2018/10/25 Planning Commission Resolution (2)PLANNING COMMISSION RESOLUTION NO. 2OI8.4I
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF ROHNERT PARK, CALIFORNIA, RECOMMENDING TO THE CITY
COUNCIL ADOPTION OF AN ORDINANCE APPROVING DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF ROHNERT PARK AND LAULIMA
DEVELOPMENT, LLC, FOR DEVELOPMENT OF THE STATION AVENUE
PROJECT (ApN 143-040-124 AND ApN 143-051-089)
WHEREAS, Government Code $ 65864, et seq., authorizes the City of Rohnert Park to
enter into development agreements which will provide certainty, dehnition and commitment to
developers as well as to necessary public improvements required by development; and
WHEREAS, Laulima Development,LLC, filed Planning Application No. PROJ18-0001
proposing the Station Avenue Final Development Plan ("FDP"), Conditional Use Permit ("CUP"),
Tentative Map ("TM") and Development Agreement ("DA") for a proposed project on a32 acre
parcel ("Project") located at6400 State Farm Drive (APN 143-051-072 and 143-051-089), in
accordance with the City of Rohnert Park Municipal Code ("RPMC"); and
WHEREAS' in connection with the Project, Developer and City Staff have negotiated a
proposed development agreement ("Development Agreement") in accordance with the
requirements of Government Code $ 65864, et seq., and Chapter lT.2l, "Development Agreement
Procedure" of the RPMC for the Project. The Development Agreement negotiated by the
Developer and the City is attached to this Resolution as Exhibit 1; and
WHEREAS, the Development Agreement, among other things, sets forth the effective
date and term of the agreement, applicable fees, applicable rules, regulations and policies, required
park improvements, affordable housing obligations, requirements regarding a parking garuge and
City reimbursement and prevailing wage rules, provisions on amendments, annual review and
default, and other miscellaneous provisions; and
WHEREAS, in accordance with the California Environmental Quality Act (CEQA), an
Environmental Impact Report (EIR) was prepared for the Central Rohnert Park, Priority
Development Area (PDA). The Station Avenue Project is located within the PDA and an analysis
dated UNSERT] and incorporated herein by reference, was prepared to evaluate the consistency
of the Project with the PDA EIR (the "Consistency Analysis"). The analysis concludes that the
proposed Project is consistent with the PDA Plan analyzed in the PDA EIR and that no further
environmental review is required; and
WHEREAS, pursuant to California State Law and the RPMC, public hearing notices were
mailed to all property owners within an area exceeding a three hundred foot radius of the subject
property and a public hearing was published for a minimum of 10 days prior to the first public
hearing in the Community Voice; and
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WHEREAS, on October 25,2018, the Planning Commission held a public hearing, at
which time interested persons had an opportunity to testify either in support or opposition to the
proposal.
NOW' THEREFORE, BE IT RESOLVED that the Planning Commission of the City of
Rohnert Park makes the following findings, determinations and recommendations with respect to
the proposed Development Agreement:
Section 1. The above recitations are true and correct.
Section 2. Findings for CEOA. In accordance with the California Environmental
Quality Act (CEQA), an Environmental Impact Report (EIR) was prepared for the Central Rohnert
Park, Priority Development Area (PDA). The PDA EIR was previously certified by the City
Council. In accordance with the Consistency Analysis, the Planning Commission hereby finds
that the proposed project, including the Development Agreement, is consistent with the PDA plan
analyzed in the PDA EIR. Pursuant to Section 15162 of the CEQA Guidelines, no new
environmental effects could occur as a result of the project and no new mitigation measures would
be required. Therefore, no additional environmental review is required. The project will be
required to comply with the mitigation measures set forth in the Consistency Analysis.
Section 3. Findings for Adoption of Development Agreement. The Planning Commission
in recommending approval to the City Council of a Development Agreement as part of Planning
Application PROJ18-0001 for the Station Avenue Project hereby makes the following findings:
A. A duly noticed public hearing regarding the Development Agreement was held by the
Planning Commission on October 25,2018, in conformance with the notice provisions
of Government Code $$ 65090 and 65091 and the requirements of the RPMC.
B. The proposed Development Agreement is consistent with the General Plan and would
direct the Project's development in an orderly manner that benefits the City.
The Proiect is consistent with the Mixed Use general plan designation and the goals
and policies that call for the creation of an urban downtown environment adjacent to
the SMART platform. The requirements within the Development Agreementfor certain
use types and construction of urban open spqce amenities is consistent with the general
plan goals and policies. The agreement facilitates the construction of a parking
structure which is also supportive of an urban downtown environment, allows for the
construction of the hotel use and provides additional parkingfor the public.
C. Pursuant to RPMC Section 17.21.040, the Planning Commission has given
consideration to other pending applications and approved projects; the traffic, parking,
public service, visual, and other impacts of the proposed development project upon
abutting properties and the surrounding area; ability of the applicant to fulfill public
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facilities financing plan obligations; the relationship of the project to the city's growth
management program; the provisions included, if any, for reservation, dedication, or
improvement of land for public purposes or accessible to the public; the type and
magnitude of the project's economic effects to the city of Rohnert Park, and of its
contribution if any toward meeting the city's housing needs; and to any other
comparable, relevant factor.
The Station Avenue project has been analyzed and will provide trffic improvements
and parking improvements to serve the project and avoid any undue impacts on
adjacent properties. The project will construct all public facilities necessary including
parking structures and lots, roadways, bicycle lanes and sidewall* and infrastructure.
. The project proposes 460 new residential units which is permitted within the city's
growth management program. The new units will help satisfy a need for new rental
unit including l5 affordable units. The project will satisfy the City's park dedication
requirement with a combination of land, park improvements andfees. The project will
provide new revenue to the city in the form of property, sales and transit occupancy
taxes.
Section 4. Based on the hndings set forth in this Resolution and the evidence in the staff
report, the Planning Commission recommends that the City Council adopt an ordinance approving
the Development Agreement, substantially in the form set forth at Exhibit t hereto.
DULY AND REGULARLY ADOPTED on this 25th day of October,2018, by the City
of Rohnert Park Planning Commission by the following vote:
AYES: t)NOES: U ABSENT: U ABSTAIN: U
ADAMdd BLANaurAyf BoRBryt+( GruDrclh; I HAYDON!4h /Lr'
I
Attest:
Susan Adams, Chairperson, Rohnert Park Planning Commission
Recording SecretarySusan
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Exhibit 1
RECOMMENDED DEVELOPMENT AGREEMENT
Page 4 of 4
REcoRD WITHoUT FEE
PURSUANT To Govf,RNMENT CoDE g 6103
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
CITY OF'ROIINERT PARK
CITY CLERK'S OFFICE
130 AVRAM AVINUE
ROHNERT PARK, CALIFORNTA 94928
SPACE ABOI/E THIS LINE FOR RECORDER'S USE ONLY
DEVELOPMENT AGREEMENT
by and befween
THE CITY OF'ROIINERT PARK,
a California municipal corporation,
nnd
LAULIMA ROHNERT STATION, LLC,
a California limited liability compnny
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TABLE OF CONTENTS
DEFINITIONS
EFFECTIVE DATE AND TERM.
2.1 EffectiveDate.............
2.2 Term
2.3 Expiration........
2.4 Developer Representations and Warranties.....
DEVELOPMENT OF THE PROPERTY
3.1 VestedRights....,.........
3.2 ApplicableLaw...........
3.3 DevelopmentTiming..
3.4 Regulation by Other Public Agencies....
3.5 Life of Project Approvals...............
3.6 Developer's Right to Rebuild
3.7 State and Federal Law......
DEVELOPMENT STANDARDS
4.1 Compliance with State and Federal Law,..,.......
4.2 Prevailing Wage Requirements. ....,.........
4.3 Sales Tax Point of Sale Designation
FEES AND EXACTIONS,...
5.1 Development Fees, Taxes and Exactions ........"
5.2 ImpactFees...........
5.3 Processing Fees...........
5.4 faxesandAssessments.........
5.5 Consultant Fees...........
OBLTGATIONS OF THE PARTIES
6.1 Lot-Line Adjustment
6.2 Public Parking Spaces...,....
6.3 Commercial Core Requirements and Reshictions.
6.4 MasterMaintenanceAgreement...
6.5 ParkRequirements...
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TABLE OF CONTENTS
(continued)
6.6 Affordable Housing
7 COOPERATION AND IMPLEMENTATION
7 .1 Subsequent Project Approvals..
7.2 Processing Applications for Subsequent Project Approvals ...
7.3 Changes and Amendments to Project Approvals
7.4 Amendment of this Agreement........
7.5 MitigationMeasures
7.6 Cooperation in the Event of Legal Challenge..
7.7 Indemnity and Hold Harmless...
8.DEFAULT AND REMEDIES.
8.1
Page
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..,....".,.12
ll
12
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l3
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8.2 Default
........... I 5
........... I 5
8.3 Withholding of Permits
8.4 Remedies...
8.5 Periodic Review.
8.6 Enforced Delay; Ilxtension of Time of Performance
8.7 Resolution of Disputes
8,8 Termination
...................... I 6
.,............". I 8
9
10
MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE.................... r 8
9.1 MortgageeProtection........ I I
9.2 MortgageeObligations 18
t89.3 Notice of Default to Mortgagee
ASSIGNABILITY.
l0.l Assignment by Developer................
14.2 Covenants Run With The Land
10.3 Pre-ApprovedTransfers
10.4 Non'Assuming Transferees .........
10,5 Foreclosure
.19
.20
.20
....20
I1. GENERAL
.......24
..,.,..24
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TABLE OF CONTENTS
(continued)
Page
11.2
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lt.4
1l.5
I1.6
tt.7
11.8
1 1.9
1 1.10
11.11
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Construction of Agreement
No Waiver.
...20
.,..",.....,.........21
Agreement is Entire Agreement ....,.,...'.....',...,..21
Estoppel Certificate ..21
Construction n.l
Notices
Developer is an Independent Contractor......
No Joint Venture..... .,.................22
Nondiscrimination .....................23
No Third Party Beneficiary .......23
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DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT ("Agreement") is entered into as of the Effective
Date by and between CITY OF ROHNERT PARK (*Cify"), a California municipal corporation,
and LAULIMA ROFINIIRT STATION, LLC, a California limited liability company (the
"Developer"). City and Developer may each be referred to as a'oParty," and collectively the
"Parties".
B U.Q lT4 L_ S
Developer and City enter into this Agreement on the basis of the following facts,
understandings and intentions, and the following recitals are a substantive part of this
Agreement:
A. Sections 65864 through 65869.5 of the California Government Code
("Development Agreement Statute") authorize the City to establish procedures to enter into
binding development agreements with persons having legal or equitable interests in real property
located within the City for the development of propcrty.
B. Developer is the owner of that certain real property within the Central Rohnert
Park Priority District at 6400 State Farm Drive, of approximately 30 acres in size, identified as
Assessor's Parcel Number 143-051-072, as further described in Exhibit A, attached hereto and
incorporated by this reference (the "Developer Property"). The City is the owner of that
adjacent real property located at 600 Enterprise Drive, Assessor's Parcel Number 143-051-089,
the site of the City's current Corporation Yard ("Overalt City Property"). The City intends to
transfer that portion of the Overall City Property depicted on Exhibit B, attached hereto and
incorporated herein by this reference (the "Transfer City Property") to the Developer via a Lot
Line Adjustment after approval of this Agreement. The City and Developer intend to negotiate
the transfer of the remainder of the Overall City Property (the "Remaining City Property")
after approval of this Agreement. The Developer Property and the Transfer City Property may
collectively be refened to as the "Propert5r."
C. Developer has submitted applications to the City for a Rezone, a Final
Development Plan, and a Development Agreement to develop and construct a mixed-use
development known as Station Avenue in the City's Downtown, consisting of 140,000 square
feet of retail, 130,000 square feet of office, and approximately 460 multi-family residential
dwelling units; a 156-room.upscale hotel (the "Hotel"); a parking garage of approximately 420
parking spaces ("Parking Garage"); andplazas and parks (collectively, the "Overall Project").
The Overall Project includes the Property as well as the Remaining City Property, However, the
Remaining City Property is not subject to this Development Agreement. Therefore, the terms
and conditions of this Agreement only include that portion of the Overall Project located on the
Property, which is referred to herein as the "Project."
D. Through this Agreement, the Parties intend to preserve the permitted uses, size,
and density of development as set forth in the Project Approvals, as defined below. City and
Developer each acknowledge that development and construction of the Project is a large-scale
undertaking involving major investments by Developer and City, and assurances that the Project
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can be developed and used in accordancc with the terms and conditions set forth herein and the
existing rules goveming development of the Property will benefit both Developer and City.
E. This Agreement will eliminate uncertainty in the comprehensive development
planning of the Project and provide that the Property may be developed, constructed, completed
and used pursuant to this Agreement, and in accordance with existing policies, rules and
regulations of the City, subject to the exceptions and limitations expressed herein. Further, this
Agreement will (i) secure orderly development of the City's Downtown, including the
development of a commercial core, offrce and residential; (ii) meet the goals of the General Plan;
(iii) set forth certain use requirements for the City's Downtown; and (iv) plan for and concentrate
public and private resources for the mutual benefit of both Developer and City.
F. City has conducted an environmental consistency analysis in accordance with the
California Hnvironmental Quality Act ("CEQA") confirming that all impacts related to the
Project were analyzed and mitigated in the Central Rohnert Park Final Environmental Impact
Report and Mitigation Monitoring and Reporting Plan ("MMRP") and that there are no
additional or new significant impacts that warrant further environmental analysis.
G. Prior to and concurrently with approval of this Agreement, City is taking actions
in connection with the development of the Project on the Property, The approvals and
development actions described in this Recital G are collectively referred to herein as the
"Existing Project Approvals." These include:
l. Zoning Amendment. On _,2018, in accordance with the
recommendation of the Planning Commission, the City Council adopted Ordinance
No._, approving an overlay form-based zoning code, which covers the entirety of
the Property as well as certain additional adjacent property.
2. Final Development Plan. On _,2018, in accordancc with the
recornmendation of the Planning Commission, the City Council adopted Resolution No.
approving the Final Development Plan for the Property,
3. I'enlative Subdivision Map. On 2018, in accordance with
the recommendation of the Planning Commission, the City Council adopted Resolution
No.approving the Tentative Subdivision Map for the Property
H. Subsequent to approval of this Agreement, the City and Developer anticipate that
applications for additional approvals, entitlements, and permits related to the development and
operation of the Project will be submitted to implement the Project, including parcel maps and/or
tentative subdivision maps and final maps (the "subsequent Project Approvals").
AGREE..MENT
NOW, THEREFORE, pursuant to the authority contained in the Development Agreement
Statute, and in consideration of the mutual representations, covenants and promises of the
Parties, the Parties hereto agree as follows:
2OAK #48124530-3661 v3
1. DEFINITIONS.
"Administrative Agreement Amendment" shall have the meaning set forth in
Section 7.4(a).
"Administrative Project Amendmenr " shall have the meaning set forth in Section
7.3(aXi).
"Affirdable Units" shall have the meaning set forth in Section 6.6.
"Agreemenr" shall have the meaning set forth in the introductory paragraph preceding
the Recitals.
"Applicable Law" shall have the meaning set forth in Section 3.2.
" Building Permit" means a pennit issued by the City for the renovation or construction
of a building or structure, as required by the Califomia Building, Residential, Mechanical,
Electrical, Plumbing, Green Building, Fire or Energy Standard Codes, as adopted by the City and
incorporated in the Rohnert Park Municipal Code by reference, excluding a permit to commence
grading issued under Chapter 15.50 of thc Rohnert Park Municipal Code.
"CEQA " shall have the meaning set forth in Recital F.
"Changes in the Law" shall have the meaning set forth in Section 3.7.
"Cure Period" shall have the meaning set forth in Section 8.1.
"CiU" shall have the meaning set forth in the introductory paragraph preceding the
Recitals
"City Manager" means the City Manager of the City or hisiher designee.
"City Payment" shall have the meaning set forth in Section 6.2.
"Commence Construction " shall be deemed to have occurred when the Developer has
begun vertical construction as evidenced by an approved foundation inspection by the City and
such date shall be memorialized in writing by the Parties.
"Consultant Fees" shall have the meaning set forth in Section 5.5.
"Default" shall have the meaning set forth in Section 8.2.
"Developer " means Laulima Rohnert Station, LLC, a California limited liability
company, and its permitted successors and assigns.
"D.eveloper Properft" shall have the meaning set forth in Recital B.
"Development Agreement Statute " shall have the meaning set forth in Recital A.
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"Director" means the Development Services Director of the City.
