2018/09/27 Planning Commission Agenda PacketE3
City of Rohnert Park
Planning Commission
AGENDA
Thursday, September 27, 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 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 May 30,
2018 and June 14, 2018
AGENDAITEMS
8.1 PUBLIC HEARING - DEVELOPMENT AGREEMENT — File No. PROJ16-
0001— Chris Scerri/Advanced Building Solutions — Consideration of Resolution
2018-38, recommending to the City Council approval of a Development
Agreement between the City of Rohnert Park and Redwood Crossings RP, LLC
and Sonoma Media Investments, LLC, for development of the Redwood
Crossings project (APN 143-040-135)
CEQA: Due to the proposed changes to the general plan and zoning
designations, an Initial Study was prepared to determine whether the proposed
project, including the City's proposed facilities, would have a significant
adverse effect on the environment. Mitigation measures that apply specifically
to the proposed project were included for air quality, biological resources,
greenhouse gas emissions, noise, and traffic. There are no new significant
impacts and no additional CEQA analysis is required in connection with the
Development Agreement.
8.2 DISCUSSION ITEM: Station Avenue Update
8.3 DISCUSSION ITEM: Affordable Housing Update
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 October 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 35.102.35.104 AD Title III)
CERTIFICATION OF POSTING OF AGENDA
I, Kelsey Bracewell, Development Services Administrative Assistant for the City of Rohnert
Park, declare that the foregoing notice and agenda for the September 27, 2018, Planning
Commission Meeting of the City of Rohnert Park was posted and available for review on
September 21, 2018 at Rohnert Park City Hall, 130 Avram Avenue, Rohnert Park, California
94928. The agenda is available on the City of Rohnert Park's web site at www.rpcily.org.
Signed this 21 st day of September, 2018 at Rohnert Park, California.
.. +TTTIrp-
City of Rohnert Park
Planning Commission Report
DATE: September 27, 2018
ITEM NO: 8.1
SUBJECT Public Hearing: Development Agreement between the City and Redwood
Crossings RP LLC and Sonoma Media Investments, LLC (File No. PLDA 18-
0006)
LOCATION: Area on southeast corner of Dowdell Avenue and Business Park Drive (APN
143-040-135)
APPLICANT: Chris Scerri for Redwood Crossings RP LLC
Earlier this year, the Planning Commission recommended that the City Council approve a
General Plan Amendment and Rezone on this property to allow for the construction of a multi-
family housing complex. The City Council reviewed the Planning Commission's
recommendation in July. While the City Council concurred with appropriateness of the General
Plan Amendment and Rezone, Council directed staff and the applicant to negotiate a
development agreement that provided more certainty with respect to the look and design of the
project, and that mitigated the impacts of introducing new residences west of Highway 101 and
the provided consideration for affordable housing.
Based on this direction, the applicant, Redwood Crossings RP and the property owner, Sonoma
Media Investments submitted an application and worked with staff to negotiate a development
agreement. As negotiated; the development agreement includes the following provisions:
• Conceptual site plan and architectural style sheet of 156 -unit project as an exhibit.
Provisions within the DA require that any subsequent Site Plan and Architectural Review
(SPAR) submittals are in substantial conformance with this site plan exhibit.
• Park contribution of $8,956 per unit based on the in -lieu fee park requirements of the
Municipal Code.
Public service fee payment of $823.54 per unit per year (subject to a CPI escalator).
Payment of an affordable housing rental fee as may be adopted by the City Council or, if
not adopted, a contribution in the amount of $3.23 per square feet (which is the rental
housing fee that the Commission reviewed and recommended earlier this year).
Staff recommends that the Planning Commission conduct a public hearing and forward a
Page 1
recommendation of approval to the City Council to approve the Development Agreement
concurrent with approval of any general plan amendment or rezoning of the subject parcel.
BACKGROUND
The subject site (see Figure 1) is located on the west side of Rohnert Park proximate to the
Martin Avenue business park area. The site is located adjacent to Dowdell Avenue and south of
Business Park Drive. The parcel is currently owned by Sonoma Media Investments, the publisher
of the Press Democrat newspaper. The applicant, Chris Sherri of Redwood Crossings RP wishes
to purchase the site from the Press Democrat and construct an apartment complex.
