2018/04/24 City Council Ordinance 922Exhibit M-1 to Third Amendment
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Rohnert Park
130 Avram Avenue
Rohnert Park, California 94928-2486
Attention: City Clerk
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(Space Above This Line for Recorder's Use Only)
Exempt from recording fee per Gov. Code § 27383.
IMPROVEMENT AGREEMENT
CITY OF ROHNERT PARK
SOMO FIELD SOCCER FIELD WORK
THIS IMPROVEMENT AGREEMENT (the “Agreement”) is made and entered into on
this day of , 2018 (the “Effective Date”) by and between SOMO
VILLAGE, LLC, a Delaware limited liability company, formerly known as SONOMA
MOUNTAIN VILLAGE, LLC (“Developer”), and the CITY OF ROHNERT PARK, a California
municipal corporation (“City”). Developer and City are sometimes referred to herein as a “Party”
and collectively as the “Parties.”
R E C I T A L S
A. City, Developer and KDRP LLC, previously entered into that certain
Development Agreement, dated as of September 14, 2010 and recorded on October 1, 2010 as
Instrument Number 2010084467 in the Official Records of Sonoma County, as amended by that
certain First Amendment to Development Agreement, recorded on June 28, 2012 as Instrument
Number 2012061268 in the Official Records of Sonoma County and by that Second Amendment
to Development Agreement recorded on December 11, 2012 as Instrument Number 2012126932,
in the Official Records of Sonoma County and subject to those certain letter agreements dated
June 6, 2016 and December 29, 2016 (collectively, the “Original Development Agreement”).
B. Developer and KDRP LLC owned the Property as tenants in common upon
entering the Development Agreement. On July 21, 2016, Developer acquired all of KDRP LLC’s
rights and assumed all its obligations under the Development Agreement. Developer was
formerly known as Sonoma Mountain Village, LLC and changed its name to SOMO Village,
LLC upon converting from a California limited liability company to a Delaware limited liability
company on December 30, 2016.
C. The Parties entered into that certain Partial Assignment and Assumption and
Guaranty of Development Agreement and Consent to Transfer of Real Property (the “Assignment
Agreement”), whereby, (1) Developer transferred a portion of the Property to SVC, while
retaining all obligations under the Development Agreement, except for those obligations
regarding improvements to existing structures on the transferred property; and (2) Developer
deposited the sum of $2.3 million with City to fund its soccer field obligations, with the use of
such deposit to be governed by that certain Escrow and Funding Agreement, entered into as April
24, 2017, by and between SOMO Village, LLC and City (the “Escrow Agreement”).
D. Section 4.11(B) of the Development Agreement, among other things, requires
that Developer complete construction of a soccer field and installation of equipment f or such
soccer field upon one of two pre-designated site locations owned by the Developer by December
31, 2016. The Parties have since entered into two letter agreements, the Assignment Agreement
and the Escrow Agreement, which provide for the following: (1) modification of Developer’s
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obligation to construct a soccer field on the Property to the construction of an all -weather soccer
field at Sunrise Park, which is already owned by the City; (2) two additional payments from
Developer to City in the amount of $250,000 each; and (3) a deposit of $2.3 million by Developer
with City to fund its obligations related to the soccer field.
E. On April 25, 2018, the City’s City Council adopted Ordinance No. ___________,
approving that certain Third Amendment to Development Agreement dated _________________,
2018 (the “Third Amendment”). The Original Development Agreement, as amended by the Third
Amendment, may be referred to as the “Development Agreement” in this Agreement.
F. The Third Amendment, among other things: (1) documents the Parties’
agreement to move the location of the Soccer Field to Sunrise Park; and (2) sets forth terms
regarding the time-frame, funding, and remedies for non-compliance regarding Developer’s
design and construction of the Soccer Field.
F. The Parties have also entered into an Amended and Restated Escrow Agreement
to conform the Escrow Agreement to the terms of the Development Agreement, including,
without limitation, to provide that: (1) the Construction Funds (as defined in the Escrow
Agreement) may be increased per the terms of the Development Agreement; and (2) the
Construction Funds may be used by City in the event of a breach under the Development
Agreement or this Improvement Agreement.
F. Pursuant to the terms of the Development Agreement, Developer has submitted
plans, specifications and drawings for the Soccer Field Work (as defined in the Development
Agreement) prepared by Verde Design, Inc. and dated _____________, 2018 (hereinafter
collectively referred to as the “Improvement Plans”), which Improvement Plans have been
approved by the City Engineer. The Soccer Field Work is referred to as the “Improvements” in
this Agreement.