" Drive-Through Business " means an establishment that sells products or provides
services to occupants in vehicles, including drive-in or drive-up windows and drive-through
services whether with an attcndant or employee or by automation. This includes non-restaurant
drive-through uses, as well as restaurant drive-through uses. A drive-through business that serves
a use not related to a restaurant, fast-food restaurant or formula fast-food restaurant includes the
operation ofa drive-through service at a bank or hnancial institution, food sales, personal
services, and retail sales (e.g., department store, pharmacy). Drivethrough businesses includc
drive-through rcstaurants that operate in conjunction with a restaurant, fast-food restaurant or
formula fast-food restaurant.
"Effective Dste" shall have the meaning set forth in Section 2.1
"Existing Project Approvals" shall have the meaning set forth in Rccital G
" Extended Cure Period" shall have the meaning set forth in Section 8.1.
"Extended Term" shall have thc meaning set forth in Section 2.2(b).
" Formula Restaurunt" means an eating establishment that is required by contractual or
other arrangement to offer standardized ("formula") menus, ingredients, food preparation,
employee uniforms, interior decor, signagc, cxterior design or other characteristics or adopts a
name, appearance or food presentation format with ten or more other establishments across the
United States regardless of ownership.
"Grading Permit" means a permit to commcnce grading issued by the City under
Chapter 15.50 of the Rohnert Park Municipal Code.
"Hotel" shall have the meaning set forth in Recital C.
" Impact Fees" shall have the meaning set forth in Section 5.2.
"Initial Term" shall have the meaning set forth in Section 2.2(a).
"Major Agreement Amendment" shall have the mcaning set forth in Section 7.4(b).
"MMRP" shallhave the meaning set forth in Recital F.
"Mortgage" shall have the meaning set forth in Section 9.1.
"Mor(gugee" shall have the meaning set forth in Section 9.1.
"New City Laws" shall mean City's laws, rules, regulations, official policies, standards
and specifications, including those enacted or imposed by a citizen-sponsored initiative or
referendum or by the City Council directly or indirectly in connection with any proposed
initiative or referendum, in each case to the extent amended or otherwise imposed following the
Effective Date.
4OAK #48124530-3661 v3
"Non-administrative Project Amendment " shall have the meaning set forth in
Section 7-3(a)(ii).
"Overall City Property" shall have the meaning set forth in Recital B.
"Parking Garage " shall have the meaning set forth in Recital C.
"Partial Assignment " shall have the meaning set forth in Section 10.l.
"Partial Transferee " shall have the meaning set forth in Section 10.1.
"Party/Parties " shall have the meaning set forth in the introductory paragraph preceding
the Recitals of this Agreement.
"Prevailing l4/age Laws " shall have the meaning set forth in Section a.2@).
" Processing Fees " shall have the meaning set forth in Section 5.3.
"Project" shall have the meaning set forth in Recital C.
"Overall Project" shall have the meaning set forth in Recital C.
. "Project Approvals" means the Existing Project Approvals and. any approved Subsequent
Project Approvals.
" Property" shall have the meaning set forth in Recital B.
"Public Spaces " shall have the meaning sct forth in Section 6.2.
"Quick Service Restaurant" (a.k.a. Fast Food) means an eating establishment that
specializes in short order or quick service; serves food or beverage products primarily in paper,
plastic or other disposable containers; and delivers food or beverage products in such a manner
that customers may remove such products from the restaurant for consumption.
"Remaining City Property" shall have the meaning set forth in Recital B.
"Subsequent Prrlect Approvals" shall have the meaning set forth in Recital H.
"Subsequent Discretionary Approvals " means all other Subsequent Project Approvals
other than Subsequent Ministerial Approvals, including amendments of the Project Approvals,
improvement agreements, architectural review permits, use permits, lot line adjustments,
subdivision maps, rezonings, development agreements, permits that are not Subsequent
Ministerial Approvals, resubdivisions, and any amendments to, or repealing of, any of the
foregoing, are Subsequent Discretionary Approvals.
"Subsequenl Ministerial Approvals " means permits or approvals that are required by
Applicable Law and that are to be issued upon compliance with uniform, objective standards and
regulations. They include applications for road construction permits or authorizations; grading
and excavation permits; building permits, including electrical, plumbing, mechanical,Title24
5OAK #48124530-3651 v3
Electrical, and Title 24 Handicap permits or approvals; certificates of occupancy; encroachment
permits; water connection permits; and any other similar permits required for the development
and operation ofthe Project.
"Taxes and Assessments" shall have the meaning set forth in Section 5.4
"Term" shall have the meaning set forth in Section 2.2.
"Transfer " shall have the meaning set forth in Section 10,I .
"Transfer City Parcel " shall have the meaning set forth in Recital B.
"(Jpscale Hotel" shall have the meaning set forth in Section 6.7.
"Vertical Mixed-Use Building" means a building with one or more floors of office uses
located above ground floor retail uses (i.e. retail shops, personal services and restaurants).
2. EFFECTIVE DATE AND TERM.
2.1 Effective Date. This Agreement shall become effective upon the date that the
ordinance approving this Agreemcnt becomes effective (the "Effective Date").
2.2 Term. The term ("Term") of this Agreement shall be the Initial Term together
with any Extended Term.
(a) lnitial Term. '['he Term of this Agreement shall commence upon the
Effective Date and shall cxtcnd for a period of five (5) years thereafter ("Initial Term"). The
Initial Term has been established by the City and Developer as a reasonable estimate of the
time required to develop the Project, including all on- and off-sitc public improvements, and
obtain the public benefits of the Project.
(b) Extended I'erm. Provided neither City nor Developer have terminated
this Agreement and Developer has fully complied with all tcrms of this Agreement, Developer
may request in writing that City extend the Initial Term of this Agreement for an additional
two-year period ('oExtended Term"). Such written request may be delivered to City not
carlier than two hundred seventy (270) days nor later than one hundred twenty (120) days prior
to the termination date of the Initial Term.
(c) City Review of Request for Extended Term. Upon receipt of such
request, City shall consider the request and may approve or deny the requested extension in its
sole and absolute discretion. If City approves the extension, the Initial Term of this Agreement
is extended in accordance with the provisions of this Section, City shall record an instrument
giving notice of the Extended Term and the termination date thereof.
2.3 Expiration. Following the expiration of the Term, or the earlier completion of
development of the Project and all of Developer's obligations in connection therewith, this
Agreement shall be deemed terminated and of no further force and effect, subject, however, to
the provisions of Section 8.8 below.
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2.4 Develoner Representations and Warranties. Developer represents and warrants to
City that, as of the Effective Date:
(a) Developer is the owner of the Developer Property and has an equitable
interest in the Transfer City Property, as provided herein;
(b) Developer: (i) is organized and validly existing under the laws of the
State of Califomia; (ii) to the extent required, has qualified and been authorized to do business
in the State of California and has complied with all requirements pertaining thereto; and (iii) to
the extent required, is in good standing and has all necessary powers under the laws of the
State of California to own propcrty;
(c) No approvals or consents of any persons are necessary for the execution,
delivery or performance of this A.greement by Developer, except as have been obtained;
(d) The execution and delivery of this Agreement have been duly authorized
by all necessary corporatc action; and
(e) This Agreement is a valid obligation of Developer and is enforceable in
accordance with its terms.
3. DEVELOPMENT OF THE PROPERTY.
3.1 Vested Rights. The Property is hereby made subject to the provisions of this
Agreement. Developer shall have the vested right to develop the Property and the Project in
accordance with and subject to the Existing Project Approvals, the Subsequent Project
Approvals, Applicable Law and this Agreement, which shall control the permitted uses, building
locations, timing and manner of construction, density and intensity of use, heights and sizes, and
requirements for on- and off-site infrastructure and public improvemcnts on thc Property.
3.2 Applicable Law. City and Developer acknowledge and agree that City is restricted
in its authority to limit its police power by contract and that the provisions herein are intended to
reserve to City all of its police power that cannot be so limitcd, whilc providing Developer with
rights afforded by law, including but not limited to, the Development Agreement Statute.
Therefore, the laws, rules, regulations, official policies, standards and specifications of City
applicable to the development of the Property and/or the Project are as follows (collectively,
"Applicable Law"):
(a) Those rules, regulations, official policies, standards and specifications of
the City set forth in the Project Approvals and this Agreement;
(b) With respect to matters not addressed by and not otherwise inconsistent
with the Project Approvals and this Agreement, those laws, rules, regulations, offrcial policies,
standards and specifications (including City ordinances and resolutions) governing permitted
uses, building locations, timing and manner of construction, densities, intensities of uses,
heights and sizes, and requirements for on- and off-site infrastructure and public
improvements, in each case only to the extent in full force and effect on the Effective Date;
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(c) New City Laws that relate to hearing bodies, petitions, applications,
notices, findings, records, hearings, reports, recommendations, appeals and any other matter of
procedure imposed at any time, provided such New City Laws are uniformly applied on a City-
wide basis to all substantially similar types of development pr<ljects and properties;
(d) New City Laws that revise City's uniform construction codes, including
City's building code, plumbing code, mechanical code, electrical code, fire code, grading code
and other uniform construction codes, as of the date of permit issuance, provided, that such
New City Laws are unifbrmly applied on a City-wide basis to all substantially similar types of
development projects and properties;
(e) New City Laws that are enacted to protect physical health and safety of
the public, provided, that such New City Laws are uniformly applied on a City-wide basis to
all substantially similar types of development projects and properties; and
(f) New City Laws that do not apply to the Property andlor the Project due
to the limitations set forth above, but only to the extent that such New City Laws are accepted
in writing by Developer in its sole discretion.
3.3 Development T'imine. Developer shall phase and construct the Project within the
time-frames set forth below.
(a) Developer shall obtain a Building Permit to construct any other portion
of the Ptoject prior to, or concunently with, issuance of a Building Permit for any residential
portion of the Project. In no event shall City issue a Building Permit for any residential portion
of the Projcct prior to the issuance of a Building Permit of any other portion of the Project.
(b) Developer shall Commence Construction of one of the five Vertical
Mixed-Use Buildings prior to, or concurently with, Commencement of Construction of any
other portion of thc Project, but no later than one year from the Effective Date.
(c) It is the Parties' specific intent that this Agreement shall prevail over any
later-adopted initiative or moratorium that might otherwise have the efTect of restricting or
limiting thc timing of development of the Project and that Developer shall have the right to
develop the Project at such time as Developer deems appropriate within the exercise of its
subjective business judgment and no annual (or other) limit, moratoria, or other limitation upon
the number of, or phasing or pacing of, buildings which may be constructed, or Building
Permits which may be obtained, or the like shall apply to the Project. Notwithstanding the
foregoing, the Parties acknowledge that City's approval of this Agreement is a legislative
action subject to referendum.
3.4 Resulation by Other Public Agencies. City and Developer acknowledge and agrce
that other governmental or quasi-govefirmental entities not within the control of City possess
authority to regulate aspects of the development of the Property and the Project and that this
Agrcemcnt does not limit the authority of such other public agencies. City shall cooperate with
Developer in Developer's effort to obtain such permits and approvals as may be required by
other governmental or quasi-govemmental entities in connection with the development of or the
provision of services to, the Property and/or the Project; provided, however, City shall have no
8OAK #4812-4s30-3661 v3
obligation to incur any costs, without compensation or reimbursement, or to amend any City
policy, regulation or ordinance in connection therewith,
3.5 I-ife of Project Anprovals. The term of any and all Project Approvals shall
automatically be extended for the longer of the Term or the term otherwise applicable to such
Project Approvals. Without limiting the generality of the foregoing, pursuant to the Subdivision
Map Act, any vesting or tentative maps heretofore or hereafter approved in connection with
development of the Project or the Property, shall be extended for the Term (and may be subject
to other extcnsions provided under the Subdivision Map Act).
3.6 Developer's Right to Rebuild. City agrees that Developer may renovate or rebuild
portions of the Project at any time within the Term should it become necessary due to any
casualty, including natural disastcr or changes in seismic requirements. Such renovations or
reconstruction shall be processed as a Subsequent Project Approval consistent with all prior
Project Approvals and Applicable City Law. Any such renovation or rebuilding shall be subject
to all design, density and other limitations and requirements imposed by this Agreement, and
shall comply with the Project Approvals, Applicable City Law, and the requirements of CEQA.
3,7 St{te and Fedegl lraw. As provided in Section 65869.5 of the Development
Agreement Statute, this Agreement shall not preclude the applicability to the Project of changes
in laws, regulations, plans or policies, to the extent that such changes are specifically mandated
and required by changcs in State or Federal laws or by changes in laws, regulations, plans or
policies of special districts or other govemmental entities, other than City, created or operating
pursuant to the laws of the State of California ("Changes in the Law"). In the event Changes in
the Law prevent or preclude, or render substantially more expensive or time consuming,
compliance with one (1) or more provisions of this Agreement, the City and Developer shall
meet and confer in good faith in order to determine whether such provisions of this Agreement
shall be modihed or suspended, or performance thereof delayed, as may be necessary to comply
with Changes in the Law. Nothing in this Agreement shall preclude City or Developer from
contesting by any available means (including administrative or judicial proceedings) the
applicability to the Project any such Changes in the Law.
4. DEVELOPMENT STANDARDS.
4.1 Compliance with State and Federal Law. Developer, at its sole cost and expense,
shall comply with requirements of, and obtain all permits and approvals required by, regional,
State and Feder.al agencies having jurisdiction over the Project.
4.2 Prevailing Wage Requirements,
(a) Developer acknowledges and agrees that all improvements paid for
directly or indirectly with public funds will constitute construction, alteration, demolition,
installation, or repair work done under contract and paid for in whole or in part out of public
funds as provided under California Labor Code Section7720. Accordingly, Developer shall
comply with, and cause its contractors and subcontractors to comply with, all State Labor Code
requirements and implementing regulations of the Department of Industrial Relations
pertaining to "public works" (collectively, "Prevailing Wage Laws").
9OAK 1148124530-3661 v3
(b) The Parties agree that construction of the Parking Garage is subject to
reimbursement of public funds, as provided herein, and thus is subject to Prevailing Wage
Laws. Developer shall require the contractor for the Parking Garage to submit upon request by
City certified copies of payroll records to City, and to maintain and make records available to
City and its designees for inspection and copying to ensure compliance with Prevailing Wage
Laws. Developer shall also include in each of its contractor agreements with respect to the
Parking Garage, a provision in form acceptable to City, obligating the contractor to require its
contractors and/or subcontractors to comply with Prevailing Wage Laws and to submit, upon
request by City, certified copies of payroll records to City and to maintain and make such
payroll records available to City and its designees for inspection and copying during regular
business hours at the Property or at another location within City.
(c) Developer shall defend (with counsel chosen by the City), indemnity,
assume all responsibility for, and hold harmless City and its officers, officials, employees,
volunteers, agents and representatives from and against any and all present and future
liabilities, obligations, orders, claims, damages, fines, penalties and expenses (including
attorneys' fees and costs) arising out of or in any way connected with Developer's or its
contractors' obligations to comply with all Prevailing Wage Laws, including all claims that
may be made by contractors, subcontractors or other third party claimants pursuant to Labor
Code sections 1726 and 1781 and any claims arising from construction of the Parking Garage.
4.3 Sales Tax Point of Sale Designation. Developer shall require all persons and
entities providing bulk lumber, concrete, structural steel and pre-fabricated building components,
such as roof trusses, to be used in connection with the construction and development of, or
incorporated into, the Project, to designate City as the sole point-of-sale for purposes of
computing sales taxes due under the Bradley-Burns Uniform Local Sales and Use Tax Law
(Calitornia Revenue and Taxation Code sections 72A0 d seq. and implementing regulations) on
the sale of such bulk construction and building materials and components.
5. F'EES AND EXACTIONS.
5.1 Development Fees. Taxes and Exactions. Developer shall pay all fees, special
assessments, special taxes, and exactions payable due to the development, build out, occupancy
and use of the Property pursuant to this Agreement including Impact Fees, Processing Fees,
Taxes and Assessments, and Consultant Fees as set forth in Sections 5.2 through 5.5 below.
5.2 Impact Fees. Developer shall pay all development impact fees imposed on thc
Project pursuant to the Mitigation Fee Act, California Government Code section 66000 et seq., in
effect as of the Effective Date ("Impact Fees"). Impact Fees shall be paid at the rate in effect as
of the issuance of the first building permit for the Project, with annual increases thereafter on
July I based on the Construction Cost Index from the Engineering News Record.
