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City of Rohnert Park
SPECIAL Planning Commission Meeting
AGENDA
Thursday, March 29, 2018
6:00 P.M.
130 Avram Avenue, Rohnert Park
To Any Member of the Audience Desiring to Address the Planning Commission:
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.
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CALL TO ORDER
PLEDGE OF ALLEGIANCE
ROLL CALL (Adams Blanquie Borba Giudice Haydon___)
DECLARATION OF ABSENTION
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
AGENDA ITEMS
8.1 PUBLIC HEARING — DEVELOPMENT AGREEMENT AMENDMENT
(CONTINUED FROM THE MARCH 22, 2018 PLANNING COMMISSION
MEETING) - 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 5: 00 p.m. on April 9, 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 IIl)
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 29, 2018, Special Planning
Commission Meeting of the City of Rohnert Park was posted and available for review on March
23, 2018, at Rohnert Park City Hall, 130 Avram Avenue, Rohnert Park, California 94928. The
agenda is available on the Cid of Rohnert Park's web site at www.rpcit-y.org.
Signed this 23rd day of March, 2018 at Rohnert Park, California
City of Rohnert Park
Planning Commission Report
DATE:
March 29, 2018
ITEM NO:
8.1
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
Background: 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
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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:
Mary Grace 4wson, 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 29, 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. lncorporation 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 29, 2018, in conformance
with the notice provisions of Government Code §§ 65090 and 65091 and the requirements
of the Rohnert Park Municipal 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 29th day of March, 2018 by the City of
Rohnert Park Planning Commission by the following vote:
ADAMS
Attest:
AYES: NOES: ABSENT:
BLANQUIE BORBA _ GIUDICE
ABSTAIN:
HAYDON
Susan Adams, Chairperson, Rohnert Park Planning Commission
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.
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1.2 The following definitions set forth in Section 1.01 are hereby deleted in
their entirety: "Site", "Site 1", "Site 2", "Site I 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)(4). 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 Com letion. 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 RefyardinL: Soccer Field.
3.1 Amendment of Section 4.I1(B). Section 4.11(B) of the Development
Agreement is hereby amended and restated in its entirety to read as follows:
`13. Imp ovement of Offsite Soccer Field.
(1) Developer Obligation. 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 Agreement. 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)(1)(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
E
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 hi Exhibit K- 1, 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]
rel
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
Darrin Jenkins, City Manager
Authorized by Ordinance No. , adopted by the
City Council at its meeting of 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]
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.
Signature:
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.
(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
Kt MUYt CAIDIIP 0,0
10 GET BLEACHER
CLOSER TO MIDFIE
5 ROW BLEACHER
70 YRD X 120 YRC
SOCCER FIELD
5 FOOT WIDE —
SAFETY BORDER
50 YRD X 70 YRD
U-12 SOCCER FIEL!
NEW SCOREBOAR
Esn��.nw
CODDING
Athletic Field Improvements Concept
Sunrise Park
Rohnert Park, CA
RELOCATED LIGHT
POLE LOCATION
SYNTHETIC TURF
SOFTBALL OUTFIELD
50 YRD X 70 YRD
U-12 SOCCER FIELD
SPORTS FIELD
3
POLE. POLE TO BE
D AND REPLACED IN
CATION. OTHER SPORTS
MTING TO BE ADJUSTED
I WILL BE LIGHTED
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CNIL ENGINEERING
SPORT PW NING 8 DESIGN
T�59 D4 �rcu,'rP T00
Soma Ooro, G 95050
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VERDE DESIGN
409 995.7260
May 12, 2017
wwwverdededBNrc.cam
Exhibit M-1
[Form] Improvement Agreement
[Attached]
Exhibit M-1
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 "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 "Original Development A eement").
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 Ageement").
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
I
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 "Development Agreement" in this
Agreement.
F. The Third Amendment, among other things: (1) documents the Parties'
agreement to move the location of the Soccer Field to Sunrise Park; and (2) sets forth terms
regarding the time -frame, funding, and remedies for non-compliance regarding Developer's
design and construction of the Soccer Field.
F. The Parties have also entered into an Amended and Restated Escrow Agreement
to conform the Escrow Agreement to the terms of the Development Agreement, including,
without limitation, to provide that: (1) the Construction Funds (as defined in the Escrow
Agreement) may be increased per the terms of the Development Agreement; and (2) the
Construction Funds may be used by City in the event of a breach under the Development
Agreement or this Improvement Agreement.
F. Pursuant to the terms of the Development Agreement, Developer has submitted
plans, specifications and drawings for the Soccer Field Work (as defined in the Development
Agreement) prepared by Verde Design, Inc. and dated , 2018 (hereinafter
collectively referred to as the "Improvement Plans"), which Improvement Plans have been
approved by the City Engineer. The Soccer Field Work is referred to as the "!Mrovements" 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 IMrovements. 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 Plans. Approval of this Agreement by City does not release
Developer of its responsibility to correct mistakes, errors or omissions in the Improvement Plans.
If, at any time, in the opinion of the City Engineer, in his/her reasonable discretion, the
Improvement Plans are deemed inadequate in any respect Developer agrees to make such
modifications, changes or revisions as necessary in order to complete the Work in a good and
workmanlike manner in accordance with accepted design and construction standards.