Figure 1 — Subject Site
Apartments are not permitted under the current General Plan's industrial land designation so a
General Plan Amendment (GPA) and rezoning would be required. At the April 12, 2018
meeting, the Planning Commission adopted Resolution 2018-27 to recommend that the City
Council adopt the GPA and rezoning request for the parcel. On July 24, 2018, the City Council
considered the GPA and rezoning request (without a development agreement) and by a 4-1 vote
directed staff to work with the applicant to reach an agreement on how to address impacts and
replace public benefits regarding the proposed rezone of industrial land through the negotiation
of a development agreement. The City Council also requested that the provision of 15% of the
units as affordable housing be considered.
The subject site is surrounded by a diverse mix of land uses (see Figure 1), as follows:
• North. Business Park Drive creates a boundary to the north of the subject site. Vacant
parcels are north of Business Park Drive. The General Plan classifications of these parcels
are Regional Commercial and Mixed Use. The property designated Mixed Use is within
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the Northwest Specific Plan and some of the Commercial is within the Wilfred-Dowdell
Specific Plan.
• South. Located immediately to the south of the subject site are two recently constructed
apartment complexes (Fiori Estates and The Reserve) within the Stadium Area Master
Plan. These properties are designated High Density Residential on the General Plan.
• East. Sonoma Media Investments, the owner of the subject site, recently sold the adjacent
property to the east to a developer who plans to construct a business park. The General
Plan designation of this property is Industrial. This 12.7 acre parcel contains the Press
Democrat printing press facility, but is mostly vacant and can accommodate addition
industrial development.
West. Dowdell Avenue was extended in 2015 and bounds the west property line of the
subject site. The property across Dowdell is vacant, with a General Plan designation of
Industrial. Staff recently conducted a pre -application conference with a developer who
wishes to construct a business park.
STAFF ANALYSIS
A copy of the proposed development agreement (DA) is included as Exhibit A to attached
resolution for the Commission's review and recommendation to the City Council. The DA is
consistent with goals of the current General Plan as well as the more specific policies and goals
as set out in the proposed General Plan Amendments for this Project. Section 1.4 of the General
Plan lays out several objectives that are supported by the proposed Project and its attendant DA,
including the following:
• Increase housing affordability and diversity (which is provided for in part by the
proposed affordable housing fee).
• Build and maintain infrastructure in anticipation of growth (which is provided for by the
proposed park in -lieu and public services fees).
The following components are a summary of pertinent provisions included in the DA:
Conceptual Site Plan and Architecture At the July 24, 2018 City Council meeting, the
Council directed the applicant to work with staff to ensure that the DA provided some
assurances as to the quality of the project and its consistency with the existing neighborhood.
The applicant has worked with staff to develop a site plan and architectural style sheet, which
is included as an exhibit to the DA. Any future SPAR submitted to the city for review would
need to be in substantial conformance with the DA.
Fees for Parks — To help mitigate an ongoing concern that residences west of Highway 101
have less access to parks than residences east of Highway 101, the DA requires the developer
to contribute funding toward the construction of parks. Even though a subdivision is not
proposed, the park contribution would be based on the calculation under section 16.14.020 (E)
of the Rohnert Park Municipal Code. The contribution would be $8,956 per unit and is based
on: the number of persons expected to live within the future apartment complex (2 persons per
unit); a parkland per population ratio of 5 acres per 1,000 people; and the current assessed
value of recently developed land in the area. This is the same formula that was used for the
Residences at Five Creek Project.
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Public Service Payment — The DA requires that the developer pay an annual payment of
$823.54 per residential unit of the Project to offset the projected deficit to the City's General
Fund created by the residential nature of the project and to comply with General Plan policies
and goals. The payment amount shall be adjusted annually based on the San Francisco Bay
Area Consumer Price Index. The establishment of a service district or a similar mechanism
would need to be established to collect the fee on an annual basis. This is the same
requirement that was imposed on the residential portion of the Residences at Five Creek
Project.
Affordable Housing Plan — In its review of the proposed General Plan Amendment and
Rezone, the City Council specifically requested that the DA include "consideration of 15%
affordable housing". As staff and the applicant worked on the DA, it became apparent that this
level of affordable housing construction could be prohibitive for the proposed project (which
is relatively small). However, staff has been working on implementing an affordable housing
fee for rental residential projects, which the Commission has reviewed and recommended for
approval. The proposed D A requires that the developer pay this fee, if it adopted by the City
Council prior to issuance of building permits. In the event, an affordable housing fee is not
adopted, the developer would pay $3.23 per square feet, which is the rate that was reviewed
and recommended by the Commission and which is consistent with the similar fees imposed
by other jurisdictions in Sonoma County. Fee revenue would be used to help implement the
goals of the City's Housing Element, ensuring that this project addresses the General Plan
goal of increasing the affordability of housing.