G. City and Developer desire to provide for certain additional terms and conditions
relating to the construction and installation of the Soccer Field Work in accordance with the
Improvement Plans as set forth in this Agreement.
A G R E E M E N T
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. Purpose. The purpose of this Agreement is to guarantee completion of the
Improvements and ensure satisfactory performance by Developer of Developer's obligations to
satisfy the Conditions.
2. Property Subject to Agreement. The property which is the subject of this
Agreement is located in the City of Rohnert Park, Sonoma County, California, and is described as
Assessor’s Parcel No. , in the Sonoma County Records (the “Property”).
3. Duty to Install Improvements. Developer will 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 and to the satisfaction of the City
Engineer, in his/her reasonable discretion. Developer will also supply all labor and materials
therefor, all in strict accordance with the terms and conditions of this Agreement and the
Development Agreement. The construction, installation and completion of the Improvements and
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
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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. 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, if applicable, under this Agreement. City shall not be
responsible or liable for any damages or injury of any nature in any way related to or caused by
the Improvements or their condition prior to acceptance.
4. Completion Date. Developer will complete the Work by December 31, 2019. All
Work will be completed in a good and workmanlike manner in accordance with accepted desi gn
and construction practices.
5. Estimated Cost of Work. The estimated cost of the Work is [ESTIMATED
COST OF WORK TO BE INSERTED AFTER PLANS ARE COMPLETE AND
CONSTRUCTION CONTRACT IS EXECUTED]. 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.
6. 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.
7. Repairs. Developer agrees to repair or have repaired in a timely manner at its sole
cost and expense all public roads, streets, or other public or private property damaged as a result
of or incidental to the Work or in connection with the development of the Property or to pay to
the property owner of any damaged road, street or property the full cost of such repair. In
addition, Developer shall obtain the written acceptance of such repair or payment from any owner
whose private property was repaired by Developer or to whom Developer has paid the full cost of
such repair in accordance with this Section 7. 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 12.1.
8. 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 and may not be changed without the advance notification to and
satisfaction and concurrence of the City Engineer.
9. Examination of Work. All of the Work shall be performed to the satisfaction of
the City Engineer, in his/her reasonable discretion. The City and its authorized agents shall, at all
times during the performance of the Work, have free access to the Work and shall be allowed to
examine the Work and all materials used and to be used in the Work.
10. 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
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the City (the “City Costs”). City agrees not to double charge Developer (through the imposition
of both a processing fee and a consultant charge) for any individual monitoring, inspection,
testing or evaluation service. In addition, City agrees to limit its use of outside consultants to
those reasonably necessary or desirable, as determined by the City Manager or his designee in his
reasonable discretion, to accomplish the requisite inspection, administration and monitoring. The
estimated cost for the inspection, administration and testing services is ____________ Dollars
($_____________) (the “Estimated Cost”). City will bill Developer for inspection costs, as they
are incurred, under the terms of the City’s reimbursement agreement with Developer.
11. Completion of Work. After Developer (a) completes the Work in accordance
with the Improvement Plans and the terms and conditions of this Agreement, (b) repairs any road,
street, or private or public property damaged as a result of the Work or pays the full cost of such
repair to the owner whose property was damaged and (c) obtains the written acceptance of such
repair or payment from any owner whose private property was repaired by Developer or to whom
Developer paid the full cost of such repair, Developer will provide City with a written notice of
completion, together with copies of all written acceptances.
12. Final Acceptance.
12.1 Notice of Completion. Within three (3) business days of receipt of
Developer's written notification pursuant to Section 11 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 ten (10) business days will be deemed acceptance
of the Work under this Agreement.
12.2 Acceptance of Improvements. After sending Developer a written notice
of satisfactory completion or upon failing to respond within ten (10) business days
pursuant to Section 12.1, the City Engineer shall within three (3) business days
recommend approval of the Improvements to the City Manager. The City Manager shall
make the final determination as to approval, in his reasonable discretion and thereafter,
shall recommend formal acceptance to the City Council. Upon acceptance by the City
Council, 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.