5.3 Processing Fees. City may charge and Developer agrees to pay all processing fees,
application, inspection and monitoring fees, and staffand legal fees ("Processing Fees"), for
land use approvals, grading and building permits, general plan maintenance fees, and other
permits and entitlements, which are in force and effect on a City-wide basis at the time those
OAK#48124530-3661 v3 l0
households with an annual income which does not exceed one hundred lwenty percent (120%) of
the area median income, adjusted for household size (the "Affordable Units"). Prior to the
issuance of the first building permit for a multi-family residential unit in the Project, Developer
shall enter into an Affordable Housing Agreement with the City, in a form approved by City, to
be recorded against the property on which the Affordable Units are developed. The Affordable
Housing Agreement shall include the following terms: (a) the Affordable tinits shall be rent-
restricted to moderate-income households for the life of the Projcct; (b) thc rent of the
Affordable Units shall not exceed an affordable rent as provided in State law; (c) annual
certificates of continuing program compliance must be submitted to the City; (d) requirements
regarding assignment and transfer; (e) requirements for ongoing maintenance and management;
(0 the requirement for Developer or its successor to submit a marketing plan for the Affordable
Units; and (g) Developer to comply with City's Inclusionary Housing polices and regulations.
The Affordable Units shall be comparable in number of bedrooms, exterior'appearance, and
overall quality of construction to the market-rate units in the same project.
6.7 Hotel Development. Developer shall develop thc Hotel as an Upscale, as defined
by the STR Hotel Chain Scale ("Upscale") or higher hotel, and shall provide City with a copy of
the Hotel Franchise Agreement prior to issuance of a Building Permit for the Hotel demonstrating
compliance with this Section 6.7.
7. COOPERATIONANDIMPLEMENTATION.
7.l Subsequent Project Approvals. Developer and City acknowledge and agree that
Developer intends to submit applications for Subsequent Project Approvals. In connection with
any Subsequent Project Approval, the City shall exercise its discretion in accordance with
Applicable Law and the Project Approvals and, as provided by this Agreement.
7.2 Ilrocessing Aoplications for Subsequent Project Anplovals.
(a) Devclopu acknowledges that City cannot begin processing applications
for Subsequent Project Approvals until Developer submits complete applications on a timely
basis. Developer shall use its best etforts to (i) provide to City in a timely manner any and all
documents, applications, plans, and other information necessary for City to carry out its
obligations hereunder; and (ii) cause Developer's planners, engineers, and all other consultants
to provide to City in a timely manner all such documents, applications, plans and other
materials required under Applicable Law. It is the express intent of Developer and Cily to
cooperate and diligently work to obtain any and all Subsequent Project Approvals.
(b) Upon submission by Developer of all appropriate applications and
processing fees for any pending Subsequent Project Approval, City shall, as allowed by law,
reasonably and diligently, subject to City ordinances, policies and procedures regarding hiring
and contracting, commence and complete all steps necessary to act on Developer's currently
pending Subsequent Project Approval applications.
(c) With the Existing Project Approvals, City has made a final policy
decision that the Project is in the best interests of the public health, safety and general welfare,
Applications for Subsequent Ministerial Approvals that are consistent with this Agreement and
OAK#4812-4530-3661 v3 t3
permits, approvals or entitlements are applied for on any or all portions of the Project, and which
are intended to cover the actual costs ofprocessing the foregoing.
5.4 Taxes and Assessments. City may charge and Developer agrees to pay any new,
increased or modified taxes, or assessments imposed as a condition of or in connection with the
Project Approvals or otherwise, provided such taxes and assessments are equally applied on a
City-wide basis and have a uniform effect on a broadly-based class of land, projects, or taxpayers,
as applicable, within the City ("Taxes and Assessmcnts").
5.5 Cofrsultant Fees. In addition to charging the foregoing Processing Fees, City may,
in its sole discretion, contract with one or more outside inspectors, engineers, attorneys or
consultants to perform all or any portion of the monitoring, inspection, testing, application
processing and evaluation services to be performed in connection with construction and
development of the Project or in connection with the periodic review of the Agreement
("Consultant Fees"). Developcr shall pay to City, within 30 days following City's written
demand therefore, the full amount of all Consultant Fees, plus a 10 percent City administration
charge. City shall provide copies of consultant bills that City asks Developer to pay pursuant to
this paragraph at the same time that the City submits an invoice seeking payment to Developer.
In the event of a disagreement between the Parties regarding the nature or amount of the
Consultant Fccs, Developer may request that the Parties meet and confer per Section 8,7 of the
Agreement prior to the payment deadline. In the event that a consultant bill contains attomey-
client privileged communications, City may redact those portions of thc consultant bill that are
privileged. The Consultant Fees, together with the associated administrative charge, shall be in
addition to, and not in lieu of, the Processing Fees. Notwithstanding the foregoing, in the event
that an outside consultant is necessary to process the Project's development applications, any
such consultant must be approved by Developer prior to the City's offer to contract with that
consultant.
6. OBLIGATIONS OF'THE PARTIES.
6.1 Lot-Line Adustment. Within 90 days of the Effective Date and upon the payment
by Developer to City of an amount equal to $300,000.00 in immediately available funds, which
reflects the fair market value of the Transfer City Property, City shall have recorded a Lot Line
Adjustment adjusting the parcel boundaries of the Developer Property and the Transfer City
Property, as depicted on S,xhibit B. Developcr shall be responsible for any and all costs
associated with the Lot Line Adjustment, including without limitation the costs of all legal
descriptions, any title or insurance costs requested by Developer, and staff, consultant and legal
costs.
6.2 Public Parking Spaces. Developer shall construct the Parking Garage, in
accordance with the Project Approvals, with approximately 31 I parking spaces to be dedicated
to public use (the "Public Spaces"). The Public Spaces shall be made available to the general
public at no charge, provided that Developer may impose time restrictions that have been agreed
to in writing by City. City shall reimburse Developer in the amount of $9,835,420.00 ("City
Payment"), representing approximately 74 percent of the total cost of the Parking Garage. Prior
to issuance of the first building for the Project, Developer and City shall enter into a Parking
Garage Agreement, in a form similar to that attached hereto as Exhibit C, which includes the
OAK#4812-4530-3661 v3 ll
following terms: (1) Developer covenants to ensure that the Public Spaces remain open to public
use at no cost; (2) City shall rcimburse Developer in an amount equal to the City Payment,
through annual payments in an amount equal to 75 percent of the annual Transient Occupancy
Tax generated by the Hotel, with an interest rate of 5.5o/o per annum, until the City Payment is
paid in full; and (3) Developer or its contractors shall comply with Labor Code section 1720 et
seq, regarding payment of prevailing wages, with respect to construction of the Parking Garage.
The application of prevailing wages to the Parking Garage is not intended to trigger any
prevailing wage requirements to the Project.
6.3 Commercial Core Requirements and Restrictions. Prior to the issuance of the first
building permit for the Project, Developer and City shall enter into an Agreement Regarding Use
Requirements, in a form substantially similar to that attached hereto as Hxhibit D, to be recorded
against the Property setting forth Developer's obligations to (a) maintain and operate non-
Formula Restaurants in key locations in the Project, unless otherwise approved by the City
Manager; (b) restrict Quick Services Restaurants in the Project, unless otherwise approved by the
City Manager; (c) prohibit Drive-Through Business in the Project; and (d) limit ground floor
uses in the Vertical Mixed-Use Buildings to retail businesses unless otherwise approved by the
City Manager, except that office uses allowed under the zoning regulations for the Project,
including real estate and tax preparation, may include a ground floor entrance and lobby, with
main offices to be located on the second floor.
6.4 Master Maintenance Agreement. Prior to the issuance of the first building permit
for the Project, Developer shall execute and have recorded a Master Maintenance Agreement
with City, in a form substantially similar to that attached hereto as Exhibit E, to be recorded
against the Property setting forth Developer's obligations to maintain the storm water system and
the private and public improvements.
6.5 Park Requirements. Developer shall comply with Section 16.14.020 of the City's
Subdivision Ordinancc, regarding parkland dedication, as follows:
(a) On the Final Map, Developer shall offer to dedicate to City fee title to
the park shown on the Vesting Tentative Map ("Public Park"). Developer, at its expense,
shall cause all rccorded and unrecorded monetary liens and all recorded and unrecorded non-
monetary liens, encumbrances, easements, leases, covenants, conditions, restrictions, and other
exceptions to or defects in title, excepting only the lien for current, non-delinqucnt property
taxes, to be removed from title to the Public Park.
(b) Developer, at its expense, shall construct and thereafter dedicate to the
City the public park improvements on the Public Park, as shown oq thc Project Approvals.
Prior to the issuance of the final Certificate of Occupancy for Residential Building J3, the
public park improvements shall be complete and ready fbr acceptance by the City.
(c) Prior to the issuance of thc first Certificate of Occupancy for the first
residential unit Developer shall pay to City the amount of $881,325 as an in-lieu fee.
6.6 Affordabls Flousing. Developer shall develop and maintain l5 of the multi-family
residential rental units within the Project as units affordable to moderate-income households,
OAK #48124530-3661 v3 t2
the Existing Project Approvals shall be processed and considered in a manner consistent with
the vested rights granted by this Agreement and shall be deemed to be tools to implement those
final policy decisions, and shall be approved by City so long as they are consistent with
Applicable Law, this Agreement and the Existing Project Approvals. While City cxprcssly
reseryes its discretion with respect to all Subsequent Discretionary Approvals, City agrees that
it shall not use its authority in considering any application for a Subsequent Discretionary
Approval to changc the policy decisions reflected by the Existing Project Approvals or
otherwise to prevent or frustrate the further development of the Project as set forth in the
Exi sting Proj ect Approvals.
(d) Nothing hcrein shall limit the ability of City to require necessary reports,
analysis or studies, or legally required environmental review, to assist in determining that any
requested Subsequent Ministerial Approval is consistent with this Agreement and the Existing
Project Approvals. If the City determines that an application for a Subsequent Ministerial
Approval is not consistent with this Agreement or the Existing Project Approvals and should
be processed as an application for a Subsequent Discretionary Approval rather than a
Subsequent Ministerial Approval, the City shall specify in writing the reasons for such
determination and may propose a modification which would be processed as a Subsequent
Ministerial Approval. Developer shall then either modifr the application to conform to this
Agreement and the Existing Project Approvals, as the case may be, or the City shall process
the application as an application for a Subsequent Discretionary Approval.
(e) City shall process Developer's applications for Subsequent Project
Approvals to the fullest extenl allowed by Applicable Law and Developer may proceed with
Subsequent Project Approvals as provided for herein to the fullest extent allowed by
Applicable Law.
7.3 Changes and Amendments to Project Approvals.
(a) Given the long term build-out of the Project, the City and Developer
acknowledge that modihcations or amendments to the Project Approvals may be appropriate
and mutually desirable. To the extent permitted by Applicable Law, any Project Approval
may, from timc to time, be amended or modified in the following manner:
(i) Upon the written request of Developer for an amendment or
modification to a Project Approval, the City Manager or the City Manager's designee shall
determine: (A) whether the requested amendment or modification is minor when considered in
light of the Project as a whole; and (B) whether the requested amendment or modification is
consistent with this Agreement and Applicable Law. If the City Manager finds, in his or her sole
discretion, that the proposed amendment or modification is minor, consistent with this
Agreement and Applicable Law, and will result in no new significant impacts not addressed and
mitigated in the environmental review, the amendment shall be determined to be an
"Administrative Project Amendment" and the City Manager may approve the Administrative
Project Amendment consistent with City's procedures for such administrative actions, including
any requirements for notice, public hearing and appeal rights.
OAK #48 I 24530-366 I v3 t4
(ii) Any request of Developer for an amendment or modification to a
Project Approval which is determined by the City Manager or his/her designee not to be an
Administrative Project Amendment as set forth above shall be deemed a "Non-administrative
Project Amendment" and shall be subject to review, consideration and action pursuant to the
Project Approvals, Applicable Law and this Agreement, as applicable.
(b) Administrative Project Amendments shall not require an amendment to
this Agreement.
7.4 Amendment of this Agreement. This Agreement may be amended from time to
time, in whole or in part, by mutual written consent of the Parties or their successors in interest,
as follows:
(a) Admiqistrati'ye Agre-e_Eent Amendmcnts. Any amendment to this
Agreement which does not substantially affect (a) the Term of this Agreement; (b) permitted
uses of the Property; (c) provisions for the reservation or dedication of land; (d) conditions,
tcrms rcstrictions or requirements for subsequent discretionary actions; (e) increases in the
density or intensity of the use of the Property or the maximum height or size of proposed
buildings; or (f) monetary contributions by Developer, shall be deemed an "Administrative
Agreement Amendment" and the City Manager or his or her designee, except to the extent
otherwise required by Applicable [,aw, may approve the Administrative Agreement
Amendment without notice and public hearing.
(b) Major Agreentent Amendments. Any amendment to this Agreement
which is determined not to be an Administrative Agreement Amendment as set forth above
shall be deemed a "Major Agreement Amendment" and shall require giving of notice and a
public hearing before the Planning Commission and City Council in accordance with
Applicable Law. The City Manager or his or her designee shall have the authority to determine
if an amendment is a Major Agreement Amendment or an Administrative Agreement
Amendment.
7.5 Mitieation Measures. Developer shall comply with all applicable mitigation
measures in the Central Rohnert Environmental Impact Report and Mitigation Monitoring and
Reporting Plan (MMRP), as set forth in the Consistency Analysis prepared by Dudek and dated
7.6 Cooperation in the Event of Leeal Challense.
(a) City and Developer, at Developer's sole cost and expense, shall
cooperate in the event of any court action instituted by a third party or other govemmental
entity or official challenging the validity of any provision of this Agreement, any Existing
Project Approvals or any Subsequent Project Approvals and City shall appear in the action and
defend its decision (except that City shall not be required to be an advocate for Developer). To
the extent that Developer determines to contest or defend such litigation challenges, Developer
shall reimburse City, within ten (10) days following City's written demand therefore, which
may be made from time to time during the course of such litigation, all costs incurred by City
in connection with the litigation challengc, including City's administrative, legal and court
OAK #4812-4530-3661 v3 l5
costs, provided that City, in its sole discretion shall determine to either: (a) elect to joint
representation by Dcveloper's counsel; or (b) representation by an experienced litigation
attomey from the law firm of the City Attorney. If Developer defends any such legal
challenge, Developer shall indemnify, defend, and hold harmless City and its officials and
employees from and against any claims, losses, or liabilities assessed or awarded against City
by way ofjudgment, settlement, or stipulation. Nothing herein shall authorize either Party to
settle such legal challengc on terms that would constitute an amendment or modification of this
Agreement, any Existing Project Approvals or any Subsequent Project Approvals, unless such
amendment or modification is approved by the other Party in accordance with applicable legal
requirements and City reserves its full legislative discretion with respect thereto.
(b) In addition, City shall have the right, but not the obligation, to contest or
defend such litigation challenges, in the event that Developer elects not to do so. If City elects
to contest or defend such litigation challenges, Developer shall bear all related costs and
expenses, including City's attorney fees, and, in addition, shall indemnify, defend, and hold
harmless City and its officials and employees from and against any claims, losses, or liabilities
assessed or awarded against City by way ofjudgment, settlement, or stipulation.
7.7 Indemnit.y and Hold Harmless. Developer shall indemnify and hold City and its
elected and appointed officers, agents, employces, and representatives harmless from and against
any and all claims, costs, liabilities and damages (including attomeys' fees and costs), including
without limitation bodily injury, death, or property damage, resulting directly or indirectly from
the approval or implementation of this Agreement, the development and construction of the
Project by or on behalf of Developer, or from any operations performed under this Agreement,
whether such opcrations were performed by Developer or any of Developer's contractors,
subcontractors, agents or employeeso except to the extent such claims, costs and liabilities arise
from the active negligence or willful misconduct of City, its elected and appointed officers,
agents, employees, representatives, contactors or subcontractors.
8. DEFAULT AND REMEDIES.
8.1 Breach. Subject to extensions of time under this Agreement or by mutual consent
in writing, the failure or dclay by either Party to perform any term or provision of this Agreement
shall constitute a breach of this Agreement. In the event of alleged breach of any terms or
conditions of this Agreement, the Party alleging such breach shall give the other Party noticc in
writing specifying the nature of the breach and the manner in which said breach or default may
be satisfactorily cured, and the Party in breach shall have thirty (30) days following such notice
("Cure Period") to cure such breach, except that in the event of a breach of an obligation to
make a payment, the Parly in breach shall have ten (10) days to cure the breach. If the breach is
of a type that cannot bc cured within thirty (30) days, the breaching Party shall, within a thirty
(30) day period following notice to the non-breaching Party, notify the non-breaching Party of
the time it will take to cure such breach which shall be a reasonable period under thc
circumstances ("Extended Cure Period"); commence to cure such breach; and be proceeding
diligently to cure such breach. During the Cure Period or Extended Cure Period, the Party
charged shall not be considered in default for purposes of termination or institution of legal
proceedings; but the City's right to refuse to issue a permit or Subsequent Project Approval,
under Section 8,3, shall not be limited by this provision. The failure of any Party to give notice
OAK#4E124530-3661 v3 16
of any breach shall not be deemed to be a waiver of that Party's right to allege any other breach
at any other time.
