "as -built" drawings. These
drawings shall be in a form acceptable to the City Engineer, shall be certified by an engineer
licensed by the State of California as to accuracy and completeness, and shall reflect the
Improvements as actually constructed, with any and all changes incorporated therein. Developer
shall be solely responsible and liable for ensuring the completeness and accuracy of the record
drawings.
5.21. Ownership of linprovemcnts. From and after acceptance of the
Improvements by formal action of the City Council, ownership of the Improvements shall be
vested exclusively in City.
6. Security.
6.1 Performance Labor and Materials and Warrant Shy. In accordance with
Sections 16.16.060 through 16.16.070 of the Rohnert Park Municipal Code, Developer will furnish and
deliver to City, within the times set forth below, the following surety bonds, each of which must be issued
by a surety company duly and regularly authorized to do general surety business in the State of California,
or an irrevocable assignment of funds or letter of credit as may be acceptable to the City Attorney.
6.1.1 Per €in•inance Secon•it . Developer shall furnish and deliver performance
security in the amount of Four Hundred Ninety -Six Thousand, Seven Hundred and Eighty Three Dollars
and No Cents ($496,783.00), concurrently with the execution of this Agreement, which must meet the
requirements of Government Code Section 66499. 1, if applicable, and Rohnert Park Municipal Code
Section 16.16.070 and be acceptable to the City Attorney. The security shall be conditioned upon the
faithful performance of this Agreement with respect to the Work and shall be released by the City
effective upon the date of recordation of the notice of acceptance of the improvements as described in
Section 5.18.2 and Developer's delivery of the Warranty Security described in Section 6.1.3.
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6.1.2 Labor and Materials Security. Developer shall furnish and deliver labor
and materials security in the amount of Four Hundred Ninety -Six Thousand, Seven Hundred and Eighty
Three Dollars and No Cents ($496,783.00), concurrently with the execution of this Agreement which
security must meet the requirements of Government Code Section 66499.2, if applicable, and Rohnert
Park Municipal Code Section 16.16.070 and be acceptable to the City Attorney. The security shall secure
payment to the contractor(s) and subcontractor(s) performing the Work and to all persons furnishing
labor, materials or equipment to them. The City shall retain each security until both (i) the City accepts
the Work in accordance with Section 5.18 above and (ii) the statute of limitations to file an action under
Civil Code section 3114 et seq. has expired. After said date, the security may be reduced by the City
Engineer to an amount not less than the total amount claimed by all claimants for whom claims of lien
have been recorded and notice given in writing to the City Council. The balance of the security shall be
retained until the final settlement of all such claims and obligations. If no such claims have been
recorded, the security shall be released in full by the City Engineer.
6.1.3. Warranty Security. Developer shall furnish and deliver warranty security
in the amount specified in section 16.16.070 c. of the Rohnert Park Municipal Code. The amount of
Seventy -Four Thousand, Five Hundred and Seventeen Dollars and Forty Five Cents ($74,517.45) shall be
provided upon acceptance of the Improvements and prior to release of the Performance Security. The
security shall be in a form acceptable to the City Attorney and shall guarantee and warranty the Work for
a period of one (1) year following the date of recordation of the notice of acceptance of the improvements
against any defective work or labor done, or defective materials furnished.
6.2. Additional Security. If either upon execution of this Agreement or during the
course of performance the City considers that it is necessary to have Developer post additional security,
the City may require either a cash deposit or a surety bond guaranteeing performance in a form and signed
by sureties satisfactory to it. The condition of the security shall be that if Developer fails to perform its
obligation under this Agreement, the City may in the case of a cash bond act for it using the proceeds or
in the case of a surety bond require the sureties to perform the obligations of the Agreement.
I ndernnity and Insurance.