Mitigated Negative Declaration: Because of the proposed changes to the general plan and zoning
designations, an Initial Study was prepared to determine whether the proposed project, including
the City's proposed facilities, would have a significant adverse effect on the environment.
Mitigation measures that apply specifically to the proposed project were included for air quality,
biological resources, greenhouse gas emissions, noise, and traffic. Based on the analysis included
in the Initial Study, a Mitigated Negative Declaration (MND) was prepared. The Planning
Commission reviewed and recommended approval of the MND at the April 12, 2018 meeting.
The DA implements the project described in the MND, with additional monetary payments to
City. There are no new significant impacts and no additional CEQA analysis is required in
connection with the DA.
General Plan and Zoning Map: The current General Plan map designation for the project area is
Industrial and the Zoning Map designation is Industrial (I -L). The project proposes to amend the
General plan and zoning map designations to High Density Residential. The Planning
Commission considered the amendment request on April 12, 2018 and recommended approval of
both the general plan and zoning map amendment. No additional action by the Planning
Commission is necessary for the City Council to consider the GPA or rezoning request.
Findings: The recommended findings to approve the development agreement are included in the
attached resolutions.
Public Notification: A 10 day public hearing notice was posted at prescribed locations in
Rohnert Park. Property owners within 300 feet of the project were mailed notices of the
proposed application.
Staff Recommendation: Staff recommends that the Planning Commission adopt the following
Resolution, which recommends that the City Council approved the DA related to the Redwood
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Crossings project. This will allow for the DA to be considered along with the GPA and rezone at
subsequent city council hearing (s):
1. Resolution 2018-38 (DA) recommending to the City Council approval of a Development
Agreement between the City of Rohnert Park and Redwood Crossings RP LLC and
Sonoma Media Investments, LLC for the Development of the Redwood Crossings Project
(APN: 143-040-135).
Attachments:
1. Resolution No. 2018-38 (DA):
• Exhibit A — Recommended Development Agreement (Conceptual Site Plan
and Architectural Style Sheet are Exhibit B to the DA)
APPROVALS:
Jef r eiswenge , Planning Manager
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Date
PLANNING COMMISSION RESOLUTION NO. 2018-38
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF ROHNERT PARK, CALIFORNIA, RECOMMENDING TO THE CITY
COUNCIL APPROVAL OF A DEVELOPMENT AGREEMENT BETWEEN THE CITY
OF ROHNERT PARK AND REDWOOD CROSSINGS RP, LLC AND SONOMA MEDIA
INVESTMENTS, LLC, FOR DEVELOPMENT OF THE REDWOOD CROSSINGS
PROJECT (APN 143-040-135)
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 necessary public improvements required by development; and
WHEREAS, Redwood Crossings RP, LLC's predecessor -in -interest, as authorized by the
property owner, Sonoma Media Investments, filed an application for a General Plan Amendment
and Rezone to amend the land use designation and zoning of the 6.53 acre parcel located at the
southeast corner of Dowdell Avenue and Business Park Drive, APN 143-040-135 (the "Property")
from Industrial to High -Density Residential to allow the construction of a multi -family housing
complex; and
WHEREAS, the City prepared a Mitigated Negative Declaration for the General Plan
Amendment and Rezone pursuant to the requirements of CEQA ("MND"); and
WHEREAS, on April 12, 2018 the Planning Commission recommended that the City
Council adopt the MND and approve the General Plan Amendment and Rezone; and
WHEREAS, the City Council reviewed the Planning Commission's recommendation in
July, and directed staff and the applicant to negotiate a development agreement that provided more
certainty with respect to the look and design of the project, and that mitigated the impacts of
introducing new residences west of Highway 1.01 and the provided consideration for affordable
housing; and
WHEREAS, Redwood Crossings RP, LLC, as authorized by the property owner, Sonoma
Media Investments, filed Planning Application No. PL18-0006 proposing a Development
Agreement for the proposed multi -family project on the Property (the "Project"), in accordance
with the City of Rohnert Park Municipal Code ("RPMC"); and
WHEREAS, Developer and City Staff have negotiated a proposed development
agreement ("DA") pursuant to the direction of the City Council in accordance with the
requirements of Government Code § 65864, et seq., and Chapter 17.2 1, "Development Agreement
Procedure," of the RPMC, which is attached to this Resolution as Exhibit A; and
WHEREAS, the DA, provides for, among other things: (1) developer to submit an
application for a Site Plan and Architectural Review Permit (SPAR) in substantial conformance
with its proposed Site Plan; (2) developer to pay a park contribution to address the lack of parks;
(3) developer to pay a public service payment to offset impacts related to the change of land use
from Industrial to High -Density Residential; and (4) developer to address affordable housing by
paying and affordable housing rental fee or an alternative contribution; and
WHEREAS, pursuant to California State Law and the RPMC, public hearing notices were
mailed to all property owners within an area exceeding a three hundred foot radius of the subject
property and a public hearing was published for a minimum of 10 days prior to the first public
hearing in the Community Voice; and
WHEREAS, on September 27, 2018, the Planning Commission held a public hearing, at
which time interested persons had an opportunity to testify either in support or opposition to the
proposal.