8.2 Default. If the breaching Party has not cured such breach within the Cure Period
or the Extended Cure Period, if any, such Party shall be in default ("1)efault"), and the non-
brcaching Party, at its option, may terminate the Agreement, institute legal proceedings pursuant
to this Agreement and shall have such remedies as are set forth in Section 8.4 below.
8.3 Withholding of Permits. In the event of a Delault by Developer, City shall have
the right to refuse to issue any permits or other approvals to which Developer would otherwise
have been entitled pursuant to this Agreement. This provision is in addition to and shall not limit
any actions that City may take to enfbrce the conditions of the Project Approvals.
8.4 Remedies,
(a) ln the event of a Default by City or Developer, the non-defaulting Party
shall have the right to terminate this Agreement upon giving notioe of intent to terminate
pursuant to Government Code Section 65868 and regulations of City implementing such
section. Following notice of intent to terminate, the matter shall be scheduled for consideration
and reviewed in the manner set forth in Government Code Section 65867 and City regulations
implementing this section. Following consideration of the evidence presented in the review
before the City Council, either Party alleging Default by the other Party may give written
notice of termination of this Agrecment to the other Party. Termination of this Agreement
shall be subject to the provisions of Section 8,8 below.
(b) In addition to any other rights or remedies, a Party may institute legal
action to cure, correct or remedy any Default, to enforcc any covenants or agrccments herein,
to enjoin any threatened or attempted violation thereof, or to obtain any other remedies
consistent with the purpose of this Agreement. Any such legal action shall be brought in the
Superior Court for Sonoma County, Califomia, except for actions that include claims in which
the Federal District Court for the Northern District of the State of Califomia has original
jurisdiction, in which case the Northem District of the State of California shall be the proper
venue.
(c) In no event shall a Party, or its boards, commissions, officers, agents or
employees, be liable in damages for any Default under this Agreement, it being expressly
understood and agreed that the sole legal remedy available to a Party for a breach or violation
of this Agreement by the other Party shall be an action in mandamus, specific performance or
other injunctive or declaratory relief to enforce the provisions of this Agreement by the other
Party, or to terminate this Agreement. This limitation on damages shall not preclude actions by
aPafty to enforce payments of monies or fees or the performance of obligations requiring an
obligation of money from the other Party under the terms of this Agreement. In connection
with the foregoing provisions, each Party acknowledges, warrants and represents that it has
been fully informed with respect to, and represented by counsel of such Party's choice in
connection with, the rights and remedies of such Party hereunder and thc waivers herein
contained, and after such advice and consultation has presently and actually intended, with full
knowledge of such Party's rights and remedies otherwise available at law or in equity, to waive
OAKfl48t2-4530-3661 v3 l7
and relinquish such rights and remedies to the extent specified herein, and to rely to the extent
herein specified solely on the rcmedies provided for herein with respect to any breach of this
Agreement by the other Party.
8.5 Periodic Review
(a) The annual review date lor this Agreement shall bs the month and day of
the Effective Datc. No later than 60 calendar days prior to the annual review date, Developer
shall submit a letter demonstrating good faith compliance with the provisions of this
Agreement. However, failure to initiate the annual review within 30 days of receipt of written
notice to do so from City shall not constitute a Default by Developer under this Agreement,
unless City has provided actual notice and opportunity to cure and Developer has failed to so
cure.
(b) The annual review required by Government Code section 65865.1 and
the City Municipal Code shall be conducted as provided herein:
(i) The City Manager shall review Developer's submission to
ascertain whether Developer has complied in good faith with the terms of this Agreement. If the
City Manager finds good faith compliance by Developer with the terms of this Agreement, the
City Manager shall so notify Dcveloper and the City Council in writing and the review for that
period shall be concluded. If the City Manager finds good faith compliance with this
Agreement, the notification to the City Council shall not require a hearing of any kind or an
appearance from Developer. If the City Manager is not satisfied that the Developer is
performing in accordance with the material terms and conditions of this Agreement, the City
Manager shall refer the matter to the City Council for a determination as to compliance with this
Agreement and notify Developer in writing at least ten days in advance of the time at which the
matter will be considered by the City Council.
(ii) In the event that the City Manager is not satisfied pursuant to
section (b)(i) above, the City Council shall conduct a hearing at which Developer must submit
evidence that it has complied in good faith with the terms and conditions of this Agreement. Thc
findings of the City Council on whether Developer has complied with this Agreement for the
period under review shall be based upon substantial evidence in the record. If the City Council
determines that, based upon substantial evidence, Developer has complied in good faith with the
terms and conditions of this Agreement, the review for that period shall be concluded. If,
however, the City Council determines, based upon substantial evidence in the record, that there
are significant questions as to whether Developer has complied in good faith with the terms and
conditions of this Agreement, the City Council may continue the hearing and shall notify
Developer of the City's intent to meet and confer with Developer within 30 days of such
determination, prior to taking further action. Following the 30-day time period, the City Council
shall resume the hearing in order to further consider the matter and to make a determination,
regarding Developer's good faith compliance with the terms and conditions of the Agreement
and to take those actions it deems appropriate, including but not limited to, termination of this
Agreement, in accordance with California Govemment Code section 65865.1 and the City
Municipal Code.
oAK #48124530-3661 v3 l8
(c) Failure of City to conduct an annual review shall not constitute a waiver
by the City of its rights to otherwise enforce the provisions of this Agreement nor shall
Developer have or assert any defense to such enforcement by reason of any such failure to
conduct an annual review.
(d) If, after an annual review, City finds Developer has complied in good
faith with this Agreement, City shall promptly following Developer's request issue to
Developer a certificate of compliance certifying that Developer has so complied through the
period of the applicable annual review, The Certificate of Compliance must be in recordable
lorm and must contain such information as may be necessary to impart constructive notice of
City's finding. Developer may record the Certificate of Compliance in the Official Records of
the County of Contra Costa.
8.6 Enfarced Delay: Extension of Time of Perfonnance. Subject to the limitations set
forth below, performance by either party hereunder shall not be deemed to be in default, and all
performance and other dates specified in this Agreement shall be extended, where delays are due
to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God;
acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; unusually severe
weather; acts or omissions of the other Party; or acts or failures to act of any other public or
govemmental agency or entity (other than the acts or failures to act of City which shall not
excuse performance by City). An extension of time for any such cause shall be for the period of
the enforced delay and shall commence to run from the time of the commencement of the cause
but in any event shall not exceed a cumulative total of one year. Developer acknowledges that
adverse changes in economic conditions, either of Developer specifically or the economy
generally, changes in market conditions or demand, and/or inability to obtain financing or other
lack of funding to complete the work of on-site and off-site improvements shall not constitute
grounds of cnforccd dclay pursuant to this Section. Developer expressly assumes the risk of
such adverse economic or market changes and/or financial inability, whether or not foreseeable
as of the Effective Date.
8.7 Resolution of Disputes. With regard to any dispute involving the Project, the
resolution of which is not provided for by this Agreement or Applicable Law, l)eveloper shall, at
City's request, meet with City. The parties to any such meetings shall attempt in good faith to
resolve any such disputes. Nothing in this Section shall in any way be interpreted as requiring
that Developer and City and/or City's designee reach agreement with regard to those matters
being addressed, nor shall the outcome of these meetings be binding in any way on City or
Developer unless expressly agreed to by the parties to such meetings.
8.8 Terminatiorl. This Agreement shall terminate upon the earlier of (i) expiration of
the Term, or (ii) when the Property has been fully developed and all of Developer's obligations
have been fully satisfied as reasonably determined by City, or (iii) after all appeals have been
cxhaustcd before a final court ofjudgment, or issuance of a final court order directed to the City
to set aside, withdraw, or abrogate the City's approval of this Agreement or any material part
thereof, or (iv) upon a Default under Section 8.2. Upon termination of this Agreement as to all
of the Property, at the request of Developer, the City shall record a Notice of Termination for
each affected parcel in a form satisfactory to the City Attomey in the Office of the Sonoma
County Recorder. In the event this Agreement is terminated, neither party shall have any further
OnK#4812-4530-3661 v3 t9
rights or obligations hereunder, except for those obligations of Developer set forth in Sections
4,2 (Prevalling Wage), 7.6 (Cooperation in the Event of Legal Challenge), and7.7 (Indemnity
and Hold Harmless).
9. MORTGAGEE PROTECTION; CERTAIN RIGHTS OF.CURE.
9.1 Mortgagee Protection. This Agreement shall be superior and senior to all liens
placed upon the Property or any portion thereof after the date on which this Agreement or a
memorandum thereof is recorded, including the lien of any deed of trust or mortgage
("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid,
diminish or impair the lien of any Mortgage made in good faith and for value, but all of the terms
and conditions contained in this Agreement shall be binding upon and effective against all
persons and entities, including all deed of trust beneficiaries or mortgagees ("Mortgagees") who
acquire title to the Property or any portion thereof by foreclosure, trustee's sale, deed in-lieu-of
forecl osure, vo luntary transfer or otherwi se.
9.2 Mqrtsagee Obligations. City, upon receipt of a written request from a foreclosing
Mortgagee, shall permit the Mortgagee to succeed to the rights and obligations of Developer
under this Agreement, provided that all defaults by Developer hereunder that are reasonably
susceptible of being cured are cured by the Mortgagee as soon as reasonably possible, provided,
however, that in no event shall such Mortgagee personally bc liablc for any defaults or monctary
obligations of Developer arising prior to acquisition of possession of such property by such
Mortgagee. The foreclosing Mortgagee shall have the right to hnd a substitute developer to
assume the obligations of Developer, which substitute shall be considered for approval by the
City pursuant this Agreement. In any event, a Mortgagee shall not be entitled to devote the
Property to any use except in full compliance with the Project Approvals nor to construct any
improvements thereon or institute any uses other than those uses or improvements provided for
or authorized by the Agreement or the Project Approvals.
9.3 Notice of Default to Mortqagee. If City receives notice from a Mortgagee
requesting a copy of any notice of default given to Developer and specifying the address for
service thereof, City shall endeavor to deliver to the Mortgagee, concurrently with service
thereof to Developer, all notices given to Developer describing all claims by the City that
Developer has defaulted hereunder. If City determines that Developer is not in compliance with
this Agreement, City also shall endeavor to serve notice of noncompliance on the Mortgagee
concunently with service on Developer. Each Mortgagee shall have the right, but not the
obligation, during the samc period available to Developer to cure or remedy, or to commence to
cure or remedy, the condition of default claimed or the areas of noncompliance set forth in City's
notice.
10. ASSIGNABILITY.
10.1 Assignment by Developer. The qualifications and identity of Laulima Rohnert
Station, LLC, are of particular importance to City in the development of the Property. Therefore,
prior to the issuance of the first building permit for any structure other than the Hotel or a
residential unit, Developer may not convey, assign or transfer ("Transfer") any of its interests,
rights or obligations under this Agreement, other than the obligations regarding the Hotel and
OAK#48124530-3661 vj 20
residential units, without the prior written consent of City, which consent may be granted in
City's sole and absolute discretion. After the issuance of the first building permit for any
structure other than the Hotel or a residential unit and for the T'ransfer of the Hotel or residential
obligations, Developer may only Transfer its interests, rights or obligations under this Agreement
with the prior written consent of City, which consent shall not be unreasonably withheld or
delayed. Any Transfer of all or a portion of this Agreement shall be documented by an
Assignment and Assumption Agreement in a form reasonably acceptable to the City. In no event
shall the obligations conferred upon Developer under this Agrcemcnt bc transfened except
through a transfer of all or a portion of the Property, Should Developer transfer any of its
interests, rights or obligations under this Agreement in connection with a transfer by Developer
of a portion of the Property as provided herein (such I'ransfer, a "Partial Assignment"), such
Partial Assignment shall be documented by an Assignment and Assumption Agreement in the
form attached hereto as Exhibit F or such other form reasonably acceptable to the City. To the
extent provided in the Assignment and Assumption Agreement, the transferee of such interests,
rights or obligations under this Agreement (each, a "Partial Transfcrcc") shall only be liable for
performance of the obligations of Developer under this Agreement (including, without
limitation, indemnification obligations and the obligation to install public improvements and pay
fees) related to the portion of the Property transferred to such Partial Transferee, and no Default
by Developer or any other assignee who received a Partial Assignment hereunder shall constitute
an event of Default hereunder by such Partial Transferee. Should Developer transfer any of its
interests, rights or obligations under this Agreement, it shall nonetheless remain liable for
performance of the obligations for installation of public improvements and payment of fees,
unless the transferee agrees to be bound by the relevant terms of the Agreement, including the
obligations for installation of public improvements and payment of fees. During the Term,
Developer shall provide City with written notice of a request to Transfer any interest in this
Agreement 90 days prior to any such contemplated Transfer. Any such request for a'lransfer
shall be accompanied by quantitative and qualitative information that substantiates, to the City's
satisfaction, that the proposed transferee has the capability to fulfill the rights and obligations of
this Agreement. Within 45 days of such a request and delivery of information, the City Manager
shall make a determination, as to whcthcr the Transfer shall be approved or whether such
Transfer necessitates an Amendment to this Agreement, subject to approval by the City Council.
Each successor in interest to Developer shall be bound by all of the terms and provisions
applicable to the portion of the Property acquired. This Agreement shall be binding upon and
inure to the benefit of the Parties' successors, assigns and legal representatives during the Term
of the Agreement. This Agreement shall be recorded by the City in the Sonoma County
Recorder's Office promptly upon execution by each of the Parties.
10.2 Covenants Run With The l.and. All of the provisions, agreements, rights, powers,
standards, terms, covenants and obligations contained in this Agreement shall run with the land
and shall be binding upon the Parties and their respective heirs, successors (by merger,
consolidation or otherwisc) and assigns, devisees, administrators, representatives, lessees and all
other persons or entities acquiring the Property, any lot, parcel or any portion thereof and any
interest therein, whether by sale, operation of law or other manner, and shall inurc to the benefit
of the Parties and their respective successors.
10.3 Pre-Approved Transfers. The following transfers shall not require approval by the
City, and shall automatically, upon the satisfaction of the conditions in Section 10.1 above, result
OAK#48124530-3661 v3 2t
in the release of Developer of its obligations hereunder as they may relate specifically to the
specific property or asset sold or transferred: (a) sale or lease of the Property in its entirety to
any corporation, limited liability company, partnership or other entity which is controlling of,
controlled by or under common control with Developer and "control" for purposes of this
definition means effective management and control of the other entity, subject only to major
events requiring the consent or approval of the other members of such entity; and (b) a loan or
mortgage pertaining to the Property.
I0.4 Non-AssurBi[g Transferees. Except as otherwise required by a transferor, the
burdens, obligations and duties of such transferor under this Agreement shall not apply to any
purchaser ofany individual house offered for sale. The transferee in a transaction described
above and the successors and assigns ofsuch a transferee shall be deemed to have no obligations
under this Agreement, but shall continue to benefit from the vested rights provided by this
Agreement for the duration of the Term hereof. Nothing in this Section shall exempt any
property transferred to a non-assuming transferee from payment of applicable fbes, taxes and
assessments or compliance with applicable conditions of approval.
10.5 F'oreclosurg. Nothing contained in this Section shall prevent a transfer of the
Property, or any portion thereof, to a lender as a result of a foreclosure or deed in lieu of
foreclosure, and any lender acquiring the Property, or any portion thereof, as a result of
foreclosure or a deed in lieu offoreclosure shall take such Property subject to the rights and
obligations of Developer under this Agreement; provided, however, in no event shall such lendcr
be liable for any defaults or monetary obligations of Developer arising prior to acquisition of title
to the Property by such lender, and provided further, in no event shall any such lender or its
successors or assigns be entitled to a Building Permit or occupancy certificate until all fees due
under this Agreement (relating to the portion of the Property acquired by such lender) have been
paid to City.
11. GENERAL.
I 1.1 Controlling Law. fhis Agreement shall be govemed by the laws of the State of
California, without reference to choice of laws principles.
