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2018/03/22 Planning Commission Agenda Packet14HYfT jai*.; �ne/r4r 4�/4•^ City of Rohnert Park Planning Commission AGENDA Thursday, March 22, 2018 6:00 P.M. 130 Avram Avenue, Rohnert Park To arty Member of the ,—Bence Dexitigg to Address the Pltrrrnittg Conurrission: For public comment on items listed or not listed on the agenda, or on agenda items if unable to speak at the scheduled time, you may do so upon recognition from the Chairperson. PLEASE FILL OUT A SPEAKER CARD PRIOR TO SPEAKING. 1. 2. 3. 4. 5. 6. 7. 8. CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL (Adams Blanquie Borba Giudice Haydon__) DECLARATION OF ABSTENTION ACKNOWLEDGEMENT OF POSTING OF AGENDA — Agenda has been posted in three public places: Community Center, Public Safety Building and City Hall. PUBLIC COMMENT - Persons who wish to speak to the Commission regarding an item that is not on the agenda may do so at this time. CONSENT CALENDAR - ADOPTION OF MINUTES 7.1 Approval of the Draft Minutes of the Planning Commission meeting of December 14, 2017, January 11, 2018, and January 25, 2018 AGENDA ITEMS 8.1 PUBLIC HEARING — SITE PLAN AND ARCHITECTURAL REVIEW TIME EXTENSION - File No. PLTX18-0001— Eric Price/Lowney Architecture - Consideration of Resolution No. 2018-21 approving a one-year extension of the approvals of the Site Plan and Architectural Review for the Bella Creek/Avram House project located at 100 Avram Avenue. CEQA: A consistency review was completed for this project that demonstrates that it is consistent with the PDA EIR. Impacts associated with the project are consistent with those previously identified and analyzed and the implementation of applicable mitigation measures, as identified throughout the consistency analysis, would ensure that all project -related impacts remain less than significant. To ensure the effective implementation and enforcement of applicable PDA EIR mitigation measures, the project is required to adhere to the MMRP for the PDA EIR. 8.2 PUBLIC HEARING — DEVELOPMENT AGREEMENT AMENDMENT - File No. PLDA17-0001 — Eric Reid for SOMO Village — Consideration of Resolution No. 2018-22 recommending City Council approval of the proposed third amendment to the Development Agreement by and among the city of Rohnert Park and SOMO Village LLC and SOMO Village Commercial LLC. CEQA: The City Council has certified the Final EIR for the Project (including the Development Agreement), and adopted the associated CEQA Findings, Statement of Overriding= Considerations, and the Mitigation Monitoring and Reporting Program, and, as amended by the proposed Third Amendment to Development Agreement, there are no substantial changes proposed in the Project, substantial changes with respect to the circumstances under which the Project will be undertaken or new information of substantial importance of the kind that would require additional environmental review pursuant to Section 15162 of the CEQA Guidelines. 9. ITEMS FROM THE PLANNING COMMISSION 10. ITEMS FROM THE DEVELOPMENT SERVICE STAFF 11. ADJOURNMENT Appeals of any decisions made tonight must be received by the Planning Division within 10 days and no later than S: 00 p.m. on April 2, 2018 NOTE: If you challenge the nature of the proposed action in court, you may be limited to raising only those issues you or someone else raised at public hearing(s) described in this Agenda, or in written correspondence delivered to the City of Rohnert Park at, or prior to the public hearing(s). Disabled Accommodation: In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting please call (707) 588-2236. Notification 72 hours in advance of the meeting will enable the city to make reasonable arrangements to ensure accessibility to the meeting. (28 CFR 3 5.102.3 5.104 AD Title I11) CERTIFICATION OF POSTING OF AGENDA I, Kelsey Bracewell, Development Services Office Assistant for the City of Rohnert Park, declare that the foregoing notice and agenda for the March 22, 2018, Planning Commission Meeting of the City of Rohnert Park was posted and available for review on March 16, 2018, at Rohnert Park City Hall, 130 Avram Avenue, Rohnert Park, California 94928. Theagenda is available on the City of Rohnert Park's web site at www.rpcity.org_ Signed this 16th day of March, 2018 at Rohnert Park, California. Rusf>ixxr �'aw c9: fro ���11f'U M1tiSh City of Rohnert Park Planning Commission Report DATE: March 22, 2018 ITEM NO: 8.1 AGENDA TITLE: PLTX18-0001, Renewal of the Bella Creek (Avram House) Site Plan and Architectural Review for a 90 unit apartment complex ENTITLEMENTS: Site Plan and Architectural Review LOCATION: 100 Avram Avenue GP / ZONING: High Density Residential / DT-RH Downtown High Density Residential APPLICANT: Eric Price, Lowney Architecture RECOMMENDATION Staff recommends approval of a one year extension for the Site Plan and Architectural Review of the Bella Creek Apartments (formerly called Avram House apartments), approved for 90 apartments in a five building configuration at the northeast corner of Commerce Boulevard and Avram Avenue. SUMMARY On March 9, 2017, the Planning Commission approved the Site Plan and Architectural Review for the Avram House apartments through Resolution No. 2017-08. Site Plan and Architectural Reviews expire after one year unless renewed by the Planning Commission. BACKGROUND This is the former site of the Rohnert Park City Hall and two adjacent office buildings. All three structures were demolished in 2016. The site is designated for high density residential development by the City's general plan and zoning ordinance and is located within the Central Rohnert Park Priority Development Area (PDA). The PDA was adopted in March 2016, and is intended to facilitate the development of infill sites that are supportive of a mixed-use environment and transit. As approved, the project will include 90 apartments spread between five buildings, seven apartments of which will be affordable at the Very Low Income level. On Page 1 March 9, 2017, the Planning Commission approved the Site Plan and Architectural Review for the project. General Plan and Zoning Designation The site is designated for high density residential development by the City's general plan and zoning ordinance and is located within the PDA. ANALYSIS The applicant applied for a one-year time extension for the Site Plan and Architectural Review on February 1, 2018. The application was received prior to the expiration date and this matter is being brought before the Planning Commission for its consideration. There have been no significant changes to the approved plans. Pursuant to Zoning Ordinance Section 17.25.035, regarding Lapse of Approval/Renewal for Site Plan and Architectural Review approvals: A. A Site Plan and Architectural Review approval shall lapse one year after the date of final approval or at an alternative date specific at the time of approval, unless 1. A building permit has been issued and construction has diligently commenced; or 2. A Certificate of Occupancy has been issued; or 3. The use is established; or 4. The Site Plan and Architectural Review approval is renewed in accordance with subsection B below. 5. The project is a residential development that does not require the approval of a tentative subdivision map, or otherwise not vested through a development agreement with the city, then the approval shall expire after a twenty -four-month period, unless extended for special circumstances by the city Council. B. A Site Plan and Architectural Review approval may be renewed for an additional period of one year provided that to the expiration date, an application for renewal is filed with the Planning Commission. The Commission shall not deny the renewal request without first holding a Public Hearing and making findings supporting the reason for denial. If the Phinning Commission denies the renewal request, the applicant shall have ten calendar days to appeal the decision to the City Council as set forth in Chapter 17.25 Article XII. ENVIRONMENTAL DETERMINATION As detailed in the March 9, 2017 Planning Commission report, the City of Rohnert Park approved the Central Rohnert Park Priority Development Area (PDA) Plan in March of 2016. The intent of the PDA Plan is to support transit -oriented and infill development in existing communities within the City, particularly adjacent to transit. In accordance with the California Environmental Quality Act (CEQA), the City prepared an EIR to analyze the impacts associated with implementation of the PDA Plan on a program -level basis. The PDA EIR was also certified in March 2016. A consistency review was completed for this project that demonstrates that it is consistent with the PDA EIR. Impacts associated with the project are consistent with those previously identified and analyzed and the implementation of applicable mitigation measures, as identified throughout Page 2 the consistency analysis, would ensure that all project -related impacts remain less than significant. To ensure the effective implementation and enforcement of applicable PDA EIR mitigation measures, the project is required to adhere to the MMRP for the PDA EIR. Attachments 1. Resolution 2018-21 Approving an Extension of the Site Plan and Architectural Review of the Avram House/Bella Creek project 2. Resolution 2017-08 Approving the Site Plan and Architecture Review for Avram House Apartments at 100 Avram Avenue 3. February 15, 2018 Letter from Eric Price 4. Project Plans APPRO LS: ' 6 Av Zac si r, anner III Dat/e J le / Jef i n e , Planning Manager DRA to Page 3 PLANNING COMMISSION RESOLUTION NO. 2018-21 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ROHNERT PARK, CALIFORNIA APPROVING A ONE-YEAR EXTENSION OF THE APPROVALS OF THE SITE PLAN AND ARCHITECTURAL REVIEW FOR THE BELLA CREEK/AVRAM HOUSE PROJECT LOCATED AT 100 AVRAM AVENUE WHEREAS, the City processed the applications for the Site Plan and Architectural Review (Planning Application No. PLSU16-0001) for the Avram House Project located at 100 Avram Avenue ("Project") in the time and manner prescribed by State and local law; and WHEREAS, on March 9, 2017, the Planning Commission of the City of Rohnert Park approved the Site Plan and Architectural Review of the Avram House Project; and WHEREAS, the project has subsequently been renamed Bella Creek; and WHEREAS, the applicant, Eric Price of Lowney Architecture has submitted an application for a one-year time extension of the approval for Site Plan and Architectural Review; and WHEREAS, on March 22, 2018, the Planning Commission held a public meeting at which time interested persons had an opportunity to testify either in support or opposition to the proposed time extension for the Site Plan and Architectural Review; and WHEREAS, the Planning Commission, using their independent judgment, reviewed the time extension request and all evidence in the record related to the proposed project including the staff report, public testimony, and all evidence presented both orally and in writing; and NOW, THEREFORE, BE IT RESOLVED that the Planning Commission of the City of Rohnert Park, California, hereby makes the following findings: A. The Planning Commission, at a public hearing on March 22, 2018, reviewed the applicant's request for a one-year extension of the approvals of the Site Plan and Architectural Review for the Project, and all evidence in the record related to the Project including the staff report, public testimony, and all evidence presented both orally and in writing. B. The Planning Commission finds that a one-year extension of the approvals of the Site Plan and Architectural Review for the Project is consistent with the approved plans and with the Rohnert Park Municipal Code Section 17.25.035.B. C. The Planning Commission finds that a one-year extension of the approvals of the Site Plan and Architectural Review does not necessitate further environmental review of the Project under CEQA, because a consistency review was completed at the original time of approval that demonstrates that the project is consistent with the PDA EIR. NOW THEREFORE BE IT FURTHER RESOLVED, that the Planning Commission does hereby approve the applicant's request for a one-year extension of the approvals of the Site Plan and Architectural Review for the Bella Creek/Avram House Project located at 100 Avram Avenue subject to the following conditions: 1. The applicant shall comply with all applicable sections of the City of Rohnert Park Municipal Code. 2. The Project remains subject to the conditions included in Exhibit 2 of Planning Commission Reso. 2017-08. 3. The applicant shall secure all necessary permits and clearances from the Rohnert Park Building and Engineering Departments prior to commencement of construction. DULY AND REGULARLY ADOPTED on this 22nd day of March, 2018 by the City of Rohnert Park Planning Commission by the following vote: ADAMS AYES: BLANQUIE NOES: ABSENT: BORBA _ , GIUDICE ABSTAIN: HAYDON Chairperson, City of Rohnert Park Planning Commission Attest: _ Susan Azevedo, Recording Secretary PLANNING COMMMISSION RESOLUTION NO. 2017-08 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ROHNERT PARK, CALIFORNIA, APPROVING A SITE PLAN AND ARCHITECTURAL REVIEW FOR A MULTI -FAMILY PROJECT LOCATED AT THE NORTHEAST CORNER OF COMMERCE BOULEVARD AND AVRAM AVENUE (Barney Aldridge, Avram Partners, LLC) WHEREAS, the applicant, Barney Aldridge, of Avram Partners, LLC, filed Planning Application No. PLSU16-0001 for a Site Plan and Architectural Review to allow a multi -family project at the northeast corner of Commerce Boulevard and Avram Avenue (see Exhibit 1), in accordance with the City of Rohnert Park Municipal Code (RPMC); WHEREAS, the subject properties are currently owned by the City and under contract to be sold to the applicant. A purchase and sale agreement has been entered into between the City and applicant for the purchase of the property, with a purchase price of $1.4 million, and close of escrow scheduled for April 12, 2017; WHEREAS, Planning Application No. PLSU 16-0001 was processed in the time and manner prescribed by state and local law; WHEREAS, the applicant applied for an affordable housing density bonus per RPMC § 17.07.H and Gov. Code §65915 (PLAP17-0001), to allow for a 32.5% density bonus, a building setback concession, and mandated parking reductions in exchange for the creation of seven (7) affordable units designated for the Very Low Income affordability level; WHEREAS, an administrative permit for the affordable housing density bonus was granted on February 24, 2017, allowing a 32.5% density bonus, a building setback concession, and mandated parking reductions in exchange for the creation of seven (7) affordable units designated for the Very Low Income affordability level; WHEREAS, on February 9, 2017 the Planning Commission conducted a study session of Planning Application No. PLSU16-0001 during a scheduled meeting; WHEREAS, on March 9, 2017 the Planning Commission reviewed Planning Application No. PLSU16-0001 during a scheduled public meeting at which time interested persons had an opportunity to testify either in support of or opposition to the project; and, WHEREAS, at the March 9, 2017, Planning Commission meeting, upon hearing and considering all testimony and arguments, if any, of all persons desiring to be heard, the Commission considered all the facts relating to Planning Application No. PLSU16-0001; NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF ROHNERT PARK DOES RESOLVE, DETERMINE AND ORDER AS FOLLOWS: Section 1. That the above recitations are true and correct. Section 2. Factors Considered. The Planning Commission, in approving Planning Application No. PLSU16-0001 considered the following factors based on the staff report and attachments, the oral presentation and any oral and written comments presented at the meeting, and hereby makes the following findings: A. That the developments general appearance is compatible with existing development and enhances the surrounding neighborhood. Criteria Satisfied. The proposed development is compatible