7.1 Indemnification. Developer agrees to indemnify, defend and hold the City, its
elective and appointed boards, commissions, officers, agents, employees and consultants, harmless from
and against any and all claims, liabilities, losses, damages or injuries of any kind (collectively, "Claims")
arising out of Developer's, or Developer's contractors', subcontractors', agents' or employees', acts,
omissions, or operations under this Agreement, including, but not limited to, the performance of the
Work, whether such acts, omissions, or operations are by Developer or any of Developer's contractors,
subcontractors, agents or employees, except to the extent such Claims are caused by the sole negligence
or willful misconduct of the City. This indemnification includes, without limitation, the payment of all
penalties, fines, judgments, awards, decrees, attorneys' fees, and related costs or expenses, and the
reimbursement of City, its elected officials, officers, employees, and/or agents for all legal expenses and
costs incurred by each of them.
The aforementioned indemnity shall apply regardless of whether or not City has
prepared, supplied or approved plans and/or specifications for the Work or Improvements and regardless
of whether any insurance required under this Agreement is applicable to any Claims. The City does not
and shall not waive any of its rights under this indemnity provision because of its acceptance of the bonds
or insurance required under the provisions of this Agreement. Developer's obligation to indemnify City
shall survive the expiration or termination of this Agreement.
7.2. Insurance. Developer shall maintain Commercial General Liability Insurance
protecting the City from incidents as to bodily injury liability and property damage liability that may
occur as a result of the Work and additional repairs. Developer shall provide certificate(s) of insurance
and endorsements to City before any Work commences. The insurance policy shall contain, or be
endorsed to contain, the following provisions:
(1) The City, its officers, elected officials, employees, consultants, agents and
volunteers are to be covered as additional insured's as respects to liability arising
out of activities performed by or on behalf of Developer. The coverage shall
contain no special limitations on the scope of protection afforded to the City, its
officers, elected officials, employees, consultants, agents and volunteers.
(2) The amounts of public liability and property damage coverage shall not be less
than $3,000,000 (Three Million Dollars) per occurrence for bodily injury,
personal injury and property damage.
(3) The insurance shall be maintained in full force until the work has been completed
to the satisfaction of the City Engineer.
(4) The insurance policy shall provide for 30 days' notice of cancellation to the City.
The policy shall not be cancelled earlier than nor the amount of coverage be
reduced earlier than 30 days after the City receives notice from the insurer of the
intent of cancellation or reduction.
(5) Any failure to comply with the reporting provisions of the policy shall not affect
the coverage provided to the City, its officers, elected officials, employees,
consultants, agents and volunteers.
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(6) Developer's insurance coverage shall be primary insurance as respects the City,
its officers, elected officials, employees, consultants, agents and volunteers. Any
insurance or self-insurance maintained by the City, its officers, elected officials,
employees, consultants, agents and volunteers shall be in excess of Developer's
insurance and shall not contribute to it.
(7) Any deductibles or self-insured retentions must be declared to and approved by
City. At the option of City, either: (a) the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects City, its elected officials,
officers, employees, agents, and volunteers; or (b) Developer and its contractors
shall provide a financial guarantee satisfactory to City guaranteeing payment of
losses and related investigation costs, claims, and administrative and defense
expenses.
(8) Developer and Developer's insurance company agree to waive all rights of
subrogation against City, its officers, elected officials, employees, agents and
volunteers for losses paid under Developer's workers' compensation insurance
policy which arise from the work performed by Developer.
In the event that Developer's insurance is cancelled, Developer shall provide replacement coverage or all
work must cease as of the cancellation date until replacement insurance coverage is provided.
7.3. Workers' Compensation Insurance. Developer shall provide, or cause to be
provided, Workers' Compensation insurance as required by law, and shall cause its contractors and their
subcontractors, agents and representatives to also maintain Workers' Compensation insurance as required
by law. No Work shall commence until such Workers' Compensation insurance is obtained and in full
force and effect.
7.4. Other Insurance Requirements. Developer shall:
(1) Prior to taking any actions under this Agreement, furnish City with properly
executed certificates of insurance which shall clearly evidence all insurance
required in this section and provide that such insurance shall not be canceled,
allowed to expire or be materially reduced in coverage except on thirty (30)
days prior written notice to City.