11.2 Construction of Agreement. The language in this Agreement in all cases shall be
construed as a whole and in accordance with its fair meaning. Each reference in this Agreement
to this Agreement or any of the Existing Project Approvals or Subsequent Ministerial or
Discretionary Approvals shall be deemed to refer to the Agreement, Project Approval or
Subsequent Ministerial or Discretionary Approval as it may be amended from time to time,
whether or not the particular reference refers to such possible amendment. Section headings in
this Agreement are for convenience only and are not intended to be used in interpreting or
construing the terms, covenants or conditions of this Agreement. This Agreement has been
reviewed and revised by legal counsel for both City and Developer, and no presumption or rule
that ambiguities shall be construed against the drafting party shall apply to the interpretation or
enforcement of this Agreement. Unless the context clearly requires otherwise, (i) the plural and
singular numbers shall each be deemed to include the other; (ii) the masculine, feminine, and
neuter genders shall each be deemed to include the others; (iii) "shall," "will," or "agrees" are
mandatory, and"may" is permissive; (iv) "or" is not exclusive; (v) "include," ooincludes" and
OAK#48124530-3661 v3 22
ooincluding" are not limiting and shall be construed as if followed by the words "without
limitation," and (vi) oodays" means calendar days unless specifically provided otherwise.
I 1.3 No Waiver. No delay or omission by the City or Developer in exercising any right
or power accruing upon the other Party's noncompliance or failure to perform under the
provisions of this Agreement shall impair or be construed to waive any right or power. A waiver
by City or Devcloper of any of thc covenants or conditions to be performed by the other Party
shall not be construed as a waiver of any succeeding breach of the same or other covenants and
conditions.
1 1.4 Agr$eq[gnt is Entire Agreement. This Agrccment and all exhibits attached hereto
or documents incorporated herein by reference, are the sole and entire agreement between the
Parties concerning the Property. The Parties acknowledge and agree that they have not made any
representation with respect to the subject matter of this Agreement or any representations
inducing the execution and delivery, except representations set fonh herein, and each Party
acknowledgcs that it has rclicd on its own judgment in entering this Agreement. The Parties
further acknowledge that all statements or representations that heretofore may have been made
by either of them to the other are void and of no effect, and that neither of them has relied
thereon in its dealings with the other.
I 1.5 Estoppel Certificate. City or Developer from time to time may deliver written
notice to the other Party requesting written certification that, to the knowledge of the certifying
Party, (i) this Agreement is in full force and effect and constitutes a binding obligation of the
Parties, (ii) this Agreement has not been amended or modified either orally or in writing, or, if it
has been amended or modified, specifying the nature of the amendments or modifications, and,
(iii) the requesting Party does not have knowledge of default in the performance of its
obligations under this Agreement, or if in known default, describing therein the nature and
monetary amount, if any, of the default.
I 1.6 Further Documents. Each Party shall execute and deliver to the other all other
instruments and documents as may be reasonably necessary to carry out this Agreement.
11.7 Time of Essence. Time is of the essence in the perforrnance of each and every
covenant and obligation to be performed by the Parties hereunder.
I 1.8 Construction. This Agreement has been reviewed and revised by legal counsel for
both the City and Developer and no presumption or rule that ambiguities shall be construed
against the drafting Party shall apply to the interpretation or enforcement of this Agreement.
11.9 Notices. Except as otherwise expressly provided herein, all notices and demands
pursuant to this Agreement shall be in writing and delivered in person, by commercial courier or
by first-class certified mail, postage prepaid. Except as otherwise expressly provided herein,
notices shall be considered delivered when personally scrvcd, upon delivery ifdelivered by
commercial courier, or two (2) days after mailing if sent by mail. Notices shall be sent to the
addresses below for the respective Parties; provided, however, that any Party may change its
address for purposes of this Section by giving written notice to the other Parties. These
addresses may be used for service of process:
OAK #48124530-3661 v3 23
City:City Clerk
City of Rohnert Park
130 Avram Avenue
Rohnert Park, California 94928
with copy to: Michelle Marchetta Kenyon
City Attomey
City of Rohnert Park
1901 Harrison Street, 9th Floor
Oakland, Califomia 94612
Developer:Laulima Rohnert Station, LLC
1l I Pine Street, Suite 1315
San Francisco, CA 94014
Attention: David Bouquillon
with copy to: Allen Matkins, et al.
3 Embarcadero Center, l2th Floor
San Francisco, CA 94lIl
Attention: David H. Blackwell
The provisions of this Section shall be deemed directive only and shall not detract from the
validity of any notice given in a manner that would be legally effective in the absence of this
Section.
11.10 Developer is an Independent Contractor. Developer is not an agent or employee of
City, but is an independent contractor with full rights to manage its employees subject to the
requirements of the law. All persons employed or utilized by Developer in connection with this
Agreement are employees or contractors of Developer and shall not be considered employees of
City in any respect.
I 1.1 1 No Joint Venture. It is specifically understood and agreed that the Project is a
private development. No partnership, joint venture or other association of any kind between City
and Developer is formed by this Agreement.
ll.l2 Nondiscriminatioq. Dcveloper shall not disuiminate, in any way, against any
person on the basis of race, color, national origin, gender, marital status, sexual orientation, age,,
creed, religion or disability in connection with or related to the performance of this Agreement.
11.13 No Third Pa*y Bg.neficiary. This Agreement shall not be construed or deemed to
be an Agreement for the benefit of any third party or parties, and no third party or parties shall
have any claim or right ofaction hereunder for any cause whatsoever.
IREMAINDER OF PAGE INT'ENTIONALLY LEFT BLANKJ
OAK f48124530-3661 v3 24
IN WITNESS WHEREOF, this Agreement has been entered into by and between the
Parties as of the Effective Date.
CITY:
City of Rohnert Park, a
California municipal corporation
By:
Darrin W. Jenkins
City Manager
APPROVED AS TO FORM:
Michelle Marchetta Kenyon
City Atomey
ATTEST:
By:
I By:
JoAnne Buergler
City Clerk
DEVELOPER:
Laulima Rohnert Station, LLC,a
California limited liability company
By:
Name:
OAK #48124530-3561 v3 2s
EXHIBIT A
LEGAL DBSCRIPTION
fto be inserted]
OAK #48124530'3661 v3
Exhibit "A"
Legal Description
Lands of Laulima Rohnert Station LLC
All that cefiain real property situated in the City of Rohnert Park, County of Sonoma, State of
California, being the lands of Laulima Rohnert Station LLC described in that certain Grant Deed
recorded Dscember 7,2017 under Document Number 2017^092256, Sonoma County Records,
being a portion of Lot 2, as shown upon that certain Parcel Map entitled "Rohnert Park Parcel
Map No, 22", ffred for record September 14, 1976 in Book 23g of Maps, Pages g and 10,
Sonoma County Records, being more particularly described as follows:
Commencing at a standard City Monument marking the centerline of State Farm Drive fi'orn
which a standard City Monument marking the centerline of State Farm Drive bears North
29"44'12" Wcst, 924.89 feet; thence leaving said centerline North 60'19'48" East, 43.00 feet to a
point on the westerly line of said Lot 2, saidpoint being the POINT OF BEGINNING; thence
along said-westerly line North 29"40' 12" West, g24.8g feet to the beginning of a curve to the
right, having a radius of 207 .00 fect; thence along said curye and along said westerly line,
through a central angle of 32"24'53", an arc length of I 1 7. I 1 feet; thence along said westerly
line North 02o44'40" East 98.23 feet to the beginning of a curve to the right, having a radius of
25.00 feet; thence along said curve and along said westerly line, through a central angle of
9233'40", an arc length of 40.39 feet; thence along the northerly line of said Lot 2, South
84"41'40" East, 973.50 feet; thence along said northerly line South 88o17'10" East, 98.46 feet
to the northwest corner of the lands conveyed to the City of Rohnert Park by that certain Grant
Deed recorded April 21, 1992 under Docurnent Number 1992-0046140; being the beginning of a
non-tangeut curve to the left whose center bears South 88"54'52" East, 146.00 fbet, thence
leaving said northerly line, along the westerly line of said lands, southerly along said cure,
through a central angle of 48"20'28", an arc length of 123.18 feet, to the beginning of a reverse
curye to the right, having a radius of 659.56 feet; thence along said curye, through a central angle
of 2 I "3 5 ' I 0" an arc length of 248.49 feet to the southerly corner of said lands, being a point on
the easterly line of said Lot2; thence along said easterly line South 25"40'lA- East, 477.43 feet
to the most easterly comer of said Lot 2, being a point on the northerly line of the lands of the
City of Rohnert Park described in that cettain Grant Deed recorded March 3 , I97 5 in Book 2937
of Official Records, Page 721, Sonoma County Records, as shown on said Palcel Map; thence
along the southerly line of said Lot2 and the northerly line of said lands South 64"20'00" West,
265 .A4 feet to the most westerly comer of said lands; thence along the easterly line of said Lot 2
and the westerly line of said lands South 25"4A'lA" East, 335.90 feet to the most southerly
corner of said lands, being a point on the southerly line of said Lot 2; thence along said southerly
line on a non-tangent curve to the right, whose center bears North 2034'42- West, 1040.00 feet;
thence westerly along said curve through a central angle of 639'4'7" an arc length of 120.94 feet
to the beginning of a non-tangent compound curve whose center bears North 10"25'43" W'est
620.00 feet; thence westerly along said curve through a central angle of 10o18'43", an arc length
of I I 1.59 feet; thence continuing along said southerly line South 89o53'00" West, 632.06 feet to
the begiruring of a curve to the right, having a radius of 25,00 feet; thence along said curye,
ttu'ough a central angle of 90"00'00", an arc length of 39.27 feet; thence along the westerly line
Exhibit'i{"
Legal Description
Lands of Laulima Rohnert Station LLC
of said Lot 2 North 0"07'00" West, 89.63 feet to the beginning of a curve to the left, having a
radius of293.00 feet; thence along said curve, through a central angle of 29o39,L2,,, anatc
tength of 151,13 feet to the POINT OF BEGINNING.
Containing 29.88 Acres, more or less.
BeingAPN 143-051-072
See attached Exhibit 'B' for graphic depiction.
This description prepared by Carlile.Magy.
.01;ofttlB
R. Olin PLS 7590 Date
END OF DESCRIPTION
EXHIBIT'B'
_:r q!! NER !-PARL e4FR Es e wAY
UOIE
THIS EXHIBIT IS FOR GRAPHIC
PURPOSES ONLY. ANY
ERRORS OR OMISSIONS SHALL
NOT AFFECT THE DEED
DESCRIPTION.
R=25.00
L=40.J9 R-146.00
TF
R=207.00 L:'123.18
32',24'53"
PARCEL MAP NO, 22
Lof 2
BOOK 23S OF MAFS,
PAGES 9 & ]O.
]-AULIMA ROHNERT STATION LLC
DN 2017-092256
APN 143-o5t-o72
g'49"E
43.00'
POINT OF
BEOtNNt'tC
R=293.00
IF29'.33'12"
L=l51.15
037'00'u/ R=620.00
89.65'
R=25.00
dFl01E'
L=39.27
- .s895J'00'W 632.08
sgg17'10"E RADIAL
s9854'52"E
L=117.11
FOUND STANDARD
drY M1NUMENT(TYP)
CI|Y OF
ROHNERT PARK
29A7 aR 721
APN 143-05l -.o8e
R=1040.00
F639'
L=120.94
L=l11.59POINT OF
CAilUENCEMENT
3000
ENTERPR,SE DRIIE
600
fcet
PLAT TO ACCOMPANY
LEGAL DESGRIPTION
FIOHNEFIT PAHK, CALIFORNIA
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Crvrr Enrorrue eRS . URaAN Plnvr*ans. L.o.r!u Sugvsyoes. LeNoscepp Ancutrecrs
15 TrrrRD Srneor. Srtu llosA. CA 9s4ot
TEL (707) 542-6451 FAx (?07) 542-52t2
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LAUTIMA ROIINERT STATION LtC
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PROJEaT Na. 2A|7A24.OA aHEET I AF I
EXHIBIT B
DEPICTION OF TRANSF'ER CITY PROPERTY AND LOT-LINE ADJUSTMENT
fto be inserted]
OAK #48 l2-4530-3661 v3
Exhibit B
poal llacnrinlir
Transfer Parcel
City of Rohnert Park to Laulima Rohnert Station LLC
All that certain real property situated in the City of Rohnert Park, County of Sonoma, State of
Califomia, being a portion of the lands of The City of Rohnert Park described in that certain
Grant Deed recorded March 3, 1975 in Book 2937 of Offtcial Records, Page 721, Sonoma
County Records and lying southeasterly of and adjoining Lot 2, as shown upon that certain
ParceT Map entitled "Rohnert Park Parcel Map No. 22",ftledfor record September 14, 1976 it
Book 239 of Maps, Pages 9 and 10, Sonoma County Records, being more particularly described
as follows;
Commencing at a standard City Monument marking the centerline of State Farm Drive from
which a standard City Monument marking the centerline of State Far.m Drive bears North
29"40'12" west, 924.B9 feet; thEnce North Bz"01'zl" East, 821.69 feet to the most westerly
corner of said lands as shown on said map, being the POINT OF BEGINNING; thence along the
northerly line common to said lands and said Lot 2, North 64"20'00" East, 105,81 feet; thence
leaving said common line South 25"41'lg" East, 63.68 feet; thence south 64olg,4l', West,
105'83 feet to the westerly line of said lands being & common Iine with said Lot 2 ; thence along
said common line, North 25"40'10'East,63.72 feet to the poINT oF BEGINNING.
Containing 6,741 Sq. Ft, more or less.
Being a portion of APN 143-051-089
See attached Exhibit 'B' for graphic depiction.
This description prepared by Carlite.Macy
CL l0 t8 t8
J R. Olin PLS 7590 Date
END OF DESCRIPTION
EXHIBIT'B'NOIE.IHIS EXHIBIT IS FOR GRAPHIC
PURPOSES ONLY. ANY
ERRORS OR OMISSIONS SHALL
NOT AFFECT THE DEED
DESCRIP]'ION.
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39
PAGES
ARGO RP TOWNE
CENTTER ILC ET AL
DN 2017-OO43935
)4A-U3t -V34
200
1" = 200'
N25'40'.l0"W
63.72'ROHNERT FARK
2537 0R 721
i4-J-u5 i
400
feet
PLAT TO ACCOMPANY
LEGAL DES|CRIFTION
FIOHNEFIT PAFIK, CALIFORNIA
ooroaE?,20lb
CrvtL ENcrNeens . Unsnu Ptexuexs. Laxo Sunvevons. Llroscape Ancttrocts
L5 TslRo Srxoer, Suta RosA, CA 95401
TEr {707} 542-645I F^x (707) 542,-52L2
R:1040.00
F5'05'18"
L:92.36
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CITY OF ROHNENT PARK
CORPORATION YARD
-
CARLILE. MACY
f.RAEAf No- 2Ol7o24.OA 5IIEET I OF I
EXHIBIT C
PARKING GARAGE REIMBURSEMENT AGREEMENT
[to bc inscrtcdl
OAK #48124530-3661 v3
RECORD WITTIOUT FEE
PURSUANT To GoVERNMENT CODE g 6103
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
CITY OF ROHNERT PARK
CITY CLERK'S OFFTCE
130 AVRAM AVENUE
ROHNERT PARK, CALITORNIA 94928
SPACE ABOI/E T'HIS T,INE FOR RECORDER'S USE ANLY
PARKING GARAGE IMPROVEMENT
AND REIMBURSEMENT AGR"EEMENT
This PARKING GARAGE IMPROVEMENT AND REIMBURSEMENT
AGREEMENT ("Agrcement"), dated as of _,201--(the "Effective Date"),ismadeandenteredintobyandbetweenctffinr1.city''),aCalifornia
municipal corporation, and LAULIMA ROHNERT STATION, LLC, a California limited
liability company (the "Developer"). City and Developer may each be referred to as a "Party,"
and collectively the "Parties".
RECITALS
A. Developer is the owner of that certain real property within the Central Rohnert
Park Priority District at 6400 State Farm Drive, of approximately 30 acres in size, identified as
Assessor's Parcel Number 143-05 l-072,as fuither described in b,xhibit A. attached hereto and
incorporated by this reference (the "Property").
B. City and Developer have entered into a Development Agreement dated as of _("DA"), which provides, among other things, for: (i) Developer's vested right to
construct a mixed-use development known as Station Avenue, consisting of 140,000 square feet
of retail, 130,000 square feet of office, and approximately 460 residential dwelling units; a 156-
room upscale hotel (the "Hotel"); a parking garage of 420 parking spaces (the "Parking
Garage"); and public plazas and parks on the Property (collectively, the "Project'); (ii) certain
requirements as to Developer's development and use of the Property and the Project; and (iii)
requirements for Developer to ensure 311 parking spaces in the Parking Garage are available for
public use at no cost (the "Public Spaces") and for the City to reimburse Developer for the
proportionate cost of construction of the Parking Garage through Transient Occupancy Tax
generated from the Hotel. Capitalized terms not otherwise defined herein shall have the
meanings given to such terms in the DA.