with surrounding commercial and multi -family development found in the Central Rohnert Park Priority Development Area (PDA)'s Creekside Neighborhood. The project implements the goals of the PDA including Land Use and Development Goals to promote high-quality infill that enhances the character of the neighborhood that takes advantage of transit. The design of the project will provide a contemporary element in the area and will complement and enhance the existing architecture in the area. The project is sited in such away so as to complement the existing City Hall and to provide for an active streetscape along Avram Avenue. The height and scale is consistent with the DT-RH Downtown High Density Residential District. Improvements to the Copeland Creek trail will provide an enhancement and amenity to the surrounding neighborhood and the city as a whole. Native drought tolerant landscaping, LED lighting cast on the Copeland Creek Trail, street -oriented site design, and high quality construction materials will enhance the surrounding neighborhood. Mechanical equipment is carefully shielded from view by architectural details and parapets around the roof line. B. That the development incorporates a variation from adjacent on-site and off-site structures in height, bulk, and area; arrangement on the parcel; openings or breaks in the faVade facing the street; and/or the line and pitch of 'the roof. Criteria Satisfied. The project pays special attention to site layout and building design. The multi -family buildings have facades with varied articulation that face the street frontages. The building elevations have deep recesses and major articulation in the building walls and the roof line, providing visual interest to the facades and reducing the bulk of the structures. The primary massing of the structures is shifted away from Avram Avenue and away from the two and three story apartment building south of Avram Avenue to allow light on to the street, match the scale of adjacent buildings, and promote openness and add interest. The apartment units will have individual patios enclosed by attractive railing. Extensive tree planting will be included in the landscaped areas. An attractive pool area and cabana is located on the western end of the project and. The development will include attractive improvements on the street frontages including the varied usage of materials, lighting that highlights the buildings' design and avoids glare to surrounding properties, and the use of varied articulation and open three foot high fencing and walls along Avram Avenue to define the private and public spaces.. C. That the development will be located and oriented in such a manner so as to provide pedestrian, bicycle and vehicular connections with adjacent properties, as appropriate, and avoids indiscriminate location and orientation. 2 Criteria Satisficd. The development is located within walking distance of the Rohnert Park SMART station and a wide variety of shopping options. The project is designed to enhance and take advantage of the trails along Copeland Creek and Commerce Boulevard. Improvements will be made to the Copeland Creek Trailhead at Commerce Boulevard including seating, signage, and architectural ornamentation. Vehicular connections will be provided through two entrances opening on to Avram Avenue that also provides emergency access, pick-up/drop-off circulation, and access to the project's two trash enclosures. Section 3. Environmental Clearance. A consistency review was completed for this project to demonstrate that it is consistent with the Central Rohnert Park Priority Development Area Plan Environmental Impact Report (PDA EIR) that was certified by the City of Rohnert Park in March 2016. The Planning Commission finds that the project will not result in any new potentially significant impacts and there is no new information that was not analyzed in the PDA EIR and that could result in new significant impacts. Therefore, no additional environmental review is required. The project will adhere to the Mitigation Monitoring and Reporting Procedures found in the PDA EIR. NOW THEREFORE BE IT RESOLVED, that the Planning Commission does hereby approve Planning Application No. PLSU16-0001 subject to the conditions attached as Exhibit 2. BE IT FURTHER RESOLVED that said action shall not be deemed final until the appeal period has expired and that the appeal period shall be ten (10) working days from the date of said action. No building permits shall be issued until the appeal period has expired, providing there are no appeals. DULY AND REGULARLY ADOPTED on this 9th day of March, 2017 by the City of Rohnert Park Planning Commission by the following vote: AYES: NOES: ABSENT: ABSTAIN: ADAMS V/ BLANQLIIE `/ BORBA V GILiDICE �HAYDON �usan Adams, Vice-Clihirpers n, Rohnert Park Planning Commission ( " Attest: V, ' A san • edo, Recording Secretary 3 x W ry;tt �A Exhibit 2 ADOPTED PER CC RESOLUTION NO. 2017-08 Conditions of Approval Site Plan and Architectural Review: Avram House Project The conditions below shall apply to the Avram House Project located at 100 Avram Avenue (PROJ16-0002) within the Central Rohnert Park Priority Development Area Plan (PDA). General Conditions 1. All applicable provisions of the City of Rohnert Park Municipal Code (RPMC) are made a part of these conditions of approval in their entirety, as if fully contained herein. 2. The violation of any condition listed herein shall constitute a nuisance and a violation of the RPMC. In conformity with Chapter 1.16 of the RPMC, a violation of the RPMC may be an infraction or a misdemeanor and shall be punishable as provided by law. In addition to criminal penalties, the City may seek injunctive relief. The Applicant agrees to pay for all attorney's fees and costs, including, but not limited to, staff time incurred by the City in obtaining injunctive relief against the Applicant as a result of a failure of the Applicant to fully perform and adhere to all of the Conditions of Approval. The Applicant agrees to defend, indemnify, hold harmless and release the City of Rohnert Park, its agents, officers, attorneys and employees from any claim, action or proceedings brought against any of the above, the purpose of which is to attack, set aside, void, or annul the approval of this application or certification of the environmental document which accompanies it. This indemnification obligation shall include but not be limited to, damages, costs, expenses, attorneys', or expert witness fees that may be asserted by any person or entity, including the Applicant, whether or not there is concurrent passive or active negligence on the part of the City, its agents, officers, attorneys or employees. General Project Conditions 4. By accepting the benefits conferred under the Avram House project, the Applicant acknowledges all the conditions imposed and accepts the development subject to those conditions. The use of the property by the Applicant for any activity authorized by the project approvals shall constitute acceptance of all of the conditions and obligations imposed by the City. The Applicant by said acceptance waives any challenges as to the validity of these conditions. 5. The Avram House Project shall be designed, approved and installed to be consistent with the overall buildout of the Central Rohnert Park Priority Development Area Plan, the RPMC and the City of Rohnert Park General Plan. The Avram House Project shall comply with all applicable mitigation measures established in the Environmental Impact Report (EIR) adopted in 2016 for the Central Rohnert Park Priority Development Area Plan. The project shall also comply with the implementation, monitoring and reporting requirements for each mitigation measure established in the Mitigation Monitoring Program adopted with the EIR. Costs of implementing and monitoring the mitigation measures shall be borne by the Applicant and any successors -in -interest. 6. The Site Plan and Architectural Review approval shall expire one year from the Planning Commission approval date, unless prior to expiration a building permit is issued and construction is commenced and diligently pursued toward completion and the use is initiated, or an extension is requested and approved. Project Design Conditions 7. All improvements shall conform to the approved site plan, exterior elevations, landscape plan, and materials board. Any minor changes shall be reviewed and approved by staff. 8. All roof and ground mounted mechanical equipment shall be screened from public view, details subject to Planning and Building review. 9. Project lighting shall be reviewed and approved by planning and engineering staff and conform to the approved plan. All exterior lighting shall be LED and designed to avoid spillover onto adjacent properties and the public right-of-way. All lighting, reflective surfaces, and other sources of illumination shall be utilized in a manner that minimized glare on public streets or any other parcel. The lights shall be of a minimum illumination necessary to perform operations and provide for safety and security. (See also Condition #27). 10. Landscaping shall be constructed in accordance with the State's Model Water Efficient Landscaping Ordinance (MWELO), or in accordance with water conservation standards which meet or exceed the requirements of the MWELO. The Applicant shall submit a landscaping and irrigation plan that identifies landscape material types and locations, irrigation, water usage calculations, and other information as required. The plan shall be submitted to and reviewed and approved by the Development Services Department prior to construction. All costs for review of the requirements of the MWELO shall be borne by the Applicant. All landscaping and irrigation subject to the MWELO shall be substantially complete prior to the issuance of a Certificate of Occupancy. 11. Landscaping shall be irrigated using recycled water, to the extent that recycled water is available. The project shall apply for and comply with the City's standard Recycled Water Use Agreement. 12. The project shall meet the following: Regulations governing construction standards and specifications including California Building Code Standards as amended and adopted by the City, and all other applicable State and local regulations applicable in the City at the time of permit application. 13. The landscaping shall be maintained in an attractive, weed and litter -free condition at all times. 14. There shall be no banners, flags, sandwich boards, or other temporary signs or attraction getting devices displayed on the property without the appropriate permit. 2 15. Recycling shall be conducted in accordance with accepted practices as directed by the Sonoma County Waste Management Agency. 16. Any new trees within five (5) feet of the public right-of-way or within five (5) feet of any paved areas within the project shall have root barriers that are approved by the City Engineer. Public Safety Conditions 17. Prior to the issuance of a building permit, the Applicant shall submit a fire hydrant location plan to the Fire Marshal for review and approval. The Applicant shall make provisions for the repair and maintenance of the system in a manner meeting the approval of the Fire Marshal. Fire hydrants must be in place and fully operational within 150 feet of any construction site before the delivery of any combustible materials to that site. Contact the Fire Prevention Bureau for a clearance memo. 18. Prior to the issuance of any Certificate of Occupancy, all fire hydrants shall have a fully functional system with blue reflective pavement markers indicating the hydrant locations on the street as approved by the Fire Marshal. 19. Fire sprinklers which comply with NFPA 13 and local amendments are required for all structures. Provide a fire alarm which complies with NFPA 72 and local amendments. Provide panic hardware at any exit gate. All exit paths shall be illuminated and marked. 20. All buildings and units shall be clearly marked with lighted address numbering on the front of each unit. A complex directory shall be erected at each entry to the development. Details of the directory shall be submitted for review and approval by the Fire Marshal prior to issuance of building permits. Provide a key box with a permanently labelled set of keys at each entry. 21, Fire Lanes must be fully identified with signage and/or red curb markings as approved by the Fire Marshal. 22. Graffiti shall be removed from all structures (such as exterior building walls, retaining walls, noise attenuation walls, utility poles and boxes) within 24 hours of discovery at the expense of the owner or property manager. 23. Plans shall be reviewed by the Public Safety Department prior to issuance of building permits for fire and life safety requirements such as: fire flow, fire hydrants, fire sprinklers, fire department connections, alarm systems, smoke control systems, public -safety, radio amplification systems, gates, egress, and exiting. Such plans will be reviewed and commented on for individual buildings. 24. Prior to issuance of a Certificate of Occupancy, the Applicant shall provide plans or identify measures to comply with standard procedures for implementing the California Fire Code and nationally recognized standards in the use of any combustible and flammable liquids, aboveground or underground storage of such materials, welding and potential spark production, and building occupancy rating in a manner meeting the approval of the Fire Marshal. 25. Prior to the issuance of a building permit, the Applicant shall submit to the Fire Marshal a list of all hazardous, flammable and combustible liquids, solids or gases to 3 be stored, used or handled on site. These materials shall be classified according to the California Fire Code, and the information the Applicant submits to the Fire Marshal shall include a summary listing of the totals for storage and use for each hazard class. Prior to the issuance of a building permit, the Applicant shall also complete and submit to the Fire Marshal a copy of a "Hazardous Materials Inventory Statement and Hazardous Materials Business Plan" packet. 26. Open view fencing shall be utilized throughout the site, and final designs shall be reviewed and approved by the Planning Manager prior to construction. 27. Continuous illumination directed down at the path shall be provided on the Copeland Creek trail adjacent to the Project site, subject to review by the Planning and Engineering Departments. Grading and Improvement Plan Requirements 28. All improvements shall be designed in conformance with: the City of Rohnert Park, Manual of Standards, Details and Specifications in effect at the time of development 29. The Project benchmark shall be based on a City approved USGS benchmark, and also confirmed by BKF to be applicable for Final Map. 30. The applicant shall implement the design recommendations stated in the "Design Level Geotechnical Investigation Proposed Residential Development 100 Avram Avenue, Rohnert Park, California" submitted by PJC & Associates dated August 4"', 2016 as a condition of development at the project site. 31. The grading plan shall be prepared by a Registered Civil Engineer, licensed in the State of California and shall be submitted for review and approval by the City Engineer. 32. The grading plan shall clearly show all existing survey monuments and property corners and shall state that they shall be protected and preserved. 33. The improvement plans shall be prepared by a Registered Civil Engineer, licensed in the State of California, shall be submitted for the review and approval of the City Engineer prior to issuance of a grading permit. 34. The improvement plans shall illustrate public street frontage improvements, grading, paving, utilities, and drainage structures, and lighting and trash collection facilities to be built. The improvements plans shall include parking lots, street and utility information including all concrete curb and gutter, sidewalk, street lights, striping and signing, paving, water lines, storm drain lines and sewer lines as necessary, erosion control and any necessary transitions. 