13. [intentionally omitted]
14. [intentionally omitted]
15. Security. Developer has deposited the amount of $2.3 million dollars in cash with
City pursuant to the terms of the Amended and Restated Escrow Agreement as initial security for
the Work (the “Construction Funds”). Developer shall furnish and deliver to City, within the
times set forth below, the following additional security:
15.1 Additional Security. Within five (5) business days after the execution of
the Construction Contract (as defined in the Third Amendment), Developer shall furnish
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and deliver one of the following forms of additional security for the performance of the
Work, the selection of which form of security shall be in the sole discretion of Developer:
a) Additional Cash Deposit. Developer shall deposit the full amount of the
Shortfall (as defined in the Third Amendment) in cash with City pursuant
to the terms of the Amended and Restated Escrow Agreement. In the
event of a breach of this Agreement or the Development Agreement, City
may use such funds pursuant to the terms of the Amended and Restated
Escrow Agreement to complete the Work.
b) Letter of Credit. Developer shall obtain, in the amount of the Shortfall, a
Letter of Credit for the benefit of City in a form acceptable to the City
Attorney, in the City Attorney’s reasonable discretion. In the event of a
breach of this Agreement or the Development Agreement, City may use
draw on the Letter of Credit to complete the Work. The Letter of Credit
shall be released by the City effective upon the date of recordation of the
notice of acceptance of the improvements as described in Section 12.2
and Developer's delivery of the Warranty Bond described in Section 15.2
c) Performance Bond. Developer shall furnish and deliver a performance
surety bond issued by a surety company duly and regularly authorized to
do general surety business in the State of California, or such other surety
as may be acceptable to the City Attorney, in the amount of the
Construction Contract, which bond must be in a form acceptable to the
City Attorney, in the City Attorney’s reasonable discretion. The bond
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 12.2 and Developer's delivery of the Warranty
Bond described in Section 15.2.
15.2 Warranty Bond. Developer shall furnish and deliver a warranty bond
issued by a surety company duly and regularly authorized to do general surety business in
the State of California, or such other surety as may be acceptable to the City Attorney, in
the amount of [FIFTEEN PERCENT OF ESTIMATED COST PER CITY’S
MUNICIPAL CODE] upon acceptance of the Improvements and prior to release of the
Performance Bond. The bond 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.
16. [intentionally omitted].
17. No Waiver by City. Inspecting of the Work, or approval of any portion of the
Work prior to full performance of the Work, or a statement by an officer, agent or employee of
the City indicating the work complies with this Agreement, or acceptance of any portion of the
Work, 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. Notwithstanding the foregoing, if the
City, upon default by Developer, exercises its right to perform the Work pursuant to Section 28 of
this Agreement and exercises on the security provided by Developer pursuant to Section 15,
Developer will have no further obligations to complete the Work under this Agreement. The
following provisions of this Agreement will, however, remain in full force: Sections 21 and 22.
18. Warranty Period; Repair and Reconstruction. Without limiting the foregoing,
Developer expressly warrants and guarantees all work performed under this Agreement and all
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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 12. 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 Ci ty Engineer.
Should Developer fail to act promptly 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.
19. Erosion Control. Pursuant to Rohnert Park Municipal Code Chapter 15.52,
Developer shall be responsible for the control of erosion on the Property and shall prevent its
entry into the storm drainage system.
20. Developer Not Agent of City. 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.
21. 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 any Claim arises from the gross negligence or intentional acts or omissions by 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.
22. Insurance. Developer shall maintain Comprehensive 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 insureds as respects
liability arising out of activities performed by or on behalf of Developer.
The coverage shall contain no special limitations on the scope of
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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.
(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.
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.
23. 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.
24. Compliance with Laws. Developer shall fully comply with all federal, state and
local laws, ordinances and regulations in the performance of this Agreement. Developer shall, at
its own cost and expense, obtain all necessary permits and licenses for the Work, give all
necessary notices, pay all fees and taxes required by law and make any and all deposits legally
required by those public utilities that will serve the development on the Property. Copies and/or
proof of payment of said permits, licenses, notices, fee and tax payments and deposits shall be
furnished to the City Engineer upon request.
25. Encroachment Permits. Developer shall obtain, at its sole cost and expense, any
encroachment permits required by the City in order to perform the Work.
26. Payments. Developer agrees that it will pay, when due, all those furnishing labor
or materials in connection with the Work.
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27. Notice of Breach and Default. The occurrence of any of the following constitutes
a breach and default of this Agreement:
(1) Developer refuses or fails to complete the Work within the time set forth
herein or abandons the Work.
(2) Developer assigns the Agreement without the prior written consent of
City.
(3) Developer is adjudged bankrupt or makes a general assignment for the
benefit of creditors, or a receiver is appointed in the event of Developer's
insolvency.