(2) Provide to City certified copies of endorsements and policies if requested by City,
and properly executed certificates of insurance evidencing the insurance required
herein.
(3) Replace or require the replacement ol'certificates, policies and endorsements for
any insurance required herein expiring prior to completion and acceptance of the
Improvements.
(4) Maintain all insurance required herein from the time of execution of this
Agreement until the acceptance of the Improvements.
(5) Place all insurance required herein with insurers licensed to do business in
California.
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Breach of Agreement; Opportunily to Cure' Remedies.
8.1. Notice oi'Breach and Default. The occurrence of any of the following constitutes
a breach and default of this Agreement:
(1) Developer refuses or fails to complete the Work within the time set forth herein
or abandons the Work.
(2) Developer assigns the Agreement without the prior written consent of City.
(3) Developer is adjudged bankrupt or makes a general assignment for the benefit of
creditors, or a receiver is appointed in the event of Developer's insolvency.
(4) Developer or Developer's contractors, subcontractors, agents or employees, fail
to comply with any terms or conditions of this Agreement.
(5) Any delay in the construction of any portion of the Work or repairs, which in the
reasonable opinion of the City Engineer, endangers public or private property.
The City may serve written notice of breach and default upon Developer and the financial institution
holding the security.
8.2. Breach of Agreement, Performance by City. If the City gives Developer notice,
under Section 8. 1, of breach and default of this Agreement, the City may proceed to complete the Work
by contract or other method the City considers advisable, at the sole expense of Developer. Developer,
immediately upon demand, shall pay the costs and charges related to the Work and any subsequent
repairs. City, without liability for doing so, may take possession of and utilize in completing the Work
and repairs, if any, such materials and other property belonging to Developer as may be on or about the
Property and necessary for completion of the work. In the event of default, the financial institution
holding the security shall be liable to City to pay the face amount of the bonds, as specified under
Section 6.
8.3. Remedies. City may bring legal action to compel performance of this Agreement
and recover the costs of completing the Work and/or repairs, if any, including City's administrative and
legal costs. Developer agrees that if legal action is brought by City under this section of the Agreement,
Developer shall pay all of the costs of suit; reasonable attorney fees, arbitration costs and such other costs
as may be determined by the court or arbitrator. No failure on the part of City to exercise any right or
remedy hereunder shall operate as a waiver of any other right or remedy that City may have hereunder.
Miscellaneous.
9.1 Com lia�nce witli Laws. Developer shall fully comply with all federal, state and
local laws, ordinances and regulations in the performance of this Agreement. Developer shall, at its own
cost and expense, obtain all necessary permits and licenses for the Work, give all necessary notices, pay
all fees and taxes required by law and make any and all deposits legally required by those public utilities
that will serve the development on the Cambria Hotel Property. Copies and/or proof of payment of said
permits, licenses, notices, fee and tax payments and deposits shall be furnished to the City Engineer upon
request.
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9.2. Notices. Formal written notices, demands, correspondence and communications
between the Parties shall be sufficiently given if: (a) personally delivered; or (b) dispatched by next day
delivery by a reputable carrier such as Federal Express to the offices of City and Developer indicated
below, provided that a receipt for delivery is provided; or (c) if dispatched by first class mail, postage
prepaid, to the offices of City and the Developer parties indicated below. Such written notices, demands,
correspondence and communications may be sent in the same manner to such persons and addresses as
either party may from time -to -time designate by next day delivery or by mail as provided in this section.
City: City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Manager
with a copy to: City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Attorney
Stadium RP:
Pacific Hospitality:
Notices delivered by deposit in the United States mail as provided above shall be deemed to have been
served two (2) business days after the date of deposit if addressed to an address within the State of
California, and three (3) business days if addressed to an address within the United States but outside the
State of California.