NOW, THEREFORE, BE IT RESOLVED that the Planning Commission of the City of
Rohnert Park makes the following findings, determinations and recommendations with respect to
the proposed Development Agreement:
Section 1. The above recitations are true and correct.
Section 2. 1�'indings for Adoption of Development Agreement. The Planning
Commission in recommending approval to the City Council of Planning Application No. PLDA 18-
0001, Development Agreement for the Redwood Crossings project hereby makes the following
findings:
A. A duly noticed public hearing regarding the Development Agreement was held by the
Planning Commission on September 27, 2018, in conformance with the notice
provisions of Government Code §§ 65090 and 65091 and the requirements of the
RPMC.
B. The applicant has proposed amendments to the General Plan and zoning ordinance,
which the Planning Commission has reviewed and considered. The proposed
Development Agreement will be consistent with the General Plan and zoning, as
proposed to be amended, and would direct the Project's development in an orderly
manner that benefits the City.
C. In accordance with RPMC 17.21.040, the Planning Commission has given
consideration to other pending applications and approved projects; the traffic, parking,
public service, visual, and other impacts of the proposed development project upon
abutting properties and the surrounding area; ability of the applicant to fulfill public
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 comparable,
relevant factor.
Section 3. Based on the findings set forth in this Resolution and the evidence in the staff
report, the MND, and staff reports for the MND, General Plan amendment and rezone, the Planning
Commission recommends that the City Council approve the Development Agreement,
substantially in the form set forth at Exhibit A hereto.
DULY AND REGULARLY ADOPTED on this 27th day of September, 2018 by the City
of Rohnert Park Planning Commission by the following vote:
Attest:
AYES: NOES: ABSENT: ABSTAIN:
ADAMS BLANQUIE BORBA GIUDICE HAYDON
Susan Adams, Chairperson, Rohnert Park Planning Commission
Susan Azevedo, Recording Secretary
Exhibit A
RECOMMENDED DEVELOPMENT AGREEMENT
RECORD WITHOUT FEE
PURSUANT TO GOVERNMENT CODE § 6103
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
CITY OF ROHNERT PARK
CITY CLERK'S OFFICE
130 AVRAM AVENUE
ROHNERT PARK, CALIFORNIA 94928
SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY
DEVELOPMENT AGREEMENT
by and between
THE CITY OF ROHNERT PARK,
a California municipal corporation,
and
REDWOOD CROSSINGS RP, LLC,
a California limited liability company
and
SONOMA MEDIA INVESTMENTS, LLC,
a California limited liability company
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TABLE OF CONTENTS
Page
1.
DEFINITIONS...................................................................................................................3
2.
EFFECTIVE DATE AND TERM......................................................................................5
2.1
Effective Date.........................................................................................................5
2.2
Term....................................................................................................._.......,.........5
2.3
Expiration...............................................................................................................5
2.4
Developer Representations and Warranties............................................................6
3.