35. The improvement plans shall include signage, striping and green bike lane delineation as necessary to formalize the bicycle and pedestrian crossing routes from the Copeland Creek trail to the Class 1 multi -use pathway on Commerce Boulevard. 36. The improvement plans shall show all existing curb, gutter, and sidewalk along both street frontages replaced. The plans shall show the new trail path and shall follow City of Rohnert Park standards during design and construction. 4 37. The improvement plans shall show completion of the concrete Copeland Creek trail along the project's Copeland Creek frontage. 38. Improvements plans shall include an erosion control (winterization) plan. The plan must include an order of work and staging/scheduling component indicating when facilities must be installed and when they may be removed. A separate Rain Event Action Plan (REAP) shall be required and prepared as part of the Storm Water Pollution Prevention Plan (SWPPP). A copy of the REAP shall be kept on-site throughout the duration of construction activities. 39. The Improvement Plans shall include the following required notes: a. "Any excess materials shall be considered the property of the contractor and shall be disposed of away from the job side in accordance with applicable local, state and federal regulations." b. "During construction, the Contractor shall be responsible for controlling noise, odors, dust and debris to minimize impacts on surrounding properties and roadways. Contractor shall be responsible that all construction equipment is equipped with manufacturers approved muffler's baffles. Failure to do so may result in the issuance of an order to stop work." c. "If at any time during earth disturbing activities a concentration of artifacts or a cultural deposit is encountered, work shall stop in the immediate area and the construction manager shall contact the City and a qualified archeologist." d. "If human remains are encountered anywhere on the project site, all work shall stop in the immediate area and the construction manager shall contact the City, the County Coroner and a qualified archeologist." e. "If paleontological resources or unique geologic features are encountered during construction, all work shall stop in the immediate area and the construction manager shall contact the City and a qualified paleontologist." f. "Construction work hours shall be consistent with the Rohnert Park Municipal Code, Noise Ordinance. g. "All proposed on-site utilities shall be placed underground. This does not include surface mounted transformers, pedestal mounted terminal boxes and meter cabinets." h. "If hazardous materials are encountered during construction, the contractor will halt construction immediately, notify the City of Rohnert Park, and implement remediation (as directed by the City or its agent) in accordance with any requirements of the North Coast Regional Water Quality Control Board." i. "The contractor(s) shall be required to maintain traffic flow on affected roadways during non -working hours, and to minimize traffic restriction during construction. The contractor shall be required to follow traffic safety measures in accordance with the Cal Trans "Manual of Traffic Safety Controls for Construction and Maintenance Work Zones." The City of Rohnert Park emergency service providers shall be notified of proposed construction scheduled by the contractor(s) in writing and at least 24 hours in advance of its proposed schedule of work." Site Civil and Landscape Plans 40. Sidewalk transitions shall be provided to allow a clear five foot walkway at all locations, including areas where mailboxes, streetlights, street signs and fire hydrants are to be installed. 41. The improvement plans shall illustrate accessible ramps and parking as required by State of California Title 24. 42. Driveway entrances shall be designed to meet the requirements of the City Standards and the City Engineer. All driveways shall be per City standards for multi -residential developments. 43. Site photometrics are to be submitted with the Site Civil Drawings for review and approval. 44. Landscape plans shall be submitted with the civil improvement plans. Sidewalk alignment shall be shown on both the civil and landscape plans. 45. The site design shall include adequate fire lanes and other emergency facilities as determined by Department of Public Safety including any NO PARKING lanes, turnarounds, or other features as required by the Rohnert Park Department of Public Safety. Hydrology, Storm Water and Storm Drain 46. The storm drain system shall be designed to meet the requirements of the Sonoma County Water Agency Flood Control Design Criteria (latest revision), specific to the Project and these conditions. 47. The applicant shall prepare and implement a site specific storm water pollution prevention plan acceptable to the City that identifies best management practices for effectively reducing discharges of storm water containing sediment and construction wastes resulting from site construction activities. The applicant shall also include 5 - mm trash screens at the outfall into Copeland Creek in conformance with trash capture requirements adopted by the State Water Resources Control Board in April 2015. 48. The improvement plans shall be in conformance with the City of Santa Rosa Storm Water Low Impact Development Technical Design Manual (latest edition). 49. The project shall apply for and comply with the City's standard Master Maintenance Agreement for all onsite stormwater best management practices. 50. Discharge of runoff onto pavement should be avoided. 51. Drainage improvements shall be designed by a Civil Engineer registered in the State of California in accordance with the Sonoma County Water Agency's Flood Control Design Criteria. Public and private drainage improvements shall be shown on the improvement plans and shall be approved by the Sonoma County Water Agency (SCWA) prior to approval by the City Engineer. R 52. No lot to lot drainage is allowed. No concentrated drainage may discharge across sidewalks. All site drains must be connected to the public storm drain system, or discharged through the face of curb or to an established waterway. 53. Plans and certifications shall demonstrate compliance of all improvements, including building pads and finished floor elevations, with the City's Flood plain Ordinance, to the satisfaction of the Building Official and City Engineer. Pad elevations shall be constructed at a minimum of 1 foot above the 100 -year Floodplain as determined by the City and certified by the project engineer. 54. Site drainage design must include facilities for the containment of recycled water runoff due to over irrigation, system leakage or control failure. Water System Requirements 55. The improvement plans shall show backflow prevention devices in accordance with the requirements of the City of Rohnert Park's Backflow Prevention Ordinance. 56. Each individual multifamily shall be sub -metered off a master City water meter. 57. The improvement plans shall show water services to all building. All City water meters shall be located within the right-of-way unless otherwise approved by the Development Services Department. The improvement plans shall show fire protection in accordance with the requirements of Rohnert Park Fire Department. 58. The improvement plans shall show hydrants placed per the direction of the Rohnert Park Fire Division. 59. The improvement plans shall include a note that states "All hydrants shall be covered with bags indicating that the hydrant is not active until flow tests are completed by the City and the hydrants are approved." Sewer System Requirements 60. Sewer grades must be designed such that ultimate finished floors are a minimum of 12" above upstream manhole or clean-out rim elevations Recycled Water System Requirements 61. The improvement plans shall show recycled water use for irrigation. 62. The recycled water system improvements shall be designed in accordance with the City of Santa Rosa's Recycled Water Users Guide, the City of Santa Rosa and City of Rohnert Park standards, Title 22 of the California Code of Regulations and the requirements of the North Coast Regional Water Quality Control Board. 63. All recycled water mains, service laterals, plumbing, valves, pipes, appurtenances, irrigation parts, vaults and boxes must be purple. Recycled water notification signs shall be installed as directed by the City Engineer. Recycled water spray, mists and ponding must not be present in any designated eating area. All drinking fountains must be positioned or shiclded to eliminate any exposure to recycled water sprays or mists. 64. Recycled water/potable water dual plumbing design and layout, construction - installation and final inspection review for individual lots or grouping of lots must be performed by an AWWA certified Cross Connection Specialist and all deficiencies must be corrected at the applicant's expense. Written reports of the Cross Connection Specialist's finding must be submitted to and approved by the City. Dry Utility System Requirements 65. Utility plans within existing public right-of-way for electric, gas, telephone, cable and fiber optic (joint trench) shall be submitted to the City Engineer for review. All above -ground structures shall be specifically approved by the Director of Development Services. 66. All onsite utilities shall be placed underground. Prior to the Application for Grading Permits and/or Improvement Agreements 67. An approval Ietter from the Sonoma County Water Agency regarding their access arrangement to Copeland Creek shall be provided. The letter shall indicate ownership/ maintenance of the various improvement being proposed, and an exhibit shall be prepared showing the responsibilities of the various parties as agreed upon at an earlier date (property owner, Sonoma County Water Agency, City). Prior to the Issuance of Grading Permits and/or Improvement Agreements 68. No construction activity may commence until the applicant has demonstrated to the City that it has filed a Notice of Intent to comply with the Terms of General Permit to Discharge Storm Water Associated with Construction Activity (NOI) with the State of California Water Resources Control Board. 69. The applicant shall secure an encroachment permit from the City prior to performing any work within the City right of way or constructing a City facility within a City easement. 70. If the site will require import or export of dirt, the applicant shall submit in writing the proposed haul routes for the trucks and equipment. The haul routes must be approved by the City prior to import/export work commencing. 71. For a grading permit, the applicant shall secure an approval of a grading plan prepared by a Registered Civil Engineer licensed in the State of California, pay all required fees and post sufficient surety guaranteeing completion. 72. The applicant shall provide the city with signed deeds for all on-site and off-site easements associated with the project. The applicant shall facilitate obtaining a public easement for the Copeland Creek Trail in favor of the City of Rohnert Park signed by SCWA if the trail is in SCWA's right of way, and/or shall grant an easement if the trail is on private property. 73. Prior to application for a grading permit, a striping layout must be approved by the City Engineer for parking on both sides of Avram from Commerce Blvd. to Santa Alicia, as well as the north side of Santa Alicia Drive from the intersection of Avram Avenue to the first intersecting driveways both eastbound and westbound. Prior to Application for the First Building Permit 74. Prior to the application for the first building permit, Tentative and Final Maps shall be submitted to the City. The Maps shall show: a. Dedication of a new public storm drain easement over the rerouted storm drain line b. Abandonment of the existing public storm drain easement over the pipe to be abandoned c. An access easement in favor of the Sonoma County Water Agency for access to Copeland Creek from Avram Avenue. d. Abandonment of the existing 20' parking and landscape easement on 6750 Commerce Boulevard parcel. e. The merging of the parcels on the tentative map into one parcel f. Abandonment of the existing Public Utility Easement (107 O.R. 46) Prior to the Issuance of the First Building Permit 75. Prior to issuance of the first building permit, the applicant shall reimburse the City for any unpaid application processing costs incurred during the environmental review and entitlement approval process. 76. As required in the Administrative Permit approved on February 24, 2017 (PLAP 17- 0001), prior to issuance of the first building permit, the applicant shall enter into with the City and record an affordable housing restriction in a form acceptable to the Planning Manager and City Attorney and consistent with the provisions of State of California Density Bonus law (Government Code section 65915 et seq.) to, among other things, guarantee that a minimum of seven residential units will remain available for Very -Low Income households for a period of 55 years from the first occupancy. 77. The applicant shall provide pad certifications for the site on which the building permit is requested. 78. The applicant shall provide proof of payment of any impact fees required by the school district that serves the property. 79. The applicant shall demonstrate adequate fire flows to protect combustible construction in accordance with the RPMC and to the satisfaction of the City's Fire Marshall During Construction 80. All construction shall conform to the City's most current Manual of Standards, Details, and Specifications latest edition, all City Ordinances and State Map Act and the approved plans. 0 81. The applicant shall complete all water and wastewater improvements, including pressure and bacterial testing and raising manholes and cleanouts to grade prior to connection of any improvements to the City water or wastewater systems. 82. If any hazardous waste is encountered during the construction of this project, all work shall be immediately stopped and the Sonoma County Environmental Health Department, the Fire Department, the Police Department, and the Development Services Inspector shall be notified immediately. Work shall not proceed until clearance has been issued by all of these agencies. 83. The applicant shall be responsible to provide erosion and pollution control in accordance with the approved plans and permits. 84. The applicant shall keep adjoining public streets free and clean of project dirt, mud, materials, and debris during the construction period. 85. If grading is to take place between October 15 and April 15, both temporary and permanent erosion control measures, conforming to the project erosion control plans shall be in place before October 1 st. Erosion control measures shall be monitored and maintained continuously throughout the storm season. 86. The following minimum Best Management Practices (BMPs) shall be required during construction: a. Construction crews shall be instructed in preventing and minimizing pollution on the job. b. Construction entrances/exits shall be stabilized to prevent tracking onto roadway. c. Exposed slopes shall be protected from erosion through preventative measures. d. Use brooms and shovels when possible to maintain a clean site e. Designate a concrete washout area. Maintain washout area and dispose of concrete waste on a regular basis. f. Protect drain inlets from receiving polluted storm water through the use of filters such as fabrics, gravel bags or straw wattles. g. Have necessary materials onsite before the rainy season. i. Inspect all BMPs before and after each storm event. Maintain BMPs on a regular basis and replace as necessary, through the entire course of construction. j. All construction implementation measures as outlined in the approved Mitigation Monitoring and Reporting Program. 