(4) Developer or Developer's contractors, subcontractors, agents or
employees, fail to comply with any terms or conditions of this
Agreement, after City provides Developer written notice specifying such
breach and an opportunity to cure, which cure period shall not exceed
thirty (30) days.
(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.
(6) Developer is in breach of the Third Amendment or the Amended and
Restated Escrow Agreement, after City provides Developer written
notice specifying such breach and an opportunity to cure, which cure
period shall not exceed thirty (30) days.
The City may serve written notice of breach and default upon Developer and the financial
institution holding the bonds.
28. Breach of Agreement; Performance by City. If the City gives Developer notice,
under Section 27, of breach and default of this Agreement, the City may proceed to complete the
Work by contract or other method the City considers advisable, using the security set forth in
Section 15.1, as applicable, including without limitation, the Construction Funds. 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 bonds, if applicable, shall also be liable to City to pay the face amount of the bonds, as
specified under Section 15.
29. 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.
30. Final Drawings. Upon completion of the Work and prior to final acceptance,
Developer shall deliver to City a set of “as-built” drawings. These drawings shall be in a form
acceptable to the City Engineer, shall be certified as being “as-built” and shall reflect the Work as
actually constructed, with any and all changes incorporated therein. Said drawings shall be
signed and sealed as accurate by the engineer of record.
31. Attorney Fees. Should any legal action or arbitration be brought by either party
because of breach of this Agreement or to enforce any provision of this Agreement, the prevailing
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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.
32. Notices. Formal written notices, demands, correspondence and communications
between City and Developer shall be sufficiently given if: (a) personally delivered; or (b)
dispatched by next day delivery by a reputable carrier such as Federal Express to the offices of
City and Developer indicated below, provided that a receipt for delivery is provided; or (c) if
dispatched by first class mail, postage prepaid, to the offices of City and Developer indicated
below. Such written notices, demands, correspondence and communications may be sent in the
same manner to such persons and addresses as either party may from time -to-time designate by
next day delivery or by mail as provided in this section.
City: City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Manager
with a copy to: City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Attorney
Developer: SOMO Village, LLC
P.O. Box 7087
Cotati, CA 94931
Attn: Brad Baker
with a copy to: SOMO Village, LLC
1400 Valley House Road, Ste 110
Rohnert Park, CA 94928
Attn: General Counsel
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.
33. Transfers; Assignments. Developer may assign its obligations under this
Agreement to only 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.
34. 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 33, in which event this Agreement shall remain binding upon Developer.
35. 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.
36. Severability. If any provision of this Agreement is held, to any extent, invalid,
the remainder of this Agreement shall not be affected, except as necessarily required by the
invalid provision, and shall remain in full force and effect.
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37. Entire Agreement. The terms and conditions of this Agreement constitutes the
entire agreement between City and Developer with respect to the ma tters addressed in this
Agreement. This Agreement may not be altered, amended or modified without the written
consent of both parties hereto.
38. 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.
39. Authority. Each party executing this Agreement on behalf of a party represents
and warrants that such person is duly and validly authorized to do so on behalf of the entity it
purports to bind and if such party is a partnership, corporation or trustee, that such partnership,
corporation or trustee has full right and authority to enter into this Agreement and perform all of
its obligations hereunder.
40. Time is of the Essence. Time is of the essence of this Agreement and of each and
every term and condition hereof.
41. Runs with the Land; Recordation. This Agreement pertains to and shall run with
the Property. Upon execution, this Agreement shall be recorded in the Official Records of
Sonoma County.
Signatures on Next Page - Signatures Must be Notarized
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IN WITNESS WHEREOF, this Improvement Agreement has been entered into by and
between Developer and City as of the day and year first above written.
CITY:
City of Rohnert Park, a municipal corporation
By:
Darrin Jenkins, City Manager
Authorized by Ordinance _____
adopted by the Rohnert Park City
Council at their meeting of April 25,
2018
Approved as to Form:
By:
City Attorney
Attest:
By:
City Clerk
DEVELOPER:
SOMO Village, LLC, a Delaware limited liability
company
By:
Name: Bradley E. Baker
Title: Manager
[Signature Must be Notarized]
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ACKNOWLEDGMENTS
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA )
COUNTY OF )
On ____________ __, 20__ before me, , Notary Public, personally
appeared , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature: (seal)
******************************
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA )
COUNTY OF )
On ____________ __, 20__ before me, , Notary Public, personally
appeared , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature: (seal)
AFFIDAVIT OF POSTING
Pursuant to California Government Code§36933 and§40806
STATE OF CALIFORNIA )
) ss
County of Sonoma
I, JoAnne Buergler, City Clerk for the City of Rohnert Park, declare this is a true and correct
copy of Ordinance No. 922.