C. Section 6.2 of the DA provides that Developer shall enter into a Parking Garage
Agreement prior to the issuance of the first building permit for the Project, which includes the
following terms: (l) Developer covenants to ensure that the Public Spaces remain open to public
use at no cost; (2) City shall reimburse Developer for its costs in constructing the Public Garage
an amount proportionate to the Public Spaces available in the Parking Garage, through annual
payments in an amount equal to 75 percent of the annual Transient Occupancy Tax generated by
the Hotel, with an interest m;te of 5.5Vo per annum, until the city payment is paid in full; and (3)
Developer or its contractors shall comply with Labor Code section 1720 et seq, regarding
payment of prevailing wages, with respect to construction of the Parking Garage.
D. Developer and City desire to enter into this Agreement in accordance with the
requirements of Section 6.2 of the DA.
AGREEMENT
Based upon the foregoing Recitals, which are incorporated into this Agreement by this
reference, and for good and valuable consideration, the adequacy of which is hereby acknowledged
by both Parties, City and Developer hereby agree as follows:
1. Purpose. The purpose of this Agreement is to set forth Developer's agreement to
make the Public Spaces in the Parking Garage available to the public at no charge, City's
agreement to reimburse the Developer for a proportionate share of the construction costs of the
Parking Garage associated with the provision of the Public Spaces, and Developer's obligation to
pay prevailing wage for construction of the Parking Garage.
t l-r^--+-,^+:^- ^f D^*Li-- (\^.--^ n-"^l^*^. ol-oll anncfnrnf incfqll onrl nnmalpfpa. vurloLl.iirltiri,r ijj. I (uNrrIE, u(4liw, vv v wrvvwa olr4ll vvrrrr^ svlr r.lo!q^l 4rru vv^.^Prv!v,
or cause to Ue "onstruLt"a,
irntuitiA ana.o*pl"t"d, the Farking Garage as described and
approved in the Final Development Plan approved by the City Council by Resolution No. _ on
, in accordance with all applicable federal, state and local laws and
regulations. Developer shall provide all equipment, tools, materials, labor, tests, design work,
and engineering services necessary to fully and adequately complete the Parking Garage. The
construction, installation and completion of the Parking Garage and all labor and materials
furnished in connection therewith are hereinafter referred to collectively as the "Work." All
Work shall be completed in a good and workmanlike manner in accordance with accepted design
and construction practices.
3. ' Prevailine Wase Requirernents. The Parties agree that the Work is subject to
reimbursement of public funds, as provided herein, and thus is subject to the payment of
prevailing wages pursuant to California Labor Code Section 1720 and all State Labor Code
requirements and implementing regulations of the Department of Industrial Relations pertaining
to oopublic works" (collectively, "Prevailing Wage Laws"). Developer shall comply with, and
cause its contractors and subcontractors to comply with the Prevailing Wage Laws. Developer
shall require the contractor for the Parking Garage to submit, upon request by City, certified
copies of payroll records to City, and to majntain and make records available to City and its
designees for inspection and copying to ensure compliance with Prevailing Wage Laws.
Developer shall also include in each of its contractor agreements with respect to the Parking
Garagc, a provision in form acceptable to City, obligating the contractor to require its contractors
and/or subcontractors to comply with Prevailing Wage Laws and to submit, upon request by
City, certified copies of payroll records to City and to maintain and make such payroll records
2
available to City and its designees for inspection and copying during regular business hours at
the Property or at another location within City. Developer shall defend (with counsel chosen by
the City), indemnify, assume all responsibility for, and hold harmless City and its officers,
officials, employees, volunteers, agents and representatives from and against any and all present
and future liabilities, obligations, orders, claims, damages, fines, penalties and expenses
(including attomeys' fees and costs) arising out of or in any way connected with Developer's or
its contractors' obligations to comply with all Prevailing Wage Laws, including all claims that
may be made by contractors, subcontractors or other third party claimants pursuant to Labor
Code sections 1726 and 1781 and any claims arising from construction of thc Parking Garage.
4. Completion of Work. After Developer completes the Work as provided in this
Agreement, Developer shall provide City with a witten notice of completion and documentation
ofall costs and expenses actually and reasonably incurred by Developer or its contractors in
constructing the Parking Garage, which shall be reviewed and approved by City (the "Actual
Costs").
5. Duty to Maintain Parking Garase. Developer shall be solely responsible for the
operation and maintenance of the Parking Garage. Developer shall maintain the Parking Garage
in a state of good repair. Maintenance shall include, but shall not be limited to, repairing
pavement, curbs, gutters, sidewalks, parkways;maintaining any landscaping in good condition;
and sweeping, repairing, and maintaining in good and safe condition all the parking spaces, drive
aisles, pathways and stairs. If Developer fails to maintain the Parking Garage, it shall promptly
perform such maintenance work when notified to do so by City.
6. Public Parking $paces. Developer shall dedicate the Public Spaces in the Parking
Garage to public use at all times at no charge to the City or the public, provided that Developer
may impose time restrictions that have been agreed upon in writing by City. The Public Spaces
shall be identified prior to the issuance of a building permit for the Parking Garage and shall be
clearly marked and designated in a manner approved by City.
7. Reimbursement.
7.1 City Reimbursement. City shall reimburse Developer for the costs of the
Parking Garage in an amount up to $9,835,420 (the "City Payment"). The City Payment is equal
to 74 percent of the estimated total costs of construction of the Parking Garage, currently
estimated at$13,291,108 (the "Estimated Cost'), which represents the percentage share of Public
Spaces in the Parking Garage. After completion of the Work as provided above, if the Actual
Cost is less than the Estimated Cost, the City Payment shall be reduced proportionately. If the
Actual Costs are greater than the Estimated Cost, the City Payment shall not be increased.
7.2 Conditions to Payment. The following are conditions precedent to City's
payments under Section 7.3: (a) Developer shall be in compliance will all terrns of this
Agreement, including without limitation, its obligation to pay prevailing wages under Section 3
and to maintain the Public Spaces as provided in Section 5; and (b) as the City intends to fund
the City Payment with monies obtained from the Transient Occupancy Tax received by the City
in connection with the Hotel, the Hotel must be completed and open for business.
^J
7.3 Annual Payment. Beginning on the date that is one year after the issuance
of a certificate of occupancy for the Parking Garage and the opening of the Parking Garage for
public use ("Initial Payment Date"), and provided the conditions set forth in Section 7.2 of this
Agreement are met, City shall pay to Developer an amount equal to 75 percent of any Transient
Occupancy Tax received from Hotel over the prior year until the City Payment is paid in full.
7.4 Interest Accrual. The Annual Payment described in Section 7.3 will be
applied to the principal and interest remaining outstanding on the City Payment. Then, after the
principal has been reduced, the remaining balance will be increased by 5.5% once per year.
8. Developer Not A$:nt of City: No fhird Pa*y Beneficiaries. Neithcr Developer
nor Developer's contractors, subcontractors, agents, officers, or employees are agents, partnerc,
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 :re 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. Compliance with Laws. Developer shall fully comply with all federal, state and
local laws, ordinances and regulations, including without limitation the Prevailing Wage Laws,
in the perforrnance of this Agreement. Developer shall obtain all necessary permits and licenses
for the Work, give all necessary notices, and pay all fees and taxes required by law.
10. Lndemnifisation. Developer agrees to indemnify, defend and hold the City, its
eipoiirre qnri annninfed hnarris cnrnrnissions nfficers agenis emnlovees anri consuitants-
harmless from and against any and all claims, liabilities, losses, damages, injuries, penalties,
fines, judgments, awards, decrees, attorneys' fees and related costs or expenses of any kind or
nature (each a "Claim" and collectively, "Claims") arising out of the performance of this
Agreement or any acts or omissions of Developer or any of Developer's contractots,
subcontractors, agents, or employees in performing any of their obligations set forth in this
Agreement.
1 l. Transfers: Assignments. Developer may assign its obligations under this
Agreement to successor owner(s) of the Property with the prior witten consent of the City, not
to be unreasonably withheld or delayed. 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 Attomey. The assignor shall be released from all obligations set
forth in this Agreement upon the effective date of the assignment.
12. Binding Upon I{eirs. Successors and Assi&ns. Subject to the assignment
restrictions set forth above, the terms, covenants and conditions of this Agreement shall be
binding upon all heirs, successors and assigns ofthe Parties'
13. Notices. Except as otherwise expressly provided herein, all notices and demands
pursuant to this Agreement shall be in writing and delivered in person, by commercial courier or
by first-class certified mail, postage prepaid. Except as otherwise expressly provided herein,
notices shall be considered delivered when personally delivered, upon delivery if delivered by
commercial courier, or two (2) days after mailing if sent by mail. Notices shall be sent to the
4
addresses below for the respective Parties; provided, however, that any Party may change its
address for purposes of this Section by giving written notice to the other Parties. These
addrcsses may be used for service ofprocess:
City:City Clerk
City of Rohnert Park
130 Avram Avenue
Rohnert Park, Califomia 94928
with copy to: Michelle Marchetta Kenyon' City Attorney
City of Rohnert Park
l90l Hanison Street, 9th Floor
Oakland, Califomia 94612
Developer:Laulima Rohnert Station, LLC
1 I 1 Pine Street, Suite 13 t 5
San Francisco, CA 94014
Attention: David Bouquillon
with copy to: Allen Matkins, et al.
3 Embarcadero Center, l2th Floor
San Francisco, CA 94111
Attention: David H. Blackwell
14. Fleadings. 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.
15. 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.
16. Entire Agreemenl Amendment. The terms and conditions of this Agreement
constitute the entire agreement between City and Developer with respect to the matters addressed
in this Agreement. This Agreement may not be altered, amended or modified without the written
consent of the Parties.
17. 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 Califomia.
18. 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
5
purports to bind and ifsuch 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.
19. Time is of the Essence. Time is of the essence of this Agreement and of each and
every term and condition hereof.
20. RuLs with the Landt Recordation. This Agreement shall run with the Property
Upon execution, this Agreement shall be recorded in the Official Records of Sonoma County.
21. Counterparts. This Agreement may be signed in counterparts, each of which shall
constitute an original and which collectively shall constitute one instrument.
22. Mortgagee Protection. No breach of this Agreement shall deleat or render invalid
the lien of any deed of trust or mortgage recorded against the Property. No lender taking title to
the Property through foreclosure or deed in-lieu of foreclosure shall be liable for any defaults or
monetary obligations of Developer arising prior to acquisition of possession of such property by
such lender. The foreclosing lender shall have the right to find a substitute developer to assume
the obligations of Developer, which substitute shall be considered for approval by the City
pursuant this Agreement, Any lender who has recorded a deed of trust or mortgage against the
Property shall have the right, but not the obligation, during the same period available to
Developer to cure or remedy, or to commence to cure or remedy, the condition of default
claimed or the areas of noncompliance set forth in City's notice. In any event, a lender shall not
be entitied to <ievote the Property to any use except in iuli compiiance with the City approvais
nor to construct any improvements thereon or institute any uses other than those uses or
improvements provided for or authorized by the City approvals.
23. ' Construction. This Agreement has been reviewed and revised by legal counsel
for both the City and Developer and no presumption or rule that ambiguities shall be construed
against the drafting Party shall apply to the interpretation or enforcement of this Agreement.
24. Waiver. No waiver of any default shall constitute a waiver of any other default or
breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or
service voluntarily given or performed by a Party shall give the other Party any contractual right
by custom, estoppel, or otherwise.
IN WITNESS WHEREOF, this Agreement has been entered into by and between the
Parties as of the Effective Date.
CITY:
City of Rohnert Park, a
California municipal corporation
6
By
By:
APPROVED AS TO FORM
Darin W. Jenkins
City Manager
DEVELOPER:
Laulima Rohnert Station, LLC, a
California limited liability company
By:
Name:
Title:
Michelle Marchetta Kenyon
City Attorney
ATTEST:
By:
JoAnne Buergler
City Clerk
-J
7
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
or of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA
COUNTY OF
before me,
Date Nam* And l itlc Of Oflicer
)
)
On
personally appeared
Naf,e ofSiEner(s)
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/heritheir 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 olNotary Public
8
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
truthfu or val of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA
COLINTY OF
before me,
)
)
On
Dale Name And 'l itle 0f Otlicer
personally appeared
Name ofSigner(s)
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,iherltheir 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.
Srgnature ot Notary Public
9
EXHIBIT I)
AGREEMENT REGARDING USE REQUIREMENTS
fto be inserted]
OAK #4812-4530-3661 v3
RECORD WITHoUT FEE
Punsulur ro GovenNMs,ltr CoDE $ 6103
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
CITY OF ROHNERT PARK
CITY CLERK'S OF'FICE
130 AVRAM AVENUE
ROHNERT PARK, CALIFORNIA 94928
SPACE ABOVET'HIS LINE IIOR RECORDEII'S USE ONI.Y
AGREEMENT REGARDING USE RESTRICTIONS
This AGREEMENT REGARDING USE RESTzuCTIONS ("Agreement"), dated as of
crryoFRoH*ERrb'f,k-l,3i;ryTff ,n.f,]l','ilffi HL:1H:I];::,J^T?'HX""
ROHNERT STATION, LLC, a California limited liability company (the "Developer"). City and
Developer may each be referred to as a "Party," and collectively the "Parties".
RECITALS
A. Developer is the owner of that certain real property within the Central Rohnert
Park Priority District at 6400 State Farm Drive, of approximately 30 acres in size, identified as
Assessor's Parcel Number 143-051-072, as further described in Exhibit A, attached hereto and
incorporated by this reference (the "Property").
B. City and Developer have entered into a Development Agreement dated as of _
("DA"), which provides, among other things, for; (i) Developer's vested right to
construct a mixed-use development known as Station Avenue, consisting of 140,000 square feet
of retail, 130,000 square feet of office, and approximately 460 residential dwelling units; a 156-
room upscale hotel; a parking garage of 420 parking spaces; and public plazas and parks on the
Property (collectively, the "Project"); and (ii) certain requirements as to Developer's
development and use of the Property and the Project, such as commercial core use requirements,
requirements to provide public parking and park requirements.
C, Section 6.3 of the DA provides that Developer and City will enter into an
agreement to be recorded against the Property setting forth Developeros obligations to (a)
maintain and operate non-Formula Restaurants in key locations in the Project, unless otherwise
approved by the City Manager; (b) restrict Quick Services Restaurants in the Project, unless
otherwise approved by the City Manager; (c) prohibit Drive-Through Business in the Project;
and (d) limit ground floor uses in the Vertical Mixed-Use Buildings to retail businesses unless
otherwise approved by the City Manager, except that ofhce uses allowed under the zoning
regulations for the Project, including real estate and tax preparation, may include a ground floor
entrance and lobby, with main offices to be located on the second floor."
D. Developer and City desire to enter into this Agreement in accordance with the
requirements of Section 6.3 of the DA.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual benefits accruing to the Parties
hereto, and for other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Developer and City on behalf of themselves and their respective heirs, executors,
successors, assigns and each successor in interest hereby covenant and agree as follows:
t. Use Requirements. The following use requirements and restrictions apply to all
development and use of the Property:
a. No use other than a non-Formula Restaurant shall be allowed at the
locations shown in Exhibit B, attached hereto and incorporatcd hcrcin by reference, unless
otherwise approved by the City Manager as provided in Section 2 below. Developer and its
tenants shall exercise good faith efforts to maintain and continuously operate non-Formula
Restaurants at such locations. "Formula Restaurant" means an eating establishment that is
required by contractual or other arrangement to ofler standardized ("formula") menus,
ingredients, food preparation, employee uniforms, interior decor, signage, exterior design or
other characteristics or adopts a name, appearance or food presentation format with ten or more
other establishmcnts across the United States regardless of ownership.
b. No Quick Service Restaurant shall be allowed in the Project, unless
otherwise approved by the City Manager as provided in Section 2 below. Neither Developer nor
its tenants shall maintain or operate any Quick Service Restaurant in the Project, except as
otherwise provided herein. "Quick Service Restaurant'o (a.k.a. Fast Food) means an eating
establishment that specializes in short order or quick service; serves food or beverage products
primarily in paper, plastic or other disposable containers; and delivcrs food or beverage products
in such a manner that customers may remove such products from the restaurant for consumption.
o. Ground floor uses in the Vertical Mixed-Use Buildings must be retail uses
unless otherwise approved by the City Manager as provided in Section 2 below, except that
office uses allowed under the zoning regulations for the Project, including real estate and tax
preparation, may includc a ground floor entrance and lobby, with main offices to be located on
the second floor, Neither Developer nor its tenants shall maintain or operate any use other than
retail on the ground floor of a Vertical Mixed-Use Building in the Project, except as otherwise
provided herein. "Vertical Mixed-Use Building" means a building with one or more floors of
office uses allowed under the zoning regulations for the Project located above ground floor retail
uses (i.e. retail shops, personal services and restaurants).
d. Drive-Through Businesses are prohibited in the Project with no
exceptions. The following use requirements and restrictions apply to all development and use of
the Property. Neither Developer nor its tenants shall maintain or operate any Drive-Through
Business in the Project. "Drive-Through Business" means a *--.