87. Where soil or geologic conditions encountered in grading operations are different from that anticipated in the soil and/or geologic investigation report, or where such conditions warrant changes to the recommendations contained in the original soil investigation, a revised soil or geologic report shall be submitted for approval by the City Engineer. It shall be accompanied by an engineering and geological opinion as to the safety of the site from hazards of land slippage, liquefaction, erosion, settlement, and seismic activity. 10 88. The Project shall comply with the RPMC, including hours of construction. All construction equipment shall be adequately muffled and properly tuned in accordance with manufacturer's specifications. All equipment shall be checked by a certified mechanic and determined to be running in proper condition prior to operation. 89. Hours of work shall be limited to between 8 a.m. to 6 p.m. Monday through Friday. Work on Saturday or Sunday will only be permitted with written permission from the City. Requests for extended hours must be submitted 72 hours in advance. 90. Throughout the construction of the project, dust control shall be maintained to the satisfaction of the City, including all measures in the approved Mitigation Monitoring and Reporting Program. The applicant shall be responsible to implement reasonable measure to cure any problems that may occur. At a minimum the dust control measures will include: • Cover all trucks hauling construction and demolition debris from the site. • Water on a continuous as -needed basis all earth surfaces during clearing, grading, earthmoving, and other site preparation activities. • Use watering to control dust generation during demolition.. • Pave, apply water three times daily, or apply (non-toxic) soil stabilizers on all unpaved parking areas and staging areas. • Sweep daily (with water sweepers) all paved areas and staging areas. • Provide daily clean-up of mud and dirt carried onto paved streets from the site. • Properly maintain all construction equipment. • For construction sites near sensitive receptors (or if residential development occurs prior to commencement of commercial development): • Install wheel washers for all existing trucks, or wash off the tires or tracks of trucks and equipment leaving the site. • Suspend dust -producing activities during periods when instantaneous gusts exceed 25 mph when dust control measures are unable to avoid visible dust plumes. • Limit the area subject to excavation, grading and other construction or demolition activity at any one time. 91. Idling times shall be minimized either by shutting equipment off when not in use or reducing the maximum idling time to five minutes (as required by the California airborne toxics control measure Title 13, § 2485 of California Code of Regulations). Clear signage regarding idling restrictions shall be provided for construction workers at all access points. 92. The applicant shall post a publicly visible sign with the telephone number and person to contact at the construction site and at the City of Rohnert Park regarding dust complaints. The applicant shall respond and take corrective action within 48 hours. The Bay Area Air Quality Management District's phone number shall also be visible to ensure compliance with applicable regulations. 11 93. The applicant shall post signs of possible health risk during construction. The applicant is responsible for compliance with the Bay Area Air Quality management District's rule regarding cutback and emulsified asphalt paving materials. 94. The application shall require that its construction contractors use newer construction equipment that meets the NO. emissions standard of 6.9 grams per brake -horsepower hour. 95. The project applicant shall require that its construction contractors use off-road diesel - powered construction equipment with engines greater than 50 horsepower be equipped with a Level 3 Verified Diesel Emissions Control (VDEC). 96. The applicant shall repair all construction related damage to existing public facilities (streets, sidewalks, utilities etc.) at no cost to the City. 97. If, during construction, the contractor damages any existing facilities on the neighboring properties (i.e. fences, gates, landscaping, walls, etc.) contractor shall be responsible to replace all damaged facilities. Prior to Occupancy 98. All streets and sidewalks shall be paved, all public utilities installed, all signage relating to traffic control (stop signs, etc.) and all streetlights must be operational. 99. All water system improvements necessary to provide fire flows and pressures shall be installed an operational 100. All improvements shown in the improvement plans deemed necessary for the health, safety and welfare of the occupant and general public shall be completed. 101. The applicant shall have entered into the City's standard Master Maintenance Agreement with the City to address long term maintenance of, among other things, the stormwater BMPs. 102. The applicant shall have entered into the City's standard Recycled Water Agreement, designate site supervisor(s) and undertake any other activities necessary. Prior to Acceptance of Public Improvements 103. All improvements shown on the Improvement Plans shall be completed. 104. All existing curb, gutter and sidewalk to remain shall be inspected by the City. Any curb, gutter and sidewalk which is not in accord with City standards or is damaged before or during construction, shall be replaced. 105. The applicant shall provide a written statement signed by his or her engineer verifying that the grading and/or drainage improvements are completed in accordance with the plans approved by the Sonoma County Water Agency, the City Engineer, and the Building Official. 106. A complete set of As -Built or Record, improvement plans on the standard size sheets shall be certified by the Civil Engineer licensed in the State of California and returned to the City Engineer's office prior to final acceptance of the public 12 improvement. These shall show all constructive changes from the original plans including substantial changes in the size, alignment, grades, etc. during construction. 107. Approved Record Drawings shall be provided to the City geo-referenced in Autocad DWG and & PDF File formats. The same benchmark shall be used as in Condition #29. 13 MEMORANDUM Februrary 15, 2018 Susan Azevedo and Zachary Tusinger City of Rohnert Park Development Services RE: Bella Creek SPAR (formerly known as Avram House) Dear City staff and To Whom It May Concern, lowney ,arch On behalf of the project Owner, Bella Creek LLC, please find and process the enclosed Application for Extension of Planning Approval for the project known as Avram House. At this time, the project method of construction is being converted to modular which requires additional time for exploration, reengineering and preparation for parallel submission to the state Department of the State Architect (DSA). In addition to the requested extension of the project's entitlement approval, we are also hereby requesting the same extension for or apply the extension to the Approved Administrative Permit associated with the Affordable Housing Density Bonus. Regards Eric Price / Lowney Architecture 360 seventeenth sU eet TEL 510 836 5400 suite 200 FAX 510 836 5454 oakland, califomia 94612 URL lowneyarch com l'.1 AERIAL SRE VIEW FROM AVRAM C,AERIAL SITE VIEW FROM COMMERCE !]VL.IWI:+M��-rM[k��. M+1.�R.SNC1Wk �[I MW�I1 pItMo DATE I1-07-2016 I hERW63fIEVIEWFROM AVRAM & AVRAM HOUSE 100 AVRAM AVE ROHNERT PARK CALIFORNIA 94928 M►t'1e 67 - .. AURA. VE, _ d OAP/ `Qn 1HFFIT11F SHEET NUMBER FMVIPON.EKWALMRiOVAFK7Ni.klbg PROPOSED SITE CONTEXT 3Dwnxr x xnw oa raaE IMAGES A.04 �+Easu'.ronro „wrm.,salxucnr ARCHITECTS COPE LAND CREEK r� CITI' fi HALI I o �.. BLDGC R DGC • m - I _ t -y �"� + ray ..- d A++.�:1's`. }r.+l''y.+. UJI T • j1 ��I ' '.. m.m..l f: r • - - �c, _ - —i ?+r=ol w F BLDG 'I ,t �,�,.i Bi.Di3B ` + ENTRY • 1 ENTRY � DRIVE ,DRIVE _ , AVRW AVE cw,uaae:ew cvam.�ec+�ranwmm�Nwrw +u mrn aur+e Yi,r4:Nr41 Y I! N I ,14;'V6 AVRAM HOUSE 100 AVRAM AVE. ROH14ERT PARK, C A L I F O R NIA 94928 —F� — ACCESSIBLE PATH OF TRAVEL SCALE "T TIT"SHEET NUMBER EWP.OW ENTACRfFikVVAl13rIS W QZIC.t ILLUSTRATIVE SITE PLAN &„:wwsm .,r•.Im� „a ACCESSIBLE PATH OF TRAVEL A 1.1 A —E „o nxue.n ntcreew ARCHITECTS CITI' HALI "T TIT"SHEET NUMBER EWP.OW ENTACRfFikVVAl13rIS W QZIC.t ILLUSTRATIVE SITE PLAN &„:wwsm .,r•.Im� „a ACCESSIBLE PATH OF TRAVEL A 1.1 A —E „o nxue.n ntcreew ARCHITECTS City of Rohnert Park Planning Commission Report DATE: March 22, 2018 ITEM NO: 8.2 SUBJECT: PLDA17-0001: Third Amendment to the Development Agreement by and among the City of Rohnert Park and SOMO Village LLC and SOMO Village Commercial LLC LOCATION: Valley House Drive and Bodway Parkway (APN 046-051-040, 046-051-042, and 046-051-045) REQUEST: Amendments Regarding Pedestrian, Walkway and Bicycle Paths (Section 4.07 of the Development Agreement) and Park Improvements (Soccer Field) (Section 4.11 of the Development Agreement) APPLICANT: Eric Reid for SOMO Village BackEround: In 2010, the City of Rohnert Park approved the Sonoma Mountain Village Planned Development, a mixed-use community on 175 acres consisting of the former Hewlett Packard/Agilent technology campus and undeveloped land. The approval included a Development Agreement (DA) between the City and Sonoma Mountain Village LLC and KDRP LLC. Sonoma Mountain Village LLC and KDRP LLC were the development interests at the time. The DA provides for orderly development of the property in accordance with approved development plan and outlines rights and responsibilities of the developer and the City. The Sonoma Mountain Village Planned Development has not proceeded on the schedule that was anticipated in 2010. As a result of these delays and some reorganization of the developer's interests, the DA was formally amended twice (both times in 2012) has been the subject of a Partial Assignment and Assumption Agreement between the City and the new development interests SOMO Village LLC and SOMO Village Commercial LLC. In addition, the City and developer has entered into two letter agreements to address delays in Developer's compliance with its obligations to build both portion of the SMART multi -use path and an all-weather soccer field. The purpose of the proposed third amend is to clarify that the developer has remedied its non-compliance with respect to the SMART multi —use path and to outline an updated schedule Page 1 for the completion of the all-weather soccer field, along with the City's remedies if the developer defaults on this obligation. Proposal and Analysis: The proposed third amendment to the DA will: 1. Modify Section 4.07(B) which deals with the developer's obligation to build the portion of the SMART multi -use path from the Cotati Station to Sonoma Mountain Village. 2. Modify Section 4.11(B) of which deals with the developer's obligation to build an all- weather soccer field. Each of these proposed amendments is analyzed below. Section 4.07(B) — SMART Path: The DA obligates the developer to build the portion of the SMART multi -use path from the Cotati Station to Sonoma Mountain Village. The DA required that this work be complete by December 31, 2014. The work was not completed by December 31, 2014. Subsequent to the City's notice of breach and follow-up letters, the developer entered into a funding agreement with SMART in October of 2016. Under the funding agreement, SMART was able to complete the path segment. The proposed third amendment clarifies the history of construction of the SMART path segment and acknowledges that this obligation is complete. Section 4.11(B) — Soccer Field: The DA obligated the developer to build an all-weather soccer field on one of two sites within the Sonoma Mountain Village Planned Development. The DA originally required that the field be complete no later than December 31, 2012. The second amendment to the DA, which was approved in late 2010, extended the deadline for completing the field until December 31, 2016. The extension was granted in recognition of the economic circumstances impacting new development at that time. In April 2016, the City notified the developer of its concern that the developer had not begun work on the soccer field and would be unable to complete it on time, which would result in another breach of the development agreement. At this time, the City and developer negotiated a letter agreement whereby: 1. The soccer field would be relocated from Sonoma Mountain Village to the City's Sunrise Park 2. The developer would pay the City $500,000 in two installments as consideration for this change. 3. The City and developer would memorialize these terms and a new schedule for the soccer field construction in an amendment to the DA. In April of 2017, at the developer's request, the City Council approved a Partial Assignment and Assumption of the Sonoma Mountain Village DA in order to allow the developer to secure financing. As part of the Partial Assignment and Assumption, the developer deposited $2.3 million with the City as security for its soccer field obligations. The City has been holding this deposit in an escrow account. The proposed DA amendment establishes the following new provisions with respect to the soccer field and the funds on deposit. 1. The soccer field will be relocated from Sonoma Mountain Village to the City's Sunrise Park Page 2 2. The developer will construct the soccer field and relocate or replicate any existing improvements in Sunrise Park that are impacted by the construction. 3. The developer will meet the following new milestones for the soccer field: a. 60% design by May 1, 2018 b. 100% design by July 16, 2018 c. Executed construction contract by August 31, 2018 d. Commencement of construction by October 1, 2018 e. Completion of construction by December 31, 2019. 4. If, upon receipt of bids, the cost of the soccer field exceeds the $2.3 million on deposit, the developer will increase its deposit, with cash, a letter of credit or bonds. 