9.3 Ation1gy Hees. Should any legal action or arbitration be brought by any Party
because of breach of this Agreement or to enforce any provision of this Agreement, the prevailing Party
shall be entitled to all costs of suit; reasonable attorney fees, arbitration costs and such other costs as may
be determined by the court or arbitrator.
9.4. [entire Agreement. The terms and conditions of this Agreement constitute the
entire agreement between City and Developer with respect to the matters addressed in this Agreement.
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This Agreement may not be altered, amended or modified without the written consent of the Parties
hereto.
9.5. Runs with the Land, [recordation. This Agreement pertains to and shall run with
the Cambria Hotel Property. Upon execution, this Agreement shall be recorded in the Official Records of
Sonoma County.
9.6. Transfers, Assi ng merits. Developer may assign its obligations under this
Agreement to successor owner(s) of the Site with the prior written approval of the City. In connection
with any such assignment, Developer and its assignee shall execute and deliver to City a written
assignment and assumption agreement in a form acceptable to the City Attorney.
9.7. Time is of the Essence. Time is of the essence of this Agreement and of each and
every term and condition hereof.
9.8. 'Severability. If any provision of this Agreement is held, to any extent, invalid,
the remainder of this Agreement shall not be affected, except as necessarily required by the invalid
provision, and shall remain in full force and effect.
9.9. Waiver or Madilscation. Any waiver or modification of the provisions of
this Agreement must be in writing and signed by the authorized representative(s) of each Party.
9.10. Relationship of llte Parties. Neither Developer nor Developer's contractors,
subcontractors, agents, officers, or employees are agents, partners, joint venturers or employees of City
and the Developer's relationship to the City, if any, arising herefrom is strictly that of an independent
contractor. Developer's contractors and subcontractors are exclusively and solely under the control and
dominion of Developer. Further, there are no intended third party beneficiaries of any right or obligation
assumed by the Parties.
9.11. Binding Upon Heirs, Successors and Assigns. The terms, covenants and
conditions of this Agreement shall be binding upon all heirs, successors and assigns of the parties hereto;
provided, however, that this Agreement shall not be binding upon a purchaser or transferee of any portion
of the Property unless this Agreement has been assigned pursuant to Section 9.6, in which event this
Agreement shall remain binding upon Developer.
9.12. Governing, Law, Venue. This Agreement shall be construed and enforced in
accordance with the laws of the State of California, without reference to choice of law provisions. Any
legal actions under this Agreement shall be brought only in the Superior Court of the County of Sonoma,
State of California.
9.14. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original.
9.15. Interl2retation. This Agreement shall be construed according to its fair
meaning, and not strictly for or against any party. No presumptions or rules of interpretation
based upon the identity of the party preparing or drafting the Agreement, or any part thereof, shall
apply to the interpretation of this Agreement.
9.16. Headings. Section headings in this Agreement are for convenience only and are
not intended to be used in interpreting or construing the terms, covenants or conditions contained in this
Agreement.
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9.17. Autliority. Each Party executing this Agreement on behalf of a Party represents
and warrants that such person is duly and validly authorized to do so on behalf of the entity it purports to
bind and if such party is a partnership, corporation or trustee, that such partnership, corporation or trustee
has full right and authority to enter into this Agreement and perform all of its obligations hereunder.
10. Joint and Several Liability. Pacific Hospitality and Stadium RP shall be jointly and severally
liable for all obligations of Developer under this Agreement.
IN WITNESS WHEREOF, City, Stadium RP and Pacific Hospitality have executed this
Agreement as of the Effective Date.
"CITY"
Dated:
ATTEST:
Name:
City Clerk
APPROVED AS TO FORM:
Name:
City Attorney
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CITY OF ROHNERT PARK, a California
municipal corporation
LIN
Darrin Jenkins City Manager
Per Resolution No. 20 - adopted by the Rohnert Park
City Council at its meeting of _
"DEVELOPER"
Pacific Hospitality Sonoma, LLC
Dated:
By:
Name:
Title:
"DEVELOPER"
Stadium RP Development Partners, LLC
Dated:
Name:
Title:
15
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