SUMMARY OF ORDINANCE NO. 922 OF THE CITY OF ROHNERT PARK, CALIFORNIA,AMENDING THE
DEVELOPMENT AGREEMENT BY AND AMONG THE CITY OF ROHNERT PARK AND SOMO VILLAGE LLC
AND SOMO VILLAGE COMMERCIAL LLC REGARDING THE SONOMA MOUNTAIN VILLAGE PLANNED
DEVELOPMENT AREA
was published on April 13, 2018 and April 27, 2018, as required by law, and posted in five
(5) public places in said City, to:
www.rpcity.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 April 11, 2018 and April 25, 2018.
i ned '''' J 0
Su cribed and swor 'to bef e m this)--1 day of .2u I �.
( f
Caitlin Saldanha, Deputy Clerk rk
p
L
CERTIFICATION OF PUBLICATION IN
"The Community VOICE"
(Published every Friday)
in the
SUPERIOR COURT
of the
STATE OF CALIFORNIA
In and For the County of Sonoma
COUNTY OF SONOMA
City of Rohnert Park
Summary of Ordinance No.922
STATE OF CALIFORNIA, The undersigned does hereby certify and declare: That at all times hereinafter sworn,deposes and says:
That at all times hereinafter mentioned she was a citizen of the United States,over the age of eighteen 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 newspaper of general
circulation,published in the City of Rohnert Park,in said County of Sonoma,State of California;that The Community VOICE is and
was at all times herein mentioned,a newspaper of general circulation as that term is defined by Section 6000 of the Government Code;
its status as such newspaper of general circulation having been established by Court Decree No.35815 of the Superior Court of the
State of California,in and for the County of Sonoma,Department No.1 thereof;and as provided by said Section 6000,is published for
the dissemination of local and telegraphic news and intelligence of a general character,having a bona fide subscription list of paying
subscribers,and is not devoted to the interest,or published for the entertainment or instruction of a particular class,profession,trade,
calling,race or denomination,or for the entertainment and instruction of such classes,professions,trades,callings,races or
denominations;that at all said times said newspaper has been established and published in the said City of Rohnert Park,in said County
and State at regular intervals for more than one year preceding the first publication of this notice herein mentioned;that said notice was
set in type not smaller than non-pareil and was preceded with words printed in black face type no smaller than non-pareil,describing
and expressing in general terms,the purport and character of the notice intended to be given;that the"City of Rohnert Park,Summary
of Ordinance No.922"of which the annexed is a printed copy,was published in said newspaper at least_1 consecutive time(s),
commencing on the 13 day of April,2018 and ending on the 13 day of April,2018.
I HEREBY CERTIFY AND DECLARE UNDER THE PENALTY OF perjury that the foregoing is true and correct.
EXECUTED this 13 day of April,2018'at Rohnert Park,California.
Signed
/ SUMMARY 0 •`=.'INANCE NO.972 OF THE CRY OF ROHNERT PARK,
CALIFORNIA,AMENDING THE DEVELOPMENT AGREEMENT BY AND
Claudia Smith Chief Clerk AMONG THE CITY OF ROHNERT PARK AND SOMO VILLAGE LLC AND
SOMO VILLAGE COMMERCIAL LLC REGARDING THE SONOMA MOUNTAIN 1111
VILLAGE PLANNED DEVELOPMENT AREA
Pursuant to Government Code Section 36933(c),the following constitutes
a summary of Ordinance No.922 introduced by the Rohnert Park City Council
on April 10,2018 and scheduled for consideration of adoption on April 24,
2018 at its meeting to be held in the City Council Chambers,130 Avram Av-
enue,Rohnert Park,California.
The purpose of Ordinance No.922 is to(1)acknowledge SOMO Village
LLC's compliance with its obligation to construct a portion of the SMART!
multi-use path;(2)document the City and SOMO Village LLC's agreement to
move the location of the a required all-weather soccer field;and(3)set forth 4111
terms regarding the time-frame,funding,and remedies for non-compliance
regarding SOMO Village LLC's design and construction of the all-weather soc-
cer field.All other terms and conditions of the Development Agreement remain
in full force and effect.