5. If the developer misses a milestone or abandons work on the soccer field during construction, the City shall have the right to use the funds on deposit to complete the work. 6. If the developer misses a milestone, it shall pay the City liquidated damages in the amount of $2,500 per day for each day it is late for all milestones through commencement of construction and $500 per day for each it is late completing construction. The City will hold all liquidated damages until the completion of construction and will return the funds to the developer if it meets its final milestone date. Within the proposed amendment the City is committing to review times that will assist the developer in meeting its milestone schedule. The City and developer are also agreeing to revise the existing escrow instructions for the deposit account to reflect the proposed amendment and to enter into an Improvement Agreement to secure completion of the construction work. Approval and execution of the third amendment will allow the developer to continue to process its plans for the development of Sonoma Mountain Village. Environmental Determination: An Environmental Impact Report (EIR) was certified by the City Council when considering the project entitlements at its meeting of August 24, 2010. The proposed Development Agreement amendments involve no substantial changes in the project or new information of substantial importance of the kind that would require additional environmental review pursuant to Section 15162 of the CEQA Guidelines. Findings: The recommended findings to approve the proposed Third Amendment to the Development Agreement are included in the attached resolution. Public Notification: This item has been duly noticed by publication in the Community Voice for Amendments to the Sonoma Mountain Village Development Agreement and posted at the prescribed locations in Rohnert Park. Property owners within 300 feet of the project were mailed notices of the proposed application. Staff Recommendation: Approve a Resolution of the Planning Commission of the City of Rohnert Park recommending City Council approval of the proposed Third Amendment to the Development Agreement by and among the City of Rohnert Park and SOMO Village LLC and SOMO Village Commercial LLC. Attachments: 1. Resolution 2018-22 of the Planning Commission of the City of Rohnert Park recommending City Council approval of the proposed Third Amendment to the Page 3 Development Agreement by and among the City of Rohnert Park and SOMO Village LLC and SOMO Village Commercial LLC. 2. Third Amendment to the Development Agreement APPROVALS: M. Mary Grace kwson, Director of Development Services Page 4 Date PLANNING COMMISSION RESOLUTION NO. 2018-22 A RESOLUTION OF THE PLANNING COMMISSION OF THECITY OF ROHNERT PARK RECOMMENDING CITY COUNCIL APPROVAL OF THE PROPOSED THIRD AMENDMENT TO THE DEVELOPMENT AGREEMENT BY AND AMONG THE CITY OF ROHNERT PARK AND SOMO VILLAGE LLC AND SOMO VILLAGE COMMERCIAL LLC WHEREAS, Government Code § 65864, et seq., authorizes the City of Rohnert Park to enter into development agreements which will provide certainty, definition and commitment to developers as well as to provide for necessary public improvements required by development; and WHEREAS, Sonoma Mountain Village, LLC and KDRP LLC (collectively, "Developer") submitted applications to the City of Rohnert Park for a General Plan Amendment, Planned Development (including related Conditional Use Permit), and rezoning for real property located at Valley House Drive and Bodway Parkway (the "Property"); and WHEREAS, on August 24, 2010, the City Council approved those applications allowing development of the Property, which includes 1,892 residential units, approximately 825,307 square feet of commercial space, and approximately 23.5 acres of park space (the "Project"); and WHEREAS, in connection with the Project, Developer and City staff negotiated a development agreement ("Development Agreement") for the Project in accordance with the requirements of Government Code § 65864, et seq., and Chapter 17.2 1, "Development Agreement Procedure," of the Rohnert Park Municipal Code ("RPMC"); and WHEREAS, on August 24, 2010, the City Council considered and adopted Ordinance No. 825 approving the Development Agreement; and WHEREAS, the City Council has subsequently approved two amendments to the Development Agreement; and WHEREAS, SOMO Village LLC and SOMO Village Commercial LLC are successors in interest to Sonoma Mountain Village, LLC and KDRP LLC; WHEREAS on April 11, 2017, the City Council approved a Partial Assignment and Assumption Agreement of the Development Agreement, which contemplated a third amendment to the Development Agreement to address Developer's obligations to build a portion of the SMART multi -use path and an all-weather soccer field; and WHEREAS, the parties now desire to amend the Development Agreement to acknowledge the completion of the SMART multi -use path and outline the terms and schedule under which the Developer will complete construction the all-weather soccer field at the City's Sunrise Park; and WHEREAS, pursuant to California State Law and the Rohnert Park Municipal Code, 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 in the Community Voice for a minimum of 10 days prior to the first public hearing; and WHEREAS, on March 22, 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 proposed Third Amendment to Development Agreement; and WHEREAS, the Planning Commission has reviewed and considered the information contained in the proposed Third Amendment to Development Agreement. 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 Third Amendment to Development Agreement: Section 1. Incorporation of Recitals. The above recitations are true and correct, and are incorporated herein by this reference. Section 2. CEQA. The City Council has certified the Final EIR for the Project (including the Development Agreement), and adopted the associated CEQA Findings, Statement of Overriding Considerations, and the Mitigation Monitoring and Reporting Program, and, as amended by the proposed Third Amendment to Development Agreement, there are no substantial changes proposed in the Project, substantial changes with respect to the circumstances under which the Project will be undertaken or new information of substantial importance of the kind that would require additional environmental review pursuant to Section 15162 of the CEQA Guidelines. Section 3. Findings for Amendment of Development Agreement. The Planning Commission hereby makes the following findings: A. A duly noticed public hearing regarding the proposed Development Agreement Amendment was held by the Planning Commission on March 22, 2018, in conformance with the notice provisions of Government Code §§ 65090 and 65091 and the requirements of the Rnhnert Park Mnnicinal Code_ B. The proposed Third Amendment to Development Agreement (Exhibit A) is consistent with the General Plan. C. The Planning Commission has considered other pending applications and approved projects; the traffic, parking, public service, visual, and other impacts of the proposed amendment upon abutting properties and the surrounding area; ability of the applicant to fulfill public facilities financing plan obligations; the relationship of the project to the city's growth management program; the provisions included, if any, for reservation, dedication, or improvement of land for public purposes or accessible to the public; the type and magnitude of the project's economic effects to the city of Rohnert Park, and of its contribution if any toward meeting the city's housing needs; and to any other comparable, relevant factor and finds that: 1. The proposed Third Amendment will not result in conditions that conflict with pending applications and approved projects. 2. The proposed Third Amendment will not result in negative parking, public service, visual or other impacts on abutting property and will enhance an existing public park. 3. By entering into the proposed Third Amendment and complying with its obligations to construct public recreational facilities, the applicant is taking affirmative actions to comply with its obligations to fund the construction of public facilities, and improving land for public purposes. 4. The proposed Third Amendment is not inconsistent with the City' growth management program, economic development plans or efforts to meet the City's housing goals. Section 4. Based on the findings set forth in this Resolution and the evidence in the staff report considered by the Planning Commission concurrently with the proposed Third Amendment to the Development Agreement, the Planning Commission hereby recommends that the City Council approve the Third Amendment to Development Agreement, substantially in the form set forth at Exhibit A hereto, subject to minor revisions approved by the City Manager and City Attorney. DULY AND REGULARLY ADOPTED on this 22nd day of March, 2018 by the City of Rohnert Park Planning Commission by the following vote: AYES: NOES: ABSENT: ABSTAIN: ADAMS BLANQUIE_._ BORBA _ GIUDICE HAYDON Susan Adams, Chairperson, Rohnert Park Planning Commission Attest: Susan Azevedo, Recording Secretary RECORDING REQUESTED BY ) AND WHEN RECORDED MAIL TO: ) ) City of Rohnert Park ) 130 Avram Avenue ) Rohnert Park, California 94928-2486 ) Attention: City Clerk ) (Space Above This Line for Recorder's Use Only) Exempt from recording fee per Gov. Code § 27383. THIRD AMENDMENT TO DEVELOPMENT AGREEMENT THIS THIRD AMENDMENT TO DEVELOPMENT AGREEMENT ("Third Amendment") is entered into as of the day of 2018, by and among SOMO VILLAGE, LLC, a Delaware limited liability company, f.k.a Sonoma Mountain Village, LLC ("Developer"), and SOMO VILLAGE COMMERCIAL, LLC, a Delaware limited liability company ("SVC"), and the CITY OF ROHNERT PARK, a California municipal corporation ("City"). City, Developer and SVC are sometimes referred to herein as a "Party" and collectively as the "Parties." RECITALS A. City, Developer and KDRP LLC, previously entered into that certain Development Agreement, dated as of September 14, 2010 and recorded on October 1, 2010 as Instrument Number 2010084467 in the Official Records of Sonoma County, as amended by that certain First Amendment to Development Agreement, recorded on June 28, 2012 as Instrument Number 2012061268 in the Official Records of Sonoma County and by that Second Amendment to Development Agreement recorded on December 11, 2012 as Instrument Number 2012126932, in the Official Records of Sonoma County and subject to those certain letter agreements dated June 6, 2016 and December 29, 2016 (collectively, the "Development Agreement"). All terms not otherwise defined herein shall have the definition set forth in the Development Agreement. B. Developer and KDRP LLC owned the Property as tenants in common upon entering the Development Agreement. On July 21, 2016, Developer acquired all of KDRP LLC's rights and assumed all its obligations under the Development Agreement. C. Developer was formerly known as Sonoma Mountain Village, LLC and changed its name to SOMO Village, LLC upon converting from a California limited liability company to a Delaware limited liability company on December 30, 2016. D. The Parties entered into that certain Partial Assignment and Assumption and Guaranty of Development Agreement and Consent to Transfer of Real Property (the "Assignment Agreement"), whereby, (1) Developer transferred a portion of the Property to SVC, while retaining all obligations under the Development Agreement, except for those obligations regarding improvements to existing structures on the transferred property; and (2) Developer deposited the sum of $2.3 million with City to fund its soccer field obligations, with the use of such deposit to be governed by that certain Escrow and Funding Agreement, entered into as April 24, 2017, by and between SOMO Village, LLC and City (the "Escrow Agreement"). E. Section 4.07 of the Development Agreement included requirements related to the construction and dedication of a SMART Path connecting the Property to the East Cotati Avenue SMART Station. Developer has since entered into that certain Funding Agreement, Sonoma -Marin Area Rail Transit District and SOMO Village, Construction of Pathway: SOMO Village to Manor Dr., dated as of October 20, 2016, with Sonoma -Marin Area Rail Transit District (SMART) and SOMO Village (the "Funding Agreement"), which provides for Developer's funding of the SMART Path, with the construction to be completed by the contractor responsible for the construction of the SMART Station in coordination with such project. The SMART Path was completed in September of 2017. F. Section 4.11(B) of the Development Agreement, among other things, requires that Developer complete construction of a soccer field and installation of equipment for such soccer field upon one of two pre -designated site locations owned by the Developer by December 31, 2016. The Parties have since entered into two letter agreements, the Assignment Agreement and the Escrow Agreement, which provide for the following: (1) modification of Developer's obligation to construct a soccer field on the Property to the construction of an all-weather soccer field at Sunrise Park, which is already owned by the City; (2) two additional payments from Developer to City in the amount of $250,000 each; and (3) a deposit of $2.3 million by Developer with City to fund its obligations related to the soccer field. G. The Parties now desire to formally amend the Development Agreement a third time to: (1) acknowledge Developer's compliance with the construction of the SMART Path; (2) document the Parties' agreement to move the location of the Soccer Field; and (3) set forth terms regarding the time -frame, funding, and remedies for non- compliance regarding Developer's design and construction of the Soccer Field. AGREEMENT NOW, THEREFORE, in consideration of the promises, covenants and provisions set forth herein, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: 1. Amendment of Definitions. 1.1 The following definitions set forth in Section 1.01 are hereby added or replaced and restated in their entirety: "Funding Agreement" shall have the meaning set forth in Section 4.07(B)(3) of the Development Agreement, as amended. "Soccer Field Characteristics" are as identified in the attached Exhibit K-1. "Soccer Field Site" shall be as identified on Exhibit L-1. "Soccer Field Work" shall have the meaning set forth in Section 4.11(B)(1) of the Development Agreement, as amended. Pa 1.2 The following definitions set forth in Section 1.01 are hereby deleted in their entirety: "Site", "Site 1", "Site 2", "Site 1 Soccer Field", and "Site 2 Soccer Field". 2. Amendments Regarding Pedestrian Walkway and Bicycle Paths. 2.1 Amendment of Section 4,07(B)(3). Section 4.07(B)(3) of the Development Agreement is hereby amended and restated in its entirety to read as follows: "(3) To meet its obligations under this Section 4.07(B), Developer entered into that certain Funding Agreement dated October 20, 2016, with Sonoma -Marin Area Rail Transit District (SMART) (the "Funding Agreement") providing for the construction of the SMART Path in SMART's right-of-way adjacent to the Property, with such construction funded by Developer. Developer shall fully comply with the terms and conditions of the Funding Agreement." 2.2 Amendment of Section 4.07(B)L4). Section 4.07(B)(4) of the Development Agreement is hereby amended and restated in its entirety to read as follows: "(4). Intentionally Omitted." 2.3 SMART Path Completion. The Parties acknowledge that the construction of the SMART Path pursuant to Section 4.07 of the Development Agreement and the Funding Agreement was completed in September 2017. 3. Amendments Regarding Soccer Field. 