DEVELOPMENT
OF THE PROPERTY..........................................................................6
3.1
Vested Rights..........................................................................................................6
3.2
Applicable Law.......................................................................................................6
3.3
Regulation by Other Public Agencies.....................................................................7
3.4
Life of Project Approvals.......................................................................................7
3.5
Developer's Right to Rebuild.................................................................................7
3.6
Timing of Development..........................................,...............................................8
3.7
State and Federal Law ............................... .............................................................
8
4.
DEVELOPMENT
STANDARDS......................................................................................8
4.1
Compliance with State and Federal Law................................................................8
4.2
Prevailing Wage Requirements..............................................................................8
4.3
Sales Tax Point of Sale Designation................................,....................................,.9
5.
FEES AND EXACTIONS......................................................,..........,................................9
5.1
Development Fees, Taxes and Exactions...............................................................9
5.2
Impact Fees.............................................................................................................9
5.3
Processing Fees.......................................................................................................9
5.4
Taxes and Assessments.........................................................................................10
5.5
Consultant Fees .................................................................................................10
6.
OBLIGATIONS OF THE PARTIES...............................................................................10
6.1
Site Plan................................................................................................................10
6.2
Park Requirements................................................................................................10
6.3
Public Service Payment........................................................................................10
6.4
Affordable Housing..............................................................................................1 1
7.
COOPERATION AND IMPLEMENTATION................................................................11
N
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TABLE OF CONTENTS
(continued)
Page
7.1
Subsequent Project Approvals..............................................................................1 l
7.2
Processing Applications for Subsequent Project Approvals................................12
7.3
Changes and Amendments to Project Approvals.................................................12
7.4
Amendment of this Agreement.............................................................................13
7.5
Mitigation Measures.............................................................................................14
7.6
Cooperation in the Event of Legal Challenge.......................................................14
7.7
Indemnity and Hold Harmless ..........................................................................14
8. DEFAULT AND REMEDIES.........................................................................................
14
8.1
Breach..................................................................................................................,.14
8.2
Default..................................................................................................................15
8.3
Withholding of Permits.........................................................................................15
8.4
Remedies...............................................................................................................15
8.5
Periodic Review....................................................................................................16
8.6
Enforced Delay; Extension of Time of Performance...........................................17
8.7
Resolution of Disputes..........................................................................................17
8.8
Termination...........................................................................................................17
8.9
Waiver and Release..............................................................................................18
9. MORTGAGEE
PROTECTION; CERTAIN RIGHTS OF CURE...................................18
9.1
Mortgagee Protection... .........................................................................................
18
9.2
Mortgagee Obligations.........................................................................................18
9.3
Notice of Default to Mortgagee............................................................................18
10. ASSIGNABILITY............................................................................................................19
10.1
Assignment by Developer........................................................... ......................19
10.2
Covenants Run With The Land............................................................................19
10.3
Pre -Approved Transfers........................................................................................19
10.4
Non -Assuming Transferees..................................................................................20
10.5
Foreclosure ....... ..... ...............................................................................................
20
11. GENERAL....................................................................................................................20
11.1
Controlling Law....................................................................................................20
11.2
Construction of Agreement...................................................................................20
M
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TABLE OF CONTENTS
(continued)
Page
11.3
No Waiver.............................................................................................................21
11.4
Agreement is Entire Agreement...........................................................................21
11.5
Estoppel Certificate..............................................................................................21
11.6
Further Documents...............................................................................................21
11.7
Time of Essence....................................................................................................21
11.8
Construction..........................................................................................................21
11.9
Notices..................................................................................................................21
11.10
Developer is an Independent Contractor..............................................................22
11.11
No Joint Venture...................................................................................................23
11.12
Nondiscrimination................................................................................................23
11.13
No Third Party Beneficiary..................................................................................23
11.14
Joint and Several Liability ................................................................................23
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DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT ("Agreement") is entered into as of the Effective
Date by and between CITY OF ROHNERT PARK ("City"), a California municipal corporation,
and REDWOOD CROSSINGS RP, LLC, a California limited liability company (the
"Applicant") and SONOMA MEDIA INVESTMENTS, LLC, a California limited liability
corporation ("Owner"). Applicant and Owner may hereinafter be referred to as the
"Developer." City and Developer may each be referred to as a "Party," and collectively the
"Parties".
RECITALS
Applicant, Owner and City enter into this Agreement on the basis of the following facts,
understandings and intentions, and the following recitals are a substantive part of this
Agreement:
A. Sections 65864 through 65869.5 of the California Government Code
("Development Agreement Statute") authorize the City to establish procedures to enter into
binding development agreements with persons having legal or equitable interests in real property
located within the City for the development of property.