2
2. Approval bv City_Manager. Developer may request an exception to the use
requircments set forth in Sections 1(a), (b) and (c) above by submitting a written request to the
City Manager setting forth the reasons the Developer is requesting the exception. The City
Manager shall consider the request in his or her sole and absolute discretion and issue a written
decision within 30 days of receipt of the request, setting forth the reasons for his or her
determination. The decision of the City Manager shall be final.
3. Mortgagee Protection. No violation or breach of the covenants, conditions,
restrictions, provisions or limitations contained in this Agreement shall defeat or render invalid
or in any way impair the lien or charge of any mortgage, deed of trust or other financing
instrument; provided, however, that any successor of Developer to the Property shall be bound
by such remaining covenants, conditions, restrictions,limitations and provisions, whether such
successor's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or
otherwise.
4. Entire Aqreement. This Agreement, including the Recitals and all Exhibits
(which are hereby incorporated by reference) contains the entire agreement between the Parties
with respect to the subject matter hereof. No waiver, alteration, modification, or termination of
this Agreement shall be valid unless made in writing and signed by the Parties.
5. Authority. Each of the Parties represent and warrant that each has the full right,
power and authority to carry out its obligations under this Agreement. The individuals executing
this Agreement on behalf of the Parties represent and warrant that they have full power and
authority to execute and deliver this Agreement on behalf of such Party.
6. Runs with the Land. All provisions of this Agreement, including the benefits and
burdens, run with the Property and are binding upon the heirs, executors, successors, and assigns
of Devcloper and inure to the benefit of City and its successors and assigns. Each and every
contract, deed or other instrument covering, conveying or otherwise transferring the Property or
any portion thereof or interest therein shall conclusively be held to have been executed, delivered
and accepted subject to this Agreement.
7. No Third Party Beneficiaries. This Agreement shall not be construed or deemed
to be an Agreement for the benefit of any third party or parties, and no third party or parties shall
have any claim or right ofaction hereunder for any cause whatsoever.
L lnterpretation. This Agreement shall be deemed to be jointly prepared by the
Parties, and any ambiguities or unccrtainties herein shall not be construed for or against either of
the Parties. The words "including," "included," "include'i and words of similar import shall be
not be interpreted as words of exclusion but shall instead be interpreted as though followed by
the words "but not limited to" or "without limitation." No waiver by City of any breach or
default of any provision of the Agreement shall be deemed a waiver of any other provision
hereof or of any subsequent breach or default by Developer of the same or any other provision.
The invalidity of any provision of this Agreement as determined by a court of competent
jurisdiction shall in no way affect the validity of any other provision hereof.
J
9. Govemins 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.
10. Notice. Except as otherwise expressly provided herein, all notices and demands
pursuant to this Agreement shall be in writing and delivered in person, by commercial courier or
by first-class certified mail, postage prepaid. Except as otherwise expressly provided herein,
notices shall be considered delivered when personally served, upon delivery if delivered by
commercial courier, or two (2) days after mailing if sent by mail. Notices shall be sent to the
addresses below for the respective Parties; provided, however, that any Party may change its
address for purposes of this Section by giving wriffen notice to the other Parties. These
addresses may be used for service ofprocess:
City:City Clerk
City of Rohnert Park
130 Avram Avenue
Rohnert Park, California 94928
with copy to: Michelle Marchetta Kenyon
City Attorney
City of Rohnert Park
1901 Hanison Street, 9rh Floor
Oakland, California 94612
Developer:Laulima Rohnert Station, LLC
1 I 1 Pine Street, Suite 1315
San Francisco, CA 94014
Attention: David Bouquillon
with copy to: Allen Matkins, et al.
3 Embarcadero Center, l2th Floor
San Francisco, CA 94i 11
Attention: David H. Blackwell
I 1. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which togdther shall constitute but one and the
same instrument.
IN WITNESS WHEREOF, this Agreement has been entered into by and between the
Parties as of the Effective Date.
CITY:
Cify of Rohnert Park, a
California municipal corporation
4
By:
By:
APPROVED AS TO FORM:
By
Darrin W. Jenkins
City Manager
DEVELOPER:
Laulima Rohnert Station, LLC, a
California limited liability company
By:
Name:
Title:
Michelle Marchetta Kenyon
City Attorney
ATTEST:
JoAnne Buergler
City Clerk
5
A notary public or other officer completing this certificate verihes only the identity of the
individual who signed the document to which this certificate is attached, and not the
acc or of that document.
ALL.PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA
COUNTY OF
before me,
Datc Name And'litle Of Omcc.
personally appeared
)
)
On
Name ofSigner(s)
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/shelthey executed the
same in his/her/their authorized capacity(ies), and that by
his/trer/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 Califomia that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
Signilurc of Nol.rry llublic
6
A notary public or other officer completing this certihcate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
or of that document.
ALL.PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA
COTINTY OF
before me,
Dlte Name And'l'itle Of Oficer
personally appeared
)
)
On
None ofSigncr(s)
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
hislher/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 Califomia that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
Signature of Notary Public
7
EXHIBI'I'Ti
MASTER MAINTENANCE AGREEMENT
fto be inserted]
OAK#4812-4530-3661 v3
RECORDTNG Requesrnn Bv
AND WHEN Rpconono MAIL To:
City of Rohnert Park
130 Avram Avenue
Rohnert Park, Califomia 94928
Attention: City Clerk
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(Space for Recorder's Use Only)
Exempt from recording fes per Gov. Code g 27383.
MASTER MAINTENANCE AGREEMENT
(STATTON AVENUE DEVELOPMENT)
APN 143-051-O72
THIS MASTER MAINTENANCE AGREEMENT ("Agreement") is made and entered into this
_ day of 201-, ("Effective Date"), by and between LAULIMA ROHNERT
STATION, LLC, a Califomia limited liability company ("Developer"), and the CITY OF ROHNERT
PARK, a California municipal corporation ("City") with reference to the following facts. City and
Developer may each be referred to as a *Part5i" or collectively as the 'oParties."
RECITALS
A. Developer is the owner of that certain real property located in the City of Rohnert Park,
County of Sonoma, State of California, known as the Station Avenue project and described on Exhibit
"A", attached hereto and incorporated by this reference as if fully set forth herein (the "Property"). The
Properly is being developed as a mixed-use development known as Station Avenue, consisting of 140,000
square feet of retail, 130,000 square feet of office, and approximately 460 residential dwelling units; a
156-room upscale hotel; a parking garage of 420 parking spac€s; and public plazas and parks.
B. In connection with its development of the Properly, the Developer obtained a Final
Development PIan and entered into a Development Agreement with City dated as of _ (the
o'Project Approvals"), which were approved by the City on (City Council
Resolution No. - and City Council Ordinance No.
-),
The Project Approvals require the Developer to
install and maintain certain public and private improvements both on the Properly and along the Property
frontage, which improvements are described and depicted on Exhibit "8" attached hereto and by this
reference made a part hereof (the "Project Improvements" or the "Improvements") and to enter into this
Agreement. The Project Improvements include [Desoiption of BMPS in public right-of-way and onsite
to be insertedl.
C. In addition, the City's National Pollutant Discharge Elimination System ("NPDES")
Municipal Separate Storm Sewer System (*MS4") Permit, Order Number No. 2013-0001-DWQ, issucd
by the State Water Resources Control Board, requires the City to implement and enforce specific
requirements for the construction and maintenance of onsite storm water management facilities/best
management practices (collectively, *BMP") for development, redevelopment, and other applicable
projects with the goal of mitigating impacts to storm water quality and runoff volume discharges into the
MS4. The City of Rohnert Park has elected to seek coverage as a co-perrnittee under the City of Santa
Rosa's MS4 Phase I Permit, Order No. R1-2009-0050. Provisions of Title 15 and other applicable
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sections of the Rohnert Park Municipal Code shall apply to the construction, inspection and maintenance
of BMP Facilities, as defined in Recital D below, and the enforcement of MS4 Permit requirements.
D. On 20_, the City approved Developer's Improvement Plans and a
Final Standard Urban Stormwater Mitigation Plan ("SUSMP") (collectively, "Plan") for the Property
which include provisions for the construction and maintenance of BMP facilities as part of the
Improvements on the Property (the "BMP Facilities") by Developer. The BMP Facilities are described in
Exhibit "C" attached hereto and by this reference made a part hereof and include [Description of BMPS
in public right-of-way and onsite to be insertedl.
E. The City and Developer will enter into a Recycled Water Use Agreement in substantial
conformance with Exhibit o'D", Recycled Water Use Agreement, for the purpose of providing recycled
water for irrigation of landscaping to be installed by Developer as part of the Improvements.
F. The Developer recognizes that the City's approval of the Project Approvals is based on
the Developer's commitment to the long-term maintenance, repair, care and, if and when necessary,
replacement of the Improvements and the BMP Facilities, and that the Project Approvals would not have
been approved without the assurance that this Agreement would be executed by the Developer.
H. 1'he City and the .Developer desire to enter into an agreement pursuant to which the
Developer will maintain the Improvements within the Maintenance Area as both are depicted on
Exhibit "B", as well as the BMP Facilities shown on Exhibit "C".
AGREEMENT
NOW, THEREFORE, the City and the Developer (together, the "Parties") hereby agree as
follows:
. 1. PURPOSE OF AGREEMENT. The purpose of this Agreement is to assure the
maintenance, periodic inspection, repair, safe operation and, if and when necessary, replacement of the
Improvsments by the Developer at its expense in accordance with the standards, including the
Maintcnance Standards (defined in Section 4 below), set forth herein and the construction, inspection and
maintenance of the BMP Facilities.
Z. IMPROVEMENTS AS A BENEFIT. The Developer agrees that the Improvements will
materially benefit the Property arrd that Developer's maintenance, repair, safe operation and, if and when
necessary, replacement thereof in accordance with this Agreement is necessary for approval of the
Developer's Project Approvals.
3. DEVELOPER'S RESPONSIBILITIES. Developer, at its sole expense, shall construct,
install, maintain, safely operate, periodically inspect, repair, resurface and, if and when necessary, replace
the Improvements identified in Exhibit "B"o as well as perform all necessary service on maintenance
equipment, in order to ensure the attractive and healthy appearance of the landscaping, the attractive
appearance, condition and safety of any and all structures, and the efficient operation of all of the
Improvements, including paying the electrical expense of operating any pedestrian light and inigation
controller, said electrical expensc to be paid by the Developer upon the direct receipt of invoices for
electrical service from Pacific Gas and Electric, all in accordance with the Maintenance Standards
described in Section 4 below, and industry and City standards applicable to similar improvements.
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4. MAINTENANCE STANDARDS. The Developer and its maintenance staff, contractors
and subcontractors shall comply with the following standards (collectively, "Maintenance Standards") in
connection with the required maintenance of the Improvements:
a. The Improvements shall be maintained in compliance with the Plan and Project
Approvals, in good condition, and in accordance with the custom and practice generally applicable to
public rights-of-way within the City of Rohnert Park.
b. Landscape maintenance shall include, but not be limited to: watering/irrigation;
fertilization; periodic trimming, mowing, and/or edging of grass and lawn areas; pruning of hees, shrubs,
and other vegetation; trimming and shaping of trees and shrubs to maintain a healthy, natural appearance,
safe road conditions and visibility, and irrigation coverage; removal and replacement, as needed, of all
plant materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and
staking for supporl of trees.
c. Clean-up maintenance shall include, but not be limited to: maintenance of all
sidewalks, paths and other paved areas in clean and weed-free condition; maintenance of all such areas
clear of dirt, mud, trash, debris or other matter which is unsafe or unsightly; removal of all trash, litter and
other debris from improvements and landscaping prior to mowing; clearance and cleaning of all areas
maintained prior to the end of the day on which the maintenance operations are performed to ensure that
all cuttings, weeds, leaves and other debris are properly disposed of by maintenance workers.
d. All maintenance work shall be performed in a good and workman like manner
and shall conform to all applicable federal and state Occupation Safety and Health Act standards and
regulations for the performance of maintenance.
e. Any and all chemicals, unhcalthful substances, and pesticides used in and during
maintenance shall be applied in strict accordance with all governmental requirements. Precautionary
measures shall be employed recognizing that all areas are open to public access.
f. Any and all requirements for use of recycled water under the Recycled Water
Use Agreement.
5. CITY'S RIGIIT TO PERFORM MAINTENANCE. In the event that the Developer fails
to repair, periodically inspect, maintain in good working condition, care for and, if and when necessary,
replace the Improvements on and about the Property in the manner set forth herein, as solely determined
by City, the City may enter upon the Property and take whatever steps it deems reasonably necessary to
main(ain, repair, periodically inspect, care for, and replace such Improvements, or to contract for the
correction of such deficiencies, after written notice to the Developer. By executing this Agreement,
Developer knowingly and willfully provides consent to thd City to enter on the Property and perform such
maintenance work as it deems necessary. [t is expressly understood that the City is under no obligation to
maintain or rcpair the Improvements, and in no event shall this Agreement be construed to impose such
an obligation on the City.
a. NOTICE TO DEVELOPER. Prior to taking any such corrective action, the City
agrees to notify the Developer in writing if the condition of said Improvements does not conform to the
standards and requirements set forth herein, including without limitation the Maintenance Standards, and
to specifu the deficiencies,and the actions required to be taken by the Developer to cure the deficiencies.
Upon notification of any deficiency, the Developer shall have thifty (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
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is urgent and relates to the public health and safety, then the Developer shall have twenty-four (24) hours
to rectify the problem.
b. Lien for Costs of Required Maintenance. In the event that Developer fails to
correct, remedy, or cure or has not oommenced correcting, remedying or curing such deficiency after
notification and after expiration of any applicable cure period, then the City may enter upon the Property
and maintain, repair, care for and, if and when necessary, replace such Improvements at the Developer's
expense. The Developer agrees to reimburse the City within 60 days of the date of a notice identifing all
charges and costs incured by the City for such maintenance, repair and replacement work. Until so paid,
the City shall have a lien on the Site for the amount of such charges or costs, which lien shall be perfected
by the recordation of a "Notice of Claim of Lien" against the Properly, provided City shall not record a
Notice of Claim of Lien unless and until Developer fails to reimburse the City within 60 days of the
notice identifying all charges and costs incuned by the City for such work. This lien shall affect all
parcels jointly if portions of the Property have been sold. Any lien in favor of the City created or claimed
hereunder is expressly made subject and subordinate to any mortgage or dced of trust made in good faith
and for value, recorded as of the date of the recordation of the Notice of Claim of Lien, and no such lien
shall in any way defeat, invalidate, or impair the obligation or priority of any such mortgage or deed of
trust, unless the mortgagee or beneficiary thereunder expressly subordinates its interest, ofrecord, to such
lien. No lien in favor of the City created or claimed hereunder shall in any way defeat, invalidate, or
impair the obligation or priority of any lease, sublease or easement unless such instrument is expressly
subordinated to such lien.
c. Legal Action. The City may bring legal action to collect the sums due as the
result of expending public monies to maintain, repair and, if and when n€cessary, replace any
Improvements which are the responsibility of the Developer as provided herein. The Developer agrees
that if the City brings legal action to enforce its rights under this Section 5, the Developer shall pay the
City all costs incurred by it, including reasonable attorneys' fees and court costs, together with interest
from the date the City provided notice under Section 5.a, at the rate of seven percent (7%) per annum.
d. Additional Remedies. The Developer acknowledges and agrees that the City
may also pursue any and all othcr remedies available in law or equity in the event of a breach of the
Developer's obligations and agreements set forth herein.
e. lntention ofeity. Nothing in this Section 5 shall be construed, either expressly
or by implication, as indicating an intention of the City to exercise dominion or control over the
lmprovements.
6. BMP FACILITIES. Developer hereby covenants, agrees and declares as follows:
'a. Developer shall, at its sole cost and expense, construct, inspect, and maintain the
BMP Facilities, as shown on Exhibit !'C" in accordance with the Plan and the SUSMP.
b. Maintenance associated with [Description of BMPS in public right-of-way to be
inserted]: removal of trash, weeds, debris and sediment; trimming, mowing, or replacement of
vegetation; repair of ditch erosion; and periodic replacement of improvements as may be needed.
c. Maintenance associated with the [Description of BMPS onsite to be inserted], but
not be limited to: watering/irrigation; fertilization; periodic trimming, mowing, and/or edging of
vegetation; removal and replacement, as needed, of all plant materials; and control of weeds.