3.1 Amendment of Section 4.11(B). Section 4.11(B) of the Development Agreement is hereby amended and restated in its entirety to read as follows: "B. Improvement of Offsite Soccer Field. (1) Developer Obli ak tion. Developer, at its cost and expense, shall design, undertake and complete construction of the Soccer Field, relocate or replicate as necessary any improvements affected by the construction of the Soccer Field, and purchase and install Equipment (collectively, the "Soccer Field Work"). The Soccer Field Work shall be performed by a contractor or contractors duly licensed by, and in good standing under the laws of, the State of California, and otherwise in accordance with Applicable Law, this Agreement and the Improvement Agreement, as defined in Section 4.11 (13)(1)(c). Developer may select the contractor or contractors that will perform the Soccer Field Work in its discretion, subject to the requirements set forth in this Section 4.11(B)(1). City hereby approves of Developer acting as general contractor for the Soccer Field Work. Developer shall commence and diligently complete the Soccer Field Work by the following milestones (each, a "Soccer Field Milestone"): a. Plans representing 60 percent design submitted to the City for review by May 1, 2018; b. Plans representing 100 percent design submitted to the City for review by July 16, 2018; c. Executed contract for construction of the Soccer Field Work ("Construction Contract") submitted to the City by August 31, 2018; d. Commencement of the Soccer Field Work by October 1, 2018, with "commencement" defined as when Developer or its contractor commences (i) demolition and removal of existing improvements located at the Soccer Field Site, including without limitation, one or more light fixtures, or (ii) excavation of existing grass sod, whichever occurs sooner; and e. Completion of the Soccer Field Work and approval by City Manager pursuant to Section 3.1(B)(7) by December 31, 2019 ("Soccer Field Deadline"). City shall complete review of the 60 percent design submittal within 14 days of submittal to City. City shall complete review of the 100 percent design submittal and provide any requests for changes, or alternatively, issue a building permit within seven days of the 100 percent design submittal to the City. The City agrees that the enforced delay provisions of Section 9.06 of the Development Agreement shall be applicable to the completion of the Soccer Field Work and Soccer Field Milestones set forth in this Section 4.11(B)(1). (2) Funding. Any and all costs associated with the Soccer Field Work (including, without limitation, design, site preparation, governmental fees, Equipment, relocation or replication of any improvements, and compliance with Applicable Law) shall be borne solely by Developer. Developer has deposited the amount of $2.3 Million Dollars with City pursuant to the Escrow Agreement. Within five business days of execution of the Construction Contract, if the amount of the Construction Contract exceeds the Original Construction Funds (as defined in the Escrow Agreement), Developer, in Developer's sole and absolute discretion, shall (a) increase the Original Construction Funds by depositing with City an amount equal to the difference between the dollar amount of the Construction Contract and the Original Construction Funds (the "Shortfall"), with the amount of the Shortfall to be deposited with City and added to the Original Construction Funds, and become subject to the requirements of, the Construction Funds pursuant to the Escrow Agreement; (b) provide to City a letter of credit, in a form approved by City in its reasonable discretion, the amount of the Shortfall; or (c) obtain a construction bond for the full amount of the Construction Contract, in favor of City, in a form approved by City in its reasonably discretion. Developer agrees and acknowledges that it is responsible for all costs for the Soccer Field Work, including all costs over and above the Construction Funds. (3) improvement Agreement. Prior to the commencement of the Soccer Field Work, City and Developer shall enter into an Improvement Agreement, substantially in the form attached hereto as Exhibit M-2, which shall set forth certain terms regarding Developer's obligation to complete and fund the Soccer Field Work on City property (the "Improvement Agreement"). The Improvement Agreement shall provide, among other things, that: (a) Developer may secure its obligations to complete the Soccer Field Work as provided in Section 4.11(B)(2) above; and (b) if Developer is in breach of a Soccer Field 4 Milestone, after notice and opportunity to cure, City may use the Original Construction Funds, the Shortfall, and proceeds of any letter of credit or construction bond, as applicable, to complete the Soccer Field Work. (4) Amended and Restated Escrow Agrreement. Concurrently with entering this Third Amendment, the Parties will enter into an Amended and Restated Escrow Agreement to conform the Escrow Agreement to the terms of this Third Amendment, including, without limitation, to provide that: (1) no Draw Request (as defined in the Escrow Agreement) may be made until Developer commences construction of the Soccer Field Work; (2) acknowledge that the Construction Funds may be increased per the terms of this Third Amendment; and (3) the Construction Funds may be used by City in the event of a breach under the Third Amendment or the Improvement Agreement. (5) Remedies for Non -Compliance. Developer acknowledges that the completion of the Soccer Field Work is a material term of the Development Agreement, and that the Soccer Field Work was originally required to be completed in 2016. In addition to all other remedies set forth in the Development Agreement, Developer shall pay City damages (the "Milestone Breach Fee") in the amount of $2,500.00 for every day the Developer exceeds a Soccer Field Milestone set forth in Section 3.1(13)(I)(a), (b), (c), or (d) and $500.00 for every day the Developer exceeds a Soccer Field Milestone set forth in Section 3.1(13)(1)(e). Failure to pay an applicable Milestone Breach Fee within 10 business days of notice by City shall constitute an Event of Default under this Agreement. Unless the City exercises its right to complete the Soccer Field Work, the City shall hold any Milestone Breach Fee paid by Developer, except for a Milestone Breach Fee paid pursuant to Section 3.1 (13)(1)(e), in escrow pursuant to the Escrow Agreement, and shall return to Developer such Milestone Breach Fee(s) if Developer completes the Project and it is accepted by City on or before December 31, 2019. If Developer fails to achieve completion of the Project and City does not accept the Project on or before December 31, 2019, City may immediately withdraw from escrow any Milestone Breach Fee(s) paid by Developer, if not already withdrawn. CITY AND DEVELOPER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE AMOUNT OF DAMAGES SUFFERED BY CITY BECAUSE OF DEVELOPER'S DEFAULT OF A SOCCER FIELD MILESTONE; THAT THE AMOUNT OF $2,500.00, OR $500.00, AS APPLICABLE, PER DAY CONSTITUTES A REASONABLE ESTIMATE AND AGREED STIPULATION OF SUCH DAMAGES; THAT CITY SHALL BE ENTITLED TO SUCH SUM AS LIQUIDATED DAMAGES IN THE EVENT OF DEVELOPER'S DEFAULT OF A SOCCER FIELD MILESTONE. City's Initials Developer's Initials (6) Standards. The Soccer Field shall be designed and constructed and Equipment purchased in accordance with the characteristics and standards listed in Exhibit K-1 attached hereto, and such other City standards and specifications as the Parties mutually agree are applicable to the Soccer Field Work. In addition, Developer agrees to relocate or replicate any existing 5 improvements affected by Soccer Field Work such that their condition upon City acceptance is equal to or better than their condition prior to construction of the Soccer Field by Developer, as reasonably determined by the City. (7) City Acceptance. City shall approve the Soccer Field Work and City shall accept the Soccer Field Work pursuant to the terms of the Improvement Agreement." 3.2 Amendment of Exhibit K. Exhibit K, of the Development Agreement, titled "Soccer Field Characteristics," is hereby amended and restated in its entirety with the amended SMV All Weather Field Characteristics set forth in Exhibit K- I , attached hereto and incorporated herein by this reference. The Parties agree that the City Manager may approve minor revisions to the specifications set forth in Exhibit K-1, upon written request by Developer, without formal amendment of Exhibit K-1. 3.3 Amendment of Exhibit L. Exhibit L of the Development Agreement, titled "Site 1 Depiction," is hereby amended and restated in its entirety by the amended Soccer Field Site Depiction set forth in Exhibit L-1, attached hereto and incorporated herein by this reference. 3.4 Amendment of Exhibit M. Exhibit M of the Development Agreement, titled "Site 2 Depiction," is hereby amended and restated in its entirety by the form of Improvement Agreement set forth in Exhibit M-1, attached hereto and incorporated herein by this reference. 3.5 Deletion of Exhibit N. Exhibit N of the Development Agreement, titled "[Form] Bill of Sale," is hereby deleted in its entirety. 4. Development Agreement in Full Force and Effect. Except to the extent the Development Agreement is modified by this Third Amendment, the remaining terms and provisions of the Development Agreement shall remain unmodified and in full force and effect. In the event of a conflict between the terms of the Development Agreement and the terms of this Third Amendment, the terms of this Third Amendment shall prevail. 5. Counterparts. This Third Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Amendment. [Signatures on following page] 31 IN WITNESS WHEREOF, this Third Amendment has been entered into by and between Developer and City as of the day and year first above written. Approved as to Form: By: City Attorney Attest: By: City Clerk CITY: City of Rohnert Park, a municipal corporation LON Darrin Jenkins, City Manager Authorized by Ordinance No. , adopted by the City Council at its meeting of April2018 [Signature Must be Notarized] DEVELOPER: SOMO Village, LLC, a Delaware limited liability company By: Name: Bradley E. Baker Title: Manager [Signature Must be Notarized] SVC: SOMO Village Commercial, LLC, a Delaware limited liability company By: SOMO Management LLC, a California limited liability company Its: Manager 7 By: Name: Bradley E. Baker Title: Manager [Signature Must be Notarized] ACKNOWLEDGMENTS A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF On _, 20_ before me, —, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: _ (seal) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF On , 20_ before me, , Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Acknowledgment (seal) ACKNOWLEDGMENTS A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF On 20_ before me, _ Notary Public, personally appeared_ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: (seal) ****************************** A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF On 20_ before me, , Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: Acknowledgment (seal) Exhibit K-1 Amended SMV All Weather Field Characteristics The dimension of the playing field area shall be a minimum of Length —120 yards; Width — 70 yards. The field shall be oriented west -east. The field site shall be higher than surrounding areas to allow drainage. The field site shall be designed with a slope of 0.5% to sideline drainage. The field shall be permanently striped for soccer but shall be designed to accommodate football, lacrosse, rugby, and ultimate Frisbee. The field shall meet the standards set forth in the SUGGESTED GUIDELINES for the ESSENTIAL ELEMENTS of SYNTHETIC TURF SYSTEMS, latest Edition, including requirements for soccer fields. The field shall be a tufted infill system that consists of a drainage layer, a multi -layered backing system, and resilient "grass" blades that are infilled with a granular filler to resemble natural turf. A soils engineer shall make recommendations regarding field design and shall participate in the design of the field. A geotextile separation fabric shall be installed to separate the subsoil from the base. The geotextile fabric shall be placed over the entire sub -grade and within the pipe trenches prior to the installation of the base materials. The field shall be drained through a series of sub -drain pipes connected to a collection system surrounding the field. The drainage system shall provide sufficient drainage of the entire playing surface to meet local conditions for at least a minimum 5 -year design storm frequency. The expected drainage performance evaluation and the systems used shall undergo an independent engineering analysis. An adequate factor of safety shall be utilized as the permeability of both the field surface and the base materials will typically decrease over the life of the field. The field shall have an unbound dynamic base capable of compaction yet allowing free draining. The base will be designed for specific site conditions to accommodate local soils, groundwater levels and the local climate. The base shall be a minimum of 6 inches in thickness. Impact Absorption (force reduction): Range of g -max for a new field installation shall fall between 85 and 160 at each test point (6 test points minimum) with testing at installation. The maximum g -max shall be a maximum value of 200 at each test point (6 tests minimum) for the life of the warranty. The field shall meet or exceed all requirements and characteristics contained in Table 1 - Base Materials, Table 2 — Turf Characteristics for Infill Systems, Table 5 Infill Properties, Table 7b - Performance Guidelines for Soccer Fields and other applicable tables in the Exhibit K-1 SUGGESTED GUIDELINES for the ESSENTIAL ELEMENTS of SYNTHETIC TURF SYSTEMS, latest Edition. The field shall be supplied with a sweeper and an ATV to pull the sweeper. The sweeper shall be as recommended by the turf manufacturer. The Warranty for the synthetic turf field system shall be a minimum of 5 years. Warranty conditions shall include the following: • Acceptable uses for the field (Soccer, football, lacrosse, rugby, ultimate Frisbee) • Expected number of yearly hours of use of the field (1,000 hours per year) • Type of shoes used (Soccer, football, lacrosse, rugby, ultimate Frisbee). No track spikes and only plastic molded athletic shoes • Excessive UV degradation to protect fading • Color match within specifications • Excessive fiber wear • Wrinkling and panel movement • Shock absorbency (g -max) • Seam integrity The field shall include measures to prevent car access, such as a trees or bollards. A minimum four -foot separation shall be provided between the playing field surface and any trees, bleachers or accessories. This area shall be constructed of a durable fall safe surface, which could include artificial turf. Two 20 -foot, five tier, bleachers shall be provided on the south side of the field. Center bleachers for players shall be provided on south side and shall consist of a total of four 15 -foot benches and two of the benches shall contain a fixed shade cover. Benches and bleachers shall be aluminum with welded aluminum supports. All bolts shall be galvanized. Benches and bleachers shall be designed to meet the 2016 California Building Code for safety. The field and spectator viewing areas shall be designed to be ADA accessible. Existing lighting shall be reviewed and adjusted to provide for the field to a minimum level of 30 footcandles and shall have a half -bright setting which allows 50 percent of the lights to be used. Lighting shall be high efficiency lighting Musco Light -Structure Green or better. Lighting shall meet the Lighting Standards of the US Soccer Foundation for Standard Play. Field shall include an LED display, 10 feet long by 4 feet tall, electronic scoreboard, with spot for SOMO Village logo and no video capability. Exhibit K-1 Exhibit L-1 Soccer Field Site Depiction [Attached] Exhibit L-1 Exhibit M-1 [Form] Improvement Agreement [Attached] Exhibit M-1 RLMQVE ERI" TO GET BLEA{ CLOSER TO N 5 ROW BLEA( 70 YRD %120 SOCCER FIELD 5 FOOT WIDE SAFETY BORDE 50 YRD X 70 Y U-12 SOCCER! NEW SCOREB[ RELOCATED LIGHT POLE LOCATION SYNTHETIC TURF SOFTBALL OUTFIELD 50 YRD X 70 YRD U-12 SOCCER FIELD SPORTS FIELD POLE. POLE TO BE D AND REPLACED IN CATION. OTHER SPORTS MTING TO BE ADJUSTED WILL BE LIGHTED Y 25' CONCRETE PAD WITH -- 30' 35' 3 - 8 FOOT PLAYER NORTH BENCHES — OFFICIALS AREA o to za Athletic Field 'improvements Concept UWCMLE ARCHIIERURE 4e-S+SS Sunrise Park IM CML ENGINEERING SPOREEANN NG3UES GN M AWwN9, San. [krµ LA 45030 CODDING Rohnert Park CA � VERDE DESIGN di 40B.9B5..]a0 May 12, 2017 ,...<uaaas.