A certified copy of the full text of Ordinance is posted and available for re-
view in the City Clerk's Office at 130 Avram Avenue,Rohnert Park,California.
This ordinance shall be in full force and effective thirty(30)days after its adop-
tion,and shall be publish and posted as required by law.This ordinance was
introduced by the Council of the City of Rohnert Park on April 10,2018 and is
scheduled for consideration of adoption on April 24,2018.
Dated:April 11,2018 Caitlin Saldanha
Published:April 13,2018 Deputy City Clerk
The Community Voice
CERTIFICATION OF PUBLICATION IN
"The Community VOICE"
(Published every Friday)
in the
SUPERIOR COURT
of the
STATE OF CALIFORNIA
In and For the County of Sonoma
COUNTY OF SONOMA
City of Rohnert Park
Summary of Ordinance No.922
STATE OF CALIFORNIA, The undersigned does hereby certify and declare: That at all times hereinafter sworn,deposes and says:
That at all times hereinafter mentioned she was a citizen of the United States,over the age of eighteen 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 newspaper of general
circulation,published in the City of Rohnert Park,in said County of Sonoma,State of California;that The Community VOICE is and
was at all times herein mentioned,a newspaper of general circulation as that term is defined by Section 6000 of the Government Code;
its status as such newspaper of general circulation having been established by Court Decree No.35815 of the Superior Court of the
State of California,in and for the County of Sonoma,Department No. 1 thereof;and as provided by said Section 6000,is published for
the dissemination of local and telegraphic news and intelligence of a general character,having a bona fide subscription list of paying
subscribers,and is not devoted to the interest,or published for the entertainment or instruction of a particular class,profession,trade,
calling,race or denomination,or for the entertainment and instruction of such classes,professions,trades,callings,races or
denominations;that at all said times said newspaper has been established and published in the said City of Rohnert Park,in said County
and State at regular intervals for more than one year preceding the first publication of this notice herein mentioned;that said notice was
set in type not smaller than non-pareil and was preceded with words printed in black face type no smaller than non-pareil,describing
and expressing in general terms,the purport and character of the notice intended to be given;that the"City of Rohnert Park,Summary
of Ordinance No.922"of which the annexed is a printed copy,was published in said newspaper at least_1 consecutive time(s),
commencing on the 27 day of April,2018 and ending on the 27 day of April,2018.
I HEREBY CERTIFY AND DECLARE UNDER THE PENALTY OF perjury that the foregoing is true and correct.
EXECUTED this 27 day of April,2018 at Rohnert Park,California.
Signed
impo SUMMARY OF ORDINANCE NO. •F THE CITY OF ROHNERT PARK,
CALIFORNIA,AMENDING THE DEVELOPMENT AGREEMENT BY AND
AMONG THE CITY OF ROHNERT PARK AND SOMO VILLAGE LLC AND
Claudia Smith Chief Clerk SOMO VILLAGE COMMERCIAL LLC REGARDING
THE SONOMA MOUNTAIN VILLAGE PLANNED DEVELOPMENT AREA
Pursuant to Government Code Section 36933(c),the following constitutes
a summary of Ordinance No.922 introduced by the Rohnert Park City Council
on April 10,2018,and adopted on April 24,2018 at its meeting to be held in
the City Council Chambers,130 Avram Avenue,Rohnert Park,California.
The purpose of Ordinance No.922 is to(1)acknowledge SOMO Village
LLC's compliance with its obligation to construct a portion of the SMART
multi-use path;(2)document the City and SOMO Village LLC's agreement to
move the location of the a required all-weather soccer field;and(3)set forth
terms regarding the time-frame,funding,and remedies for non-compliance
regarding SOMO Village LLC's design and construction of the all-weather soc-
cer field.All other terms and conditions of the Development Agreement remain
in full force and effect.
A certified copy of the full text of Ordinance is posted and available for re-
view in the City Clerk's Office at 130 Avram Avenue,Rohnert Park,California.
This ordinance shall be in full force and effective thirty(30)days after its adop-
tion,and shall be publish and posted as required by law.This ordinance was
introduced by the Council of the City of Rohnert Park on April 10,2018 and
adopted on April 24,2018,by the following roll call vote:
AYES: Five (5) Councilmembers Ahanotu,Belforte,Mackenzie,
Callinan and Mayor Stafford
NOES: None (0)
ABSENT: None (0)
ABSTAIN: None (0)
Dated:April 25.2018 Caitlin Saldanha
Published:April 27,2018 Deputy City Clerk
The Community Voice