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d. The Developer shalI submit to the City inspection reports as required by the Plan
and SUSMP. The Developer shall complete maintenance or repairs noted in the inspection reports.
e. In the event Developer fails to maintain the BMP Facilities in good working
condition as solely determined by the City in its reasonable discretion, the City may enter upon the
Property and take whatever steps it deems reasonably ncccssary to maintain and/or make in good working
condition, such BMP Facilities. It is expressly understood that the City is under no obligation to maintain
or repair the BMP Facilities, and in no event shall this Agreement be construed to imposc such an
obligation on the City.
f. In the event that the City performs work of any nature, or expends any funds in
the performance of such work for labor, use of equipment, supplies, materials, or the like, due to failure of
the Landowner to perform its maintenance obligations under this Agreement, as solely determined by
City in its reasonable discretion, Developer shall reimburse the City within sixty (60) days of receipt of
notice for all costs incurred by the City to undertake such work, Costs shall include, but are not limited
to, the actual cost of construction, maintenance and/or repair, and administrative costs directly related to
such work.
7. RECYCLED WATER USE. Developer agrees to perform all requirements and
obligations under the Recycled Water Usc Agreement.
8. NO IMPAIRMENT OF LIEN. No violation or breach of the agreements, conditions,
restrictions, provisions or limitations contained in this Agreement shall defeat or render invalid or in any
way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument;
provided, however, that any successor of Developer to the Site or any portion thereof shall be bound by
such agreements, conditions, restrictions, limitations and provisions, whether such successor's title was
acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
9. ENCROACHMENT PliRMll": RICI-l'f O[ FYI'LY. The Developer and the City
acknowledge that, to the extent that the Improvements are located within the City rights-of-way, the
Developer shall bbtain a single on-going revocable encroachment permit from the City in order for the
Developer to perform its obligations under this Agreement. Such an encroachment permit shall set forth
the terms and provisions upon which the Developer has a right to enter onto such rights-of-way in order to
perform maintenance, inspection, repair and, if and when necessary, replacement services (collectively,
"Maintenance Serviccs"). The encroachment permit shall be issued on the terms and conditions of this
Agreement.
The Developer shall obtain and deliver to the City, at no cost to the City, certificates of commercial
general liability insurance which indicate that the City, its elective and appointive boards, commissions,
officers, agents and employees are covered as additional insureds under all insurance policies maintained
for performance of the Maintenance Services and other activities by (i) the Developer or (ii) any
contractor or subcontractor directly or indirectly employed by the Developer to perform any Maintenance
Services or other Activities. Each of these policies shall also provide that no cancellation, major change
in coverage, or expiration may be affected by the insurance company or the insured during the time of
performance of the Maintenance Services and other Activities, without first giving to the City thirty (30)
days' written notice prior to the effective date of such cancellation or change in coverage. The Developer
shall not permit any contractor or subcontractor to commence or continue performing Maintenance
Services or other Activities until the certificates or any substitute certificates have been approved by the
City's Risk Manager.
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10. VIOLATION. In addition to any remedies outline in the City's Stormwater Permit and
the Recycled Water Use Agreement, any violation of this Agreement, the Plan, SUSMP, or Recycled
Water Use Agreement by Developer shall be deemed a public nuisance under Chapter 1.24, Nuisance
Abatement, of the Rohnert Park Municipal Code and City shall be entitled to the remcdies available to it
under Chapter 1.24, in addition to the remedies available to it under Chapters l.16 and 1.25. The
remedies identified herein shall be in addition to and cumulative of all other remedies, criminal or civil,
which may be pursued by the City.
il. P_ERMITS AND APPROVAH. To the extent that performance of the Maintenance
Services or other Activities requires permits or govemmental approvals, the Developer shall, at its sole
cost and expense, obtain such permits and approvals. 'fhe City shall issue encroachment permits, from
time to time, on the terms set forth in Section I above.
12. TERM. This Agreement shall commence immediately upon the Effective Date and shall
continue in perpetuity until and unless terminated, with or without cause, by the City upon thirty (30)
days written notice to Developer.
13. iNLEMNIEICATION. Developer shall, to the fullest extent permitted by law,
indemniff, defend and hold harmless the City and its Council, boards, offices, commissions, officials,
agents and employees, from and against any liability, (including, but not limited to, liability for claims,
suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, damages,
losses, expenses or costs of any kind, including reasonable attorneys' fees, that may be asserted by any
person or entity, including Developer, whether actual, alleged or threatened, interest, defense costs, and
expert witness feos), where the same rslates to, or arises out of, any work performed or services provided
under'this Agreement by the Developer, or the Developer's contractors, subcontractors, agents or
employees, including, but not limited to, the performance of the Maintenance Services or other Activities,
excepting only that resulting from the sole, active negligence or intentional misconduct of the City, its
employees, officials, or agents. Developer's duty to defend and hold harmless, as set forth herein, shall
include the duty to defend as set forth in California Civil Code Section 2778. This indemnification
obligation shall survive termination of this Agreement and is not limited in any way by any limitation on
the amount or type of damages or compensation payable to or for the Developer or its agents under
insurance policies or workers' compensation acts, disability benefits acts or other employees' benefits
acts. If any judgment or claim against the City, its officials, agents, or employees, shall be entered,
Developer shall pay all cost and expenses in connection therewith.
14. D_EEAULT. The failure to maintain the Improvements will constitute an event of default.
Upon such event of default, the City shall provide written notice to the Developer. Upon receipt of the
written notice, the Developer shall have thirly (30) days to remedy such event of default (or such longer
period of time as may reasonably be required, provided that the Developer shall commence to remedy
such default within thirfy (30) days period and thereafter diligently prosecute such remedy to completion).
If the Developer fails to remedy the event of default within the prescribed time period, the City shall have
the right to do all work necessary to remedy the event of default and charge the Developer actual costs
incurred by the City for such work.
15. ASSIGNMENT BYCITY. The City shall have the right at its option to assign its rights
and obligations under this Agreement to another public agency without consent of the Developer.
16. AGREEMENT ATTACHES.TO LAND AND BINDS DEVELOPER'S SUCCEL$ORS
AND ASSICNS. This Agreement attaches to and runs with the Property in perpetuity, and shall be
recorded against the Property. This Agreement binds the assigns and successors-in-interest of the
Developer. The City and its succgssors and assigns, in the event of any breach of this Agreement, shall
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have the right to exercise all of the rights and remedies, and to maintain any actions at law or suits in
equity or other proper proceedings against the Developer or its permitted successors and assigns to
enforce the curing ofsuch breach.
17. ASSIGNMENT BY DEVELOPER. The Developer may assign its obligations under this
Agreement only with the prior written approval of the City. In connection with any such assignment, the
Developer and its assignee shall execute and deliver to the City a written assignment and assumption
agreement in a fonn acoeptable to the City Attorney
18, NOTICES. Any notices relating to this Agreement shall be given in writing and shall be
deemed sufficiently given and served for all purposes when delivered personally or by generally
recognized overnight courier service, or three (3) days after deposit in the United States mail, certified or
registered, return receipt requested, with postage prepaid, addressed as follows:
City City Clerk
City of Rohnert Park
130 Avram Avenue
Rohnert Park, Califomia 94928
with copy to: Michelle Marchetta Kcnyon
City Attorney
City of Rohnert Park
1901 Hanison Street, 9th Floor
Oakland, California 94612
Developer Laulima Rohnert Station, LLC
1ll Pine Street, Suite 1315
San Francisco, CA 94014
Attention: David Bouquillon
with copy to Allen Matkins, et al.
3 Embarcadero Center, 12th Floor
San Francisco, CA 94111
Attention: David H. Blackwell
I9. MISCELLANEOUS
a. Entire Agreement. Amendment$ This Agreement contains the entire
understanding and agreement of the parties. This Agreement may be altered, amended or modified only
by an instrument in writing, executed by the Parties to this Agreement.
b. Paragraph Headings. Paragraph headings as used herein are for convenience
only and shall not be deemed to be a part of such paragraphs and shall not be construed to change the
meaning hereof.
c, Governing Law. This Agreement shall be construed and governed in accordance
with the laws of the State of California. Venue shall be the County of Sonoma.
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d. Counterparts. This Agreement may be executed in any number of counterparts
which together shall constitute the contract of the Parties.
e. Exhibits. Any and all exhibits and schedules attached or to be attached hereto are
hereby incorporated and made a part of the Agreement by reference.
f. Severability. If any term, provision, covenant or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions shall remain in full force and effect.
g. Authoritv. Each person 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 ifsuch 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.
h. No Agency Relationship. Neither the Developer nor any of the Developer's
agents, contractors or subcontractors are or shall be considered to be agents of City in connection with the
performance of any of the Developer's obligations under this Agreement. Nor shall City and Developer,
be deemed to have become a partner of each other in the conduct of their respective business or otherwise
ajoint venture.
i. Attomeys' F'ees and Cgsls. Either party may bring a lawsuit to enforce or require
performance of the terms of this Agreement, and the prevailing parly in such suit or proceeding shall be
entitled to recover from the other parly's reasonable costs and expenses, including attorneys' fees.
ISIGNATURES ON FOLLOWING PAGEJ
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first stated
above.
DEVILOPER
LAULIMA ROIINERT STATION, LLC,
a California limited liability company
By:
a
[Signature musl be notarizedJ
CITY
CITY OF'ROHNERT PARK
A municipal corporation
Darrin Jenkins, City Manager
Authorized by Minute Order adopted by the Rohnert Park City Council on January lA,2017
[Signature must be notarizedJ
APPROVED AS TO FORM:
Michelle Marchetta Kenyon, City Attomey
ATTEST:
Jo Anne Buergler, City Clerk
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EXHIBIT F
PARTIAL ASSTGNMENT AND ASSUMPTION OF
DEVELOPMENT AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Attention:
(Space Above For Recorder's Use)
PARTIAL ASSIGNMENT AND ASSUMPTION
OF'DEVELOPMENT AGREEMENT AND CONSENT OF CITY
TIIIS PARTIAL ASSTGNMENT AND ASSUMPTION OF DEVELOPMENT
AGREEMENT AND CONSENT OF CITY (this ''Assignment") is made effective as of
20_(the "Effective Date"), by and between LAULIMA ROHNERT
STATION, LLC, aCalifomia limited liability company ("Assignor") and
a
("Assignee"), with reference to the following:
RECITALS
A. That certain real property described in Exhibit A. attached hereto and
incorporated herein by reference, (the "Property"), is subject to that certain development
agreement entered by and between the City and Assignor, which was approved pursuant to
Ordinance No and recorded in the Official Records as Document
No. _ (the "Development Agreement")
B. Assignor has now entered into an with
Assignee,datedasof-(the..PurchaseAgreement''),pursuanttowhich'among
other things, Assignor has agreed to transfer and convey to Assignee all of Assignor's rights in
and to the portion of the Property desuibed in Exhibit B attached hereto (the "Assigned
Property"), and cause Assignor to assign to Assignee certain rights, title and interest in and to
thc Development Agreement to the extent relating to the Property, as described below.
Development of
-
on the Assigned Property in accordance with the
Development Agrecment and entitlements referred to therein is referred to herein as the
"Project." That portion of the Property that is not the Assigned Property or has been otherwise
assigned by Assignor in accordance with the Development Agreement is referred to hcrein as the
"Remaining Property."
OAK#48124530-3661 v3
NOW, THEREFORE, Assignor and Assignee agree as follows:
1. Assiqnmcnt, For and in consideration of the mutual covenants and agreements
contained in this Assignment, and other good and valuable consideration, the receipt and
adequacy of which is acknowledged, Assignor assigns to Assignee only the following rights and
obligations (refened to herein as the "Assigned Rights and Obligations") as these pertain to the
Assigned Property:
(a) [insert applicable sections of the DA]; and
(b) [insert applicable sections of the DA], as to the Assigned Property_.
Assignee hereby acknowledges that the Assigned Rights and Obligations are subject to
the timing and phasing of thc development of the Property as set fonh in the Development
Agreement.
2. RemaiUing Obligations. Assignor acknowledges and agrees that it remains
subject to all rights and obligations set forth in thc Development Agreement, except the Assigned
Rights and Obligations expressly set forth in Section 1 above (the "Remaining Rights and
Obligations"). The Remaining Rights and Obligations include without limitation the following:
(a) Sections [insert applicable sections of the DA]; and
(b) Sections [insert applicable sections of the DA], as to the Remaining
Property.
3. Acceptance and Assumption. Assignee hereby accepts the assignment of the
Assigned Rights and Obligations from Assignor, and assumes and agrees to perform all of the
Assigned Rights and Obligations.
4. I?urther Assurances. Assignor hereby covenants that it will, at any time and from
time to time upon written request therefor, execute and deliver to Assignee, its nominees,
successors and/or assigns, any new or confirmatory instruments and do and perform any other
acts which Assignee or its nominees, successors and/or assigns may requcst in order to fully
transfer possession and control of, and protect the rights of Assignee and its successors andlor
assigns in, all the rights, benefits and privileges intended to be transferred and assigned hereby.
Assignee hereby covenants that it will, at any time and from time to time upon written request
therefor, execute and deliver to Assignor, its nominees, successors and/or assigns, any new or
confirmatory instruments and do and perform any other acts which Assignor or its nominees,
successors and/or assigns may request in order to fully confirm and vest in Assignor and its
successors and/or assigns in, all the obligations, rights, benehts and privilcgcs intended to be
transferred by the acceptance and assumption herein.
5. Successors. This Assignment shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
OAK #4812-4530-3651 v3
6. Countemarts. This Assignment may be executed in counterparts, each of which
shall be deemed an original, but all of which, taken together, shall constitute one and the same
instrument.
7. Amendment. This Assignment may only be amended or modified by a written
instrument executed by all of the partics hereto with the prior written consent of the City of
Rohnert Park.
8. Governing Law. The validity, interpretation and perforrnance of this Assignment
shall be controlled by and construed under the laws of the State of Califomia.
9. Attorneys' Fees. Should any dispute arise between the parties hereto or their legal
representatives, successors or assigns concerning any provision of this Assignment or the rights
and duties of any person in relation thereto, the party prcvailing in such dispute shall be entitled,
in addition to such other relief that may be granted, to receive from the other party all costs and
expenses, including reasonable attorneys' fees, incurred by the prevailing party in connection
with such dispute.
10. Entire Agreement, This Assignment, together with the Purchase Agreement,
constitutes the entire agreement among the parties hereto with respect to the subject mattcr
hereo{ and superscdcs all prior understandings or agreements. In the event of any conflict
between this Assignment and the Purchase Agreement, the terms of the Purchase Agreement shall
govern and control.
I 1. Severabilit-v. if any term, covenant, condition or provision of this Assignment, or
the application thereof to any person or circumstance, shall to any extent be held by a court of
competent jurisdiction or otherwise by law rendered invalid, void or unenforceable, the
remainder of the terms, covenants, conditions or provisions of this Assignment, or the
application thereof to any person or circumstance, shall remain in full force and effect and shall
in no way be affected, impaired or invalidated thereby.
12. Notices. All notices shall be in writing, and shall be given in the manner
prescribed by Section ll.9 of the Development Agreement. Pursuant to Section 11.9 of the
Development Agreement, the address for Assignee is: [to be inserted]
14. Authority. Each individual executing this Assignment on behalf of a corporation
or other legal entity represents and warrants that: (a) he or she is duly authorized to cxecute and
deliver this Assignment on behalf of said corporation or other legal entity in accordance with and
without violating the provisions of its governing documents, and (b) this Assignment is binding
upon and enforceable against said corporation or other legal entity in accordance with its terms.
Any entity signing this Assignment on behalf of a corporation or other legal entity hereby
represents and warrants in its own capacity that it has full authority to do so on behalf of the
corporation or other legal entity.
IN WITNESS WHEREOF, the parties have entered into this Assignment as of the
Effective Date.
OAK #48124530-3661 v3
ASSIGNOR:LAULIMA ROHNERT STATION, LLC,
a California limited liability company
Name:
Its:
ASSIGNEE;
By
Name
Its:
CONSENT OF CITY
The City hereby consents to the foregoing Partial Assignment and Assumption of
Development Agreement, pursuant to Section 10.1 of the Development Agreement.
CITY:
City of Rohnert Park, a municipal corporation
By:
City Manager
Approved as to Form:
By:
CityAttomey
Attest:
By:
City Clerk
a
I
OAK #48124530-3661 v3
[The applicable Exhibit A and B will be inserted into execution versionJ
OAKfl48l2-4530-3661 v3