^2ea� RECORDING REQUESTED BY ) AND WHEN RECORDED MAIL TO: ) ) City of Rohnert Park ) 130 Avram Avenue ) Rohnert Park, California 94928-2486 ) Attention: City Clerk ) (Space Above This Line for Recorder's Use Only) Exempt from recording fee per Gov. Code § 27383. IMPROVEMENT AGREEMENT CITY OF ROHNERT PARK SOMO FIELD SOCCER FIELD WORK THIS IMPROVEMENT AGREEMENT (the "Agreement") is made and entered into on this _ day of _2018 (the "Effective Date") by and between SOMO VILLAGE, LLC, a Delaware limited liability company, formerly known as SONOMA MOUNTAIN VILLAGE, LLC ("Developer"), and the CITY OF ROHNERT PARK, a California municipal corporation ("City"). Developer and City are sometimes referred to herein as a "Party" and collectively as the "Parlics." RECITALS A. City, Developer and KDRP LLC, previously entered into that certain Development Agreement, dated as of September 14, 2010 and recorded on October 1, 2010 as Instrument Number 2010084467 in the Official Records of Sonoma County, as amended by that certain First Amendment to Development Agreement, recorded on June 28, 2012 as Instrument Number 2012061268 in the Official Records of Sonoma County and by that Second Amendment to Development Agreement recorded on December 11, 2012 as Instrument Number 2012126932, in the Official Records of Sonoma County and subject to those certain letter agreements dated June 6, 2016 and December 29, 2016 (collectively, the "Original Development Agreement"). B. Developer and KDRP LLC owned the Property as tenants in common upon entering the Development Agreement. On July 21, 2016, Developer acquired all of KDRP LLC's rights and assumed all its obligations under the Development Agreement. Developer was formerly known as Sonoma Mountain Village, LLC and changed its name to SOMO Village, LLC upon converting from a California limited liability company to a Delaware limited liability company on December 30, 2016. C. The Parties entered into that certain Partial Assignment and Assumption and Guaranty of Development Agreement and Consent to Transfer of Real Property (the "Assignment Agreement"), whereby, (1) Developer transferred a portion of the Property to SVC, while retaining all obligations under the Development Agreement, except for those obligations regarding improvements to existing structures on the transferred property; and (2) Developer deposited the sum of $2.3 million with City to fund its soccer field obligations, with the use of such deposit to be governed by that certain Escrow and Funding Agreement, entered into as April 24, 2017, by and between SOMO Village, LLC and City (the "Escrow Agreement"). D. Section 4.11(B) of the Development Agreement, among other things, requires that Developer complete construction of a soccer field and installation of equipment for such soccer field upon one of two pre -designated site locations owned by the Developer by December 31, 2016. The Parties have since entered into two letter agreements, the Assignment Agreement and the Escrow Agreement, which provide for the following: (1) modification of Developer's obligation to construct a soccer field on the Property to the construction of an all-weather soccer 1 field at Sunrise Park, which is already owned by the City; (2) two additional payments from Developer to City in the amount of $250,000 each; and (3) a deposit of $2.3 million by Developer with City to fund its obligations related to the soccer field. E. On , 2018, the City's City Council adopted Ordinance No. approving that certain Third Amendment to Development Agreement dated , 2018 (the "Third Amendment"). The Original Development Agreement, as amended by the Third Amendment, may be referred to as the "Develo mp ent Agreement" in this Agreement. F. The Third Amendment, among other things: (1) documents the Parties' agreement to move the location of the Soccer Field to Sunrise Park; and (2) sets forth terms regarding the time -frame, funding, and remedies for non-compliance regarding Developer's design and construction of the Soccer Field. F. The Parties have also entered into an Amended and Restated Escrow Agreement to conform the Escrow Agreement to the terms of the Development Agreement, including, without limitation, to provide that: (1) the Construction Funds (as defined in the Escrow Agreement) may be increased per the terms of the Development Agreement; and (2) the Construction Funds may be used by City in the event of a breach under the Development Agreement or this Improvement Agreement. F. Pursuant to the terms of the Development Agreement, Developer has submitted plans, specifications and drawings for the Soccer Field Work (as defined in the Development Agreement) prepared by Verde Design, Inc. and dated 2018 (hereinafter collectively referred to as the "Improvement Plans"), which Improvement Plans have been approved by the City Engineer. The Soccer Field Work is referred to as the "Improvements" in this Agreement. G. City and Developer desire to provide for certain additional terms and conditions relating to the construction and installation of the Soccer Field Work in accordance with the Improvement Plans as set forth in this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the faithful performance of the terms and conditions set forth in this Agreement, the parties hereto agree as follows: 1. Purpose. The purpose of this Agreement is to guarantee completion of the Improvements and ensure satisfactory performance by Developer of Developer's obligations to satisfy the Conditions. 2. Property Subject to Agreement. The property which is the subject of this Agreement is located in the City of Rohnert Park, Sonoma County, California, and is described as Assessor's Parcel No. _, in the Sonoma County Records (the "PropertX"). 3. Duty to Install Improvements. Developer will construct, install and complete, or cause to be constructed, installed and completed, at the Developer's sole cost and expense, the Improvements, in accordance with the Improvement Plans and to the satisfaction of the City Engineer, in his/her reasonable discretion. Developer will also supply all labor and materials therefor, all in strict accordance with the terms and conditions of this Agreement and the Development Agreement. The construction, installation and completion of the Improvements and all labor and materials furnished in connection therewith are hereinafter referred to collectively as the "Work." City shall not be responsible or liable for the maintenance or care of the Improvements until City formally approves and accepts them in accordance with its policies and procedures. City shall 2 exercise no control over the Improvements until approved and accepted. Any use by any person of the Improvements, or any portion thereof, shall be at the sole and exclusive risk of the Developer at all times prior to City's acceptance of the Improvements. Developer shall maintain all the Improvements in a state of good repair until they are completed by Developer and approved and accepted by City. It shall be Developer's responsibility to initiate all maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work when notified to do so by City. If Developer fails to properly prosecute its maintenance obligation under this section, City may do all work necessary for such maintenance and the cost thereof shall be the responsibility of Developer and its surety, if applicable, under this Agreement. City shall not be responsible or liable for any damages or injury of any nature in any way related to or caused by the Improvements or their condition prior to acceptance. 4. Completion Date. Developer will complete the Work by December 31, 2019. All Work will be completed in a good and workmanlike manner in accordance with accepted design and construction practices. 5. Estimated Cost of Work. The estimated cost of the Work is [ESTIMATED COST OF WORK TO BE INSERTED AFTER PLANS ARE COMPLETE AND CONSTRUCTION CONTRACT IS EXECUTED]. Notwithstanding this estimate, Developer hereby acknowledges and agrees that (a) the actual costs to complete the Work may significantly exceed this estimate, (b) this estimate in no way limits Developer's financial obligation, and (c) that Developer is obligated to complete the Work at its own cost, expense, and liability. 6. Modifications to the Pians. Approval of this Agreement by City does not release Developer of its responsibility to correct mistakes, errors or omissions in the Improvement Plans. If, at any time, in the opinion of the City Engineer, in his/her reasonable discretion, the Improvement Plans are deemed inadequate in any respect Developer agrees to make such modifications, changes or revisions as necessary in order to complete the Work in a good and workmanlike manner in accordance with accepted design and construction standards. 7. Repairs. Developer agrees to repair or have repaired in a timely manner at its sole cost and expense all public roads, streets, or other public or private property damaged as a result of or incidental to the Work or in connection with the development of the Property or to pay to the property owner of any damaged road, street or property the full cost of such repair. In addition, Developer shall obtain the written acceptance of such repair or payment from any owner whose private property was repaired by Developer or to whom Developer has paid the full cost of such repair in accordance with this Section 7. City shall be under no obligation whatsoever to accept the Work completed under this Agreement until such time as all repairs have been completed or have been paid for and written acceptances have been provided to the City Engineer, except as otherwise provided in section 12.1. 8. Foreman or Superintendent. Developer shall give personal attention to the Work. A competent foreman or superintendent, satisfactory to the City Engineer, in his/her reasonable discretion, with authority to act for and on behalf of Developer, shall be named in writing by Developer prior to commencement of the Work, shall be present on the Property during the performance of the Work and may not be changed without the advance notification to and satisfaction and concurrence of the City Engineer. 9. Examination of Work. All of the Work shall be performed to the satisfaction of the City Engineer, in his/her reasonable discretion. The City and its authorized agents shall, at all times during the performance of the Work, have free access to the Work and shall be allowed to examine the Work and all materials used and to be used in the Work. 10. City's Inspection, Administration and Testing Costs. Developer shall pay to City the actual cost for all inspection, administration and testing services furnished by City in connection with this Agreement, including those performed by consultants under contract with the City (the "City Costs"). City agrees not to double charge Developer (through the imposition of both a processing fee and a consultant charge) for any individual monitoring, inspection, testing or evaluation service. In addition, City agrees to limit its use of outside consultants to those reasonably necessary or desirable, as determined by the City Manager or his designee in his reasonable discretion, to accomplish the requisite inspection, administration and monitoring. The estimated cost for the inspection, administration and testing services is Dollars (S ) (the "Estimated Cost"). Concurrently with the execution of this Agreement, Developer shall deposit an amount equal to the Estimated Cost with City for the payment of the City Costs. In the event that the Estimated Cost is insufficient to cover the actual City Costs incurred, Developer shall, upon notice in writing by the City Engineer, deposit such additional amount as may be required to pay the City Costs. Any amount of the Estimated Cost, initial deposit or additional amounts deposited remaining after payment of all City Costs will be returned to Developer. City may, at its discretion, deposit such funds in an interest-bearing account and retain any and all interest earned. 11. Completion of Work. After Developer (a) completes the Work in accordance with the Improvement Plans and the terms and conditions of this Agreement, (b) repairs any road, street, or private or public property damaged as a result of the Work or pays the full cost of such repair to the owner whose property was damaged and (c) obtains the written acceptance of such repair or payment from any owner whose private property was repaired by Developer or to whom Developer paid the full cost of such repair, Developer will provide City with a written notice of completion, together with copies of all written acceptances. 12. Final Acceotance. 12.1 Notice of Completior►. Within three (3) business days of receipt of Developer's written notification pursuant to Section 11 above, City Engineer shall inspect the Work and repairs and review the written acceptances, if any, and send Developer a written notice stating whether the Work and repair are complete to the satisfaction of the City Engineer, in his/her reasonable discretion, and whether the written acceptances have been provided. If the Work and repair are, in the opinion of the City Engineer, not complete and satisfactory, and/or written acceptances have not been provided, the City Engineer will list the deficiencies that must be corrected to find the Work and repair complete and satisfactory. Upon satisfactory completion of the Work and repair and submittal of written acceptances, the City Engineer will send Developer a written notice of satisfactory completion. The requirement for written acceptances may be waived by the City Engineer, in his/her reasonable discretion, if Developer has made commercially reasonable efforts to obtain such acceptances. City Engineer's failure to respond to Developer's written notification within ten (10) business days will be deemed acceptance of the Work under this Agreement. 12.2 Acceptance of Im rovements. After sending Developer a written notice of satisfactory completion or upon failing to respond within ten (10) business days pursuant to Section 12.1, the City Engineer shall within three (3) business days recommend approval of the Improvements to the City Manager. The City Manager shall make the final determination as to approval, in his reasonable discretion and thereafter, shall recommend formal acceptance to the City Council. Upon acceptance by the City Council, the City Engineer shall record a notice of acceptance, in a form to be approved by the City Attorney, in the Official Records of Sonoma County. 13. f intentionally omitted 14. [intentionally omitted] 15. Security. Developer has deposited the amount of $2.3 million dollars in cash with City pursuant to the terms of the Amended and Restated Escrow Agreement as initial security for the Work. Developer shall furnish and deliver to City, within the times set forth below, the following additional security: 15.1 Additional Security. Within five (5) business days after the execution of the Construction Contract (as defined in the Third Amendment), Developer shall furnish and deliver one of the following forms of additional security for the performance of the Work, the selection of which form of security shall be in the sole discretion of Developer: a) Additional Cash Deposit. Developer shall deposit the full amount of the Shortfall (as defined in the Third Amendment) in cash with City pursuant to the terms of the Amended and Restated Escrow Agreement. In the event of a breach of this Agreement or the Development Agreement, City may use such funds pursuant to the terms of the Amended and Restated Escrow Agreement to complete the Work. b) Letter of Credit. Developer shall obtain, in the amount of the Shortfall, a Letter of Credit for the benefit of City in a form acceptable to the City Attorney, in the City Attorney's reasonable discretion. In the event of a breach of this Agreement or the Development Agreement, City may use draw on the Letter of Credit to complete the Work. The Letter of Credit shall be released by the City effective upon the date of recordation of the notice of acceptance of the improvements as described in Section 12.2 and Developer's delivery of the Warranty Bond described in Section 15.2 c) Performance Bond. Developer shall furnish and deliver a performance surety bond issued by a surety company duly and regularly authorized to do general surety business in the State of California, or such other surety as may be acceptable to the City Attorney, in the amount of the Construction Contract, which bond must be in a form acceptable to the City Attorney, in the City Attorney's reasonable discretion. The bond shall be conditioned upon the faithful performance of this Agreement with respect to the Work and shall be released by the City effective upon the date of recordation of the notice of acceptance of the improvements as described in Section 12.2 and Developer's delivery of the Warranty Bond described in Section 15.2. 15.2 Warranty Bond. Developer shall furnish and deliver a warranty bond issued by a surety company duly and regularly authorized to do general surety business in the State of California, or such other surety as may be acceptable to the City Attorney, in the amount of [FIFTEEN PERCENT OF THE CONSTRUCTION COST PER CITY'S MUNICIPAL CODE] upon acceptance of the Improvements and prior to release of the Performance Bond. The bond shall be in a form acceptable to the City Attorney and shall guarantee and warranty the Work for a period of one (1) year following the date of recordation of the notice of acceptance of the improvements against any defective work or labor done, or defective materials furnished. 