B. Owner is the owner of, and Applicant has an option to purchase, that certain real
property within the City of Rohnert Park located at the corner of Dowdell Avenue and Business
Park Drive, of approximately 6.53 acres in size, identified as Assessor's Parcel Number 143-040-
135, as further described in Exhibit A, attached hereto and incorporated by this reference (the
"Property").
C. Developer submitted applications to the City for a General Plan Amendment and
a Rezone, which would re -designate and rezone the Property from Industrial to High -Density
Residential (the "Original Application").
D. The Planning Commission considered the Original Application and recommended
approval to the City Council. On July 24, 2018, the City Council considered the Original
Application and, by a 4-1 vote, directed staff to work with the applicant to reach an agreement on
how to address impacts of and replace public benefits regarding the proposed rezone of industrial
land through the negotiation of a development agreement, with the additional request that the
provision of 15% of the units as affordable housing be considered.
E. Developer submitted an application for a Development Agreement with respect to
the development and construction of a multi -family development known as Redwood Crossings,
consisting of 156 rental units and a clubhouse with a pool on the Property, to be considered
concurrently with the proposed General Plan Amendment and Rezone (the "Project").
F. City staff and Developer have negotiated the terms of this Agreement that
provides for, among things: (1) Developer to submit an application for a Site Plan and
Architectural Review Permit (SPAR) in substantial conformance with its proposed Site Plan; (2)
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Developer to pay a Park Contribution, as defined herein, to address the lack of parks in the
Project; (3) Developer to pay a Service Payment, as defined herein, to offset impacts related to
the change of land use from Industrial to High -Density Residential; and (4) Developer to address
affordable housing by paying the Affordable Housing Rental Fee, as defined herein, or an
alternative payment.
G. Through this Agreement, the Parties intend to preserve the size and density of
development as set forth in the Project Approvals, as defined below. City and Developer each
acknowledge that development and construction of the Project is an undertaking involving
investments by Developer and City, and assurances that the Project can be developed and used in
accordance with the terms and conditions set forth herein and the existing rules governing
development of the Property will benefit both Developer and City.
H. This Agreement will eliminate uncertainty in the comprehensive development
planning of the Project and provide that the Property may be developed, constructed, completed
and used pursuant to this Agreement, and in accordance with existing policies, rules and
regulations of the City, subject to the exceptions and limitations expressed herein. Further, this
Agreement will ensure that the Project addresses impacts of, and replaces public benefits due to,
the re -designation and rezoning of the Property from Industrial to High -Density Residential.
I. City has conducted an environmental analysis in accordance with the California
Environmental Quality Act ("CEQA") and prepared a Mitigated Negative Declaration for the
Project dated March 2018. The City Council has made the required findings and adopted the
Mitigated Negative Declaration ("MND") and Mitigation Monitoring and Reporting Plan
("MMRP") for the Project.
J. Prior to approval of this Agreement, City has taken actions in connection with the
development of the Project on the Property. The approvals and development actions described in
this Recital I are collectively referred to herein as the "Existing Project Approvals." These
include:
1. General Plan Amendment. On , 2018, in accordance with
the recommendation of the Planning Commission, the City Council adopted Resolution
No. , approving the General Plan Amendment for the Property.
2. Rezone. On _, 2018, in accordance with the recommendation of
the Planning Commission, the City Council adopted Ordinance No. , approving a
rezone of the Property to High -Density Residential.
K. Subsequent to approval of this Agreement, the City and Developer anticipate that
applications for additional approvals, entitlements, and permits related to the development and
operation of the Project will be submitted to implement the Project, including design review (the
"Subsequent Project Approvals").
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AGREEMENT
NOW, THEREFORE, pursuant to the authority contained in California Government
Code section 65864, and in consideration of the mutual representations, covenants and promises
of the Parties, the Parties hereto agree as follows:
DEFINITIONS.
"Administrative Agreement Amendment" shall have the meaning set forth in
Section 7.4(a).
"Administrative Project Amendment" shall have the meaning set forth in Section
7.3 (a)(i).
"Agreement" shall have the meaning set forth in the introductory paragraph preceding
the Recitals.
"Affordable Housing Contribution " shall have the meaning set forth in Section 6.4.