7. Repairs. Developer agrees to repair or have repaired in a timely manner at its sole
cost and expense all public roads, streets, or other public or private property damaged as a result
of or incidental to the Work or in connection with the development of the Property or to pay to
the property owner of any damaged road, street or property the full cost of such repair. In
addition, Developer shall obtain the written acceptance of such repair or payment from any owner
whose private property was repaired by Developer or to whom Developer has paid the full cost of
such repair in accordance with this Section 7. City shall be under no obligation whatsoever to
accept the Work completed under this Agreement until such time as all repairs have been
completed or have been paid for and written acceptances have been provided to the City
Engineer, except as otherwise provided in section 12.1.
8. Foreman or Superintendent. Developer shall give personal attention to the Work.
A competent foreman or superintendent, satisfactory to the City Engineer, in his/her reasonable
discretion, with authority to act for and on behalf of Developer, shall be named in writing by
Developer prior to commencement of the Work, shall be present on the Property during the
performance of the Work and may not be changed without the advance notification to and
satisfaction and concurrence of the City Engineer.
9. Examination of Work. All of the Work shall be performed to the satisfaction of
the City Engineer, in his/her reasonable discretion. The City and its authorized agents shall, at all
times during the performance of the Work, have free access to the Work and shall be allowed to
examine the Work and all materials used and to be used in the Work.
10. City's Ins ectian 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
3
the City (the "City Costs"). City agrees not to double charge Developer (through the imposition
of both a processing fee and a consultant charge) for any individual monitoring, inspection,
testing or evaluation service. In addition, City agrees to limit its use of outside consultants to
those reasonably necessary or desirable, as determined by the City Manager or his designee in his
reasonable discretion, to accomplish the requisite inspection, administration and monitoring. The
estimated cost for the inspection, administration and testing services is Dollars
($ ) (the "Estimatcd 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 Acceptance.
12.1 Notice of Completion. Within three (3) business days of receipt of
Developer's written notification pursuant to Section 11 above, City Engineer shall inspect
the Work and repairs and review the written acceptances, if any, and send Developer a
written notice stating whether the Work and repair are complete to the satisfaction of the
City Engineer, in his/her reasonable discretion, and whether the written acceptances have
been provided. If the Work and repair are, in the opinion of the City Engineer, not
complete and satisfactory, and/or written acceptances have not been provided, the City
Engineer will list the deficiencies that must be corrected to find the Work and repair
complete and satisfactory. Upon satisfactory completion of the Work and repair and
submittal of written acceptances, the City Engineer will send Developer a written notice
of satisfactory completion. The requirement for written acceptances may be waived by
the City Engineer, in his/her reasonable discretion, if Developer has made commercially
reasonable efforts to obtain such acceptances. City Engineer's failure to respond to
Developer's written notification within ten (10) business days will be deemed acceptance
of the Work under this Agreement.
12.2 Acceptance of Improvements. After sending Developer a written notice
of satisfactory completion or upon failing to respond within ten (10) business days
pursuant to Section 12.1, the City Engineer shall within three (3) business days
recommend approval of the Improvements to the City Manager. The City Manager shall
make the final determination as to approval, in his reasonable discretion and thereafter,
shall recommend formal acceptance to the City Council. Upon acceptance by the City
Council, the City Engineer shall record a notice of acceptance, in a form to be approved
by the City Attorney, in the Official Records of Sonoma County.
13. (intentionally omitted
14. [intentionally omitted']
15. Security. Developer has deposited the amount of $2.3 million dollars in cash
with City pursuant to the terms of the Amended and Restated Escrow Agreement as initial
4
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 WarrantyBond. 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,
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:
(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.
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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 Cita. 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. Attorney Fees. Should any legal action or arbitration be brought by either party
because of breach of this Agreement or to enforce any provision of this Agreement, the prevailing
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 i£ (a) personally delivered; or (b)
dispatched by next day delivery by a reputable carrier such as Federal Express to the offices of
City and Developer indicated below, provided that a receipt for delivery is provided; or (c) if
dispatched by first class mail, postage prepaid, to the offices of City and Developer indicated
below. Such written notices, demands, correspondence and communications may be sent in the
same manner to such persons and addresses as either party may from time -to -time designate by
next day delivery or by mail as provided in this section.
City: City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Manager
with a copy to: City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Attorney
Developer: SOMO Village, LLC
P.O. Box 7087
Cotati, CA 94931
Attn: Brad Baker
with a copy to: SOMO Village, LLC
1400 Valley House Road, Ste 110
Rohnert Park, CA 94928
Attn: General Counsel
Notices delivered by deposit in the United States mail as provided above shall be deemed to have
been served two (2) business days after the date of deposit if addressed to an address within the
State of California, and three (3) business days if addressed to an address within the United States
but outside the State of California.
33. Transfers; Assignments. Developer may assign its obligations under this
Agreement to only with the prior written approval of the City. In connection with any such
assignment, Developer and its assignee shall execute and deliver to City a written assignment and
assumption agreement in a form acceptable to the City Attorney.
34. Binding pon 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. Ileadings. 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.
M
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
IM
Darren Jenkins, City Manager
Authorized by Ordinance No. approved by the
Rohnert Park City Council on April 1018.
[Signature Must be Notarized]
DEVELOPER:
SOMO Village, LLC, a Delaware limited liability
company
By:
Name: Bradley E. Baker
Title: Manager
[Signature Must be Notarized]
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ACKNOWLEDGMENTS
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On 20_ before me, , Notary Public, personally
appeared , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
(seal)
******************************
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On _ _ 20_ before me, , Notary Public, personally
appeared , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _.` (seal)