16. [intentionally omitted]. 17. No Waiver by City. Inspecting of the Work, or approval of any portion of the Work prior to full performance of the Work, or a statement by an officer, agent or employee of the City indicating the work complies with this Agreement, or acceptance of any portion of the Work, or any combination of all of these acts shall not relieve Developer or its obligation to fulfill this Agreement; nor is the City by these acts prohibited from bringing an action for damages arising from the failure to comply with this Agreement. Notwithstanding the foregoing, if the City, upon default by Developer, exercises its right to perform the Work pursuant to Section 28 of this Agreement and exercises on the security provided by Developer pursuant to Section 15, 5 Developer will have no further obligations to complete the Work under this Agreement. The following provisions of this Agreement will, however, remain in full force: Sections 21 and 22. 18. Warranty Period, Repair and Reconstruction. Without limiting the foregoing, Developer expressly warrants and guarantees all work performed under this Agreement and all materials used in the Work for a period of one (1) year after the date of recordation of the notice of acceptance of the improvements in accordance with Section 12. If, within this one (1) year period, any Improvement or part of any Improvement installed or constructed, or caused to be installed or constructed by Developer, or any of the work done under this Agreement, fails to fulfill any of the requirements of the Improvement Plans or this Agreement, Developer shall, without delay and without cost to City, repair, replace or reconstruct any defective or otherwise unsatisfactory part or parts of the Work or Improvement to the satisfaction of the City Engineer. Should Developer fail to act promptly or in accordance with this requirement, or should the exigencies of the situation require repairs, replacements or reconstruction to be made before Developer can be notified, City may, at its option, make the necessary repairs, replacements or perform the necessary reconstruction and Developer shall pay to the City upon demand the actual cost of such repairs, replacements or reconstruction. 19. Erosion Control. Pursuant to Rohnert Park Municipal Code Chapter 15.52, Developer shall be responsible for the control of erosion on the Property and shall prevent its entry into the storm drainage system. 20. Developer Not Agent of City. Neither Developer nor Developer's contractors, subcontractors, agents, officers, or employees are agents, partners, joint venturers or employees of City and the Developer's relationship to the City, if any, arising herefrom is strictly that of an independent contractor. Developer's contractors and subcontractors are exclusively and solely under the control and dominion of Developer. Further, there are no intended third party beneficiaries of any right or obligation assumed by the Parties. 21. Indemnification. Developer agrees to indemnify, defend and hold the City, its elective and appointed boards, commissions, officers, agents, employees and consultants, harmless from and against any and all claims, liabilities, losses, damages or injuries of any kind (collectively, "Claims") arising out of Developer's, or Developer's contractors', subcontractors', agents' or employees', acts, omissions, or operations under this Agreement, including, but not limited to, the performance of the Work, whether such acts, omissions, or operations are by Developer or any of Developer's contractors, subcontractors, agents or employees, except to the extent any Claim arises from the gross negligence or intentional acts or omissions by the City. This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys' fees, and related costs or expenses, and the reimbursement of City, its elected officials, officers, employees, and/or agents for all legal expenses and costs incurred by each of them. The aforementioned indemnity shall apply regardless of whether or not City has prepared, supplied or approved plans and/or specifications for the Work or Improvements and regardless of whether any insurance required under this Agreement is applicable to any Claims. The City does not and shall not waive any of its rights under this indemnity provision because of its acceptance of the bonds or insurance required under the provisions of this Agreement. Developer's obligation to indemnify City shall survive the expiration or termination of this Agreement. 22. Insurance. Developer shall maintain Comprehensive Liability Insurance protecting the City from incidents as to bodily injury liability and property damage liability that may occur as a result of the Work and additional repairs. Developer shall provide certificate(s) of insurance and endorsements to City before any Work commences. The insurance policy shall contain, or be endorsed to contain, the following provisions: 0 (1) The City, its officers, elected officials, employees, consultants, agents and volunteers are to be covered as additional insureds as respects liability arising out of activities performed by or on behalf of Developer. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, elected officials, employees, consultants, agents and volunteers. (2) The amounts of public liability and property damage coverage shall not be less than $3,000,000 (Three Million Dollars) per occurrence for bodily injury, personal injury and property damage. (3) The insurance shall be maintained in full force until the work has been completed to the satisfaction of the City Engineer. (4) The insurance policy shall provide for 30 days notice of cancellation to the City. The policy shall not be cancelled earlier than nor the amount of coverage be reduced earlier than 30 days after the City receives notice from the insurer of the intent of cancellation or reduction. (5) Any failure to comply with the reporting provisions of the policy shall not affect the coverage provided to the City, its officers, elected officials, employees, consultants, agents and volunteers. (6) Developer's insurance coverage shall be primary insurance as respects the City, its officers, elected officials, employees, consultants, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, elected officials, employees, consultants, agents and volunteers shall be in excess of Developer's insurance and shall not contribute to it. (7) Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: (a) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its elected officials, officers, employees, agents, and volunteers; or (b) Developer and its contractors shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses. In the event that Developer's insurance is cancelled, Developer shall provide replacement coverage or all work must cease as of the cancellation date until replacement insurance coverage is provided. 23. Workers' Compensation Insurance. Developer shall provide, or cause to be provided, Workers' Compensation insurance as required by law, and shall cause its contractors and their subcontractors, agents and representatives to also maintain Workers' Compensation insurance as required by law. No Work shall commence until such Workers' Compensation insurance is obtained and in full force and effect. 24. Compliance with Laws. Developer shall fully comply with all federal, state and local laws, ordinances and regulations in the performance of this Agreement. Developer shall, at its own cost and expense, obtain all necessary permits and licenses for the Work, give all necessary notices, pay all fees and taxes required by law and make any and all deposits legally required by those public utilities that will serve the development on the Property. Copies and/or proof of payment of said permits, licenses, notices, fee and tax payments and deposits shall be furnished to the City Engineer upon request. 25. Encroachment Permits. Developer shall obtain, at its sole cost and expense, any encroachment permits required by the City in order to perform the Work. 26. Payments. Developer agrees that it will pay, when due, all those furnishing labor or materials in connection with the Work. 27. Notice of Breach and Default. The occurrence of any of the following constitutes a breach and default of this Agreement: (1) Developer refuses or fails to complete the Work within the time set forth herein or abandons the Work. (2) Developer assigns the Agreement without the prior written consent of City. (3) Developer is adjudged bankrupt or makes a general assignment for the benefit of creditors, or a receiver is appointed in the event of Developer's insolvency. (4) Developer or Developer's contractors, subcontractors, agents or employees, fail to comply with any terms or conditions of this Agreement, after City provides Developer written notice specifying such breach and an opportunity to cure, which cure period shall not exceed thirty (30) days. (5) Any delay in the construction of any portion of the Work or repairs, which in the reasonable opinion of the City Engineer, endangers public or private property. (6) Developer is in breach of the Third Amendment or the Amended and Restated Escrow Agreement, after City provides Developer written notice specifying such breach and an opportunity to cure, which cure period shall not exceed thirty (30) days. The City may serve written notice of breach and default upon Developer and the financial institution holding the bonds. 28. Breach of Agreement, Performance by City. If the City gives Developer notice, under Section 27, of breach and default of this Agreement, the City may proceed to complete the Work by contract or other method the City considers advisable, using the security set forth in Section 15. 1, as applicable. City, without liability for doing so, may take possession of and utilize in completing the Work and repairs, if any, such materials and other property belonging to Developer as may be on or about the Property and necessary for completion of the work. In the event of default, the financial institution holding the bonds shall also be liable to City to pay the face amount of the bonds, as specified under Section 15. 29. Remedies. City may bring legal action to compel performance of this Agreement and recover the costs of completing the Work and/or repairs, if any, including City's administrative and legal costs. Developer agrees that if legal action is brought by City under this section of the Agreement, Developer shall pay all of the costs of suit, reasonable attorney fees, arbitration costs and such other costs as may be determined by the court or arbitrator. No failure on the part of City to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that City may have hereunder. 30. Final Drawings. Upon completion of the Work and prior to final acceptance, Developer shall deliver to City a set of "as -built" drawings. These drawings shall be in a form acceptable to the City Engineer, shall be certified as being "as -built" and shall reflect the Work as 8 actually constructed, with any and all changes incorporated therein. Said drawings shall be signed and sealed as accurate by the engineer of record. 31. Attomey Fees. Should any legal action or arbitration be brought by either party because of breach of this Agreement or to enforce any provision of this Agreement, the prevailing party shall be entitled to all costs of suit, reasonable attorney fees, arbitration costs and such other costs as may be determined by the court or arbitrator. 32. Notices. Formal written notices, demands, correspondence and communications between City and Developer shall be sufficiently given if. (a) personally delivered; or (b) dispatched by next day delivery by a reputable carrier such as Federal Express to the offices of City and Developer indicated below, provided that a receipt for delivery is provided; or (c) if dispatched by first class mail, postage prepaid, to the offices of City and Developer indicated below. Such written notices, demands, correspondence and communications may be sent in the same manner to such persons and addresses as either party may from time -to -time designate by next day delivery or by mail as provided in this section. City: City of Rohnert Park 130 Avram Avenue Rohnert Park, CA 94928 Attn: City Manager with a copy to: City of Rohnert Park 130 Avram Avenue Rohnert Park, CA 94928 Attn: City Attorney Developer: SOMO Village, LLC P.O. Box 7087 Cotati, CA 94931 Attn: Brad Baker with a copy to: SOMO Village, LLC 1400 Valley House Road, Ste 110 Rohnert Park, CA 94928 Attn: General Counsel Notices delivered by deposit in the United States mail as provided above shall be deemed to have been served two (2) business days after the date of deposit if addressed to an address within the State of California, and three (3) business days if addressed to an address within the United States but outside the State of California. 33. "Transfers; Assignments. Developer may assign its obligations under this Agreement to only with the prior written approval of the City. In connection with any such assignment, Developer and its assignee shall execute and deliver to City a written assignment and assumption agreement in a form acceptable to the City Attorney. 34. Bindink Upon Heirs, Successors and Assigns. The terms, covenants and conditions of this Agreement shall be binding upon all heirs, successors and assigns of the parties hereto; provided, however, that this Agreement shall not be binding upon a purchaser or transferee of any portion of the Property unless this Agreement has been assigned pursuant to Section 33, in which event this Agreement shall remain binding upon Developer. 35. Headinvs. Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants or conditions contained in this Agreement. 36. Severability. If any provision of this Agreement is held, to any extent, invalid, the remainder of this Agreement shall not be affected, except as necessarily required by the invalid provision, and shall remain in full force and effect. 37. Entire Agreement. The terms and conditions of this Agreement constitutes 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 both parties hereto. 38. Governing Law; Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of California, without reference to choice of law provisions. Any legal actions under this Agreement shall be brought only in the Superior Court of the County of Sonoma, State of California. 39. Authority. Each party executing this Agreement on behalf of a party represents and warrants that such person is duly and validly authorized to do so on behalf of the entity it purports to bind and if such party is a partnership, corporation or trustee, that such partnership, corporation or trustee has full right and authority to enter into this Agreement and perform all of its obligations hereunder. 40. Time is of the Essence. Time is of the essence of this Agreement and of each and every term and condition hereof. 41. Runs with the Land; Recordation. This Agreement pertains to and shall run with the Property. Upon execution, this Agreement shall be recorded in the Official Records of Sonoma County. IN WITNESS WHEREOF, this Third Amendment has been entered into by and between Developer and City as of the day and year first above written. Approved as to Form: By: _ City Attorney Attest: By: City Clerk CITY: City of Rohnert Park, a municipal corporation By: Darren Jenkins, City Manager Authorized by Ordinance No. approved by the Rohnert Park City Council on April_, 2018. [Signature Must be Notarized] DEVELOPER: SOMO Village, LLC, a Delaware limited liability company By: Name: Bradley E. Baker Title: Manager [Signature Must be Notarized] 10 ACKNOWLEDGMENTS A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF On 20_ before me, , Notary Public, personally appeared _ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: (seal) ****************************** A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF On 20_ before me, ., Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: (seal)