"Affordable Housing Rental Fee " shall have the meaning set forth in Section 6.4.
"Applicable Law" shall have the meaning set forth in Section 3.2.
"Applicant" shall have the meaning set forth in the introductory paragraph preceding the
Recitals.
"Assignment" shall have the meaning set forth in Section 10.1.
"Building Permit" means a permit issued by the City for the renovation or construction
of a building or structure, as required by the California Building, Residential, Mechanical,
Electrical, Plumbing, Green Building, Fire or Energy Standard Codes, as adopted by the City and
incorporated in the Rohnert Park Municipal Code by reference, excluding a permit to commence
grading issued under Chapter 15.50 of the Rohnert Park Municipal Code.
"CEQA " shall have the meaning set forth in Recital H.
"Changes in the Law " shall have the meaning set forth in Section 3.7.
"Cure Period" shall have the meaning set forth in Section 8.1.
"City" shall have the meaning set forth in the introductory paragraph preceding the
Recitals.
"City Manager" means the City Manager of the City or his/her designee.
"Consultant Fees " shall have the meaning set forth in Section 5.5.
"Default" shall have the meaning set forth in Section 8.2.
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"Developer" means Owner and Applicant.
"Development Agreement Statute " shall have the meaning set forth in Recital A.
"Director " means the Development Services Director of the City.
"Effective Date " shall have the meaning set forth in Section 2.1.
"Existing Project Approvals" shall have the meaning set forth in Recital I.
"Extended Cure Period" shall have the meaning set forth in Section 8.1.
"Impact Fees" shall have the meaning set forth in Section 5.2.
"Major Agreement Amendment" shall have the meaning set forth in Section 7.4(b).
"MMRP " shall have the meaning set forth in Recital H.
"MND " shall have the meaning set forth in Recital H.
"Mortgage" shall have the meaning set forth in Section 9.1.
"Mortgagee " shall have the meaning set forth in Section 9.1.
"New City Laws" shall mean City's laws, rules, regulations, official policies, standards
and specifications, including those enacted or imposed by a citizen -sponsored initiative or
referendum or by the City Council directly or indirectly in connection with any proposed
initiative or referendum, in each case to the extent amended or otherwise imposed following the
Effective Date.
"Non -administrative Project Amendment" shall have the meaning set forth in
Section 7.3(a)(ii).
"Original Application" shall have the meaning in Recital C.
"Owner " shall have the meaning set forth in the introductory paragraph preceding the
Recitals.
"Park Contribution " shall have the meaning set forth in Section 6.2.
"Party/Parties " shall have the meaning set forth in the introductory paragraph preceding
the Recitals of this Agreement.
"Prevailing Wage Laws" shall have the meaning set forth in Section 4.2(a).
"Processing Fees" shall have the meaning set forth in Section 5.3.
"Project" shall have the meaning set forth in Recital E.
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"Project Approvals" means the Existing Project Approvals and any approved Subsequent
Project Approvals.
"Property" shall have the meaning set forth in Recital B.
"Service Payment" shall have the meaning set forth in Section 6.3.
"Site Plan " shall have the meaning set forth in Section 6.1.
"Subsequent Project Approvals " shall have the meaning set forth in Recital J.
"Subsequent Discretionary Approvals " means all other Subsequent Project Approvals
other than Subsequent Ministerial Approvals, including amendments of the Project Approvals,
improvement agreements, architectural review permits, use permits, lot line adjustments,
subdivision maps, rezonings, development agreements, permits that are not Subsequent
Ministerial Approvals, resubdivisions, and any amendments to, or repealing of, any of the
foregoing, are Subsequent Discretionary Approvals.
"Subsequent Ministerial Approvals " means permits or approvals that are required by
Applicable Law and that are to be issued upon compliance with uniform, objective standards and
regulations. They include applications for road construction permits or authorizations; grading
and excavation permits; building permits, including electrical, plumbing, mechanical, Title 24
Electrical, and Title 24 Handicap permits or approvals; certificates of occupancy; encroachment
permits; water connection permits; and any other similar permits required for the development
and operation of the Project.
"Taxes and Assessments" shall have the meaning set forth in Section 5.4
"Term " shall have the meaning set forth in Section 2.2.
"Transfer" shall have the meaning set forth in Section 10.1.
2. EFFECTIVE DATE AND TERM.
2.1 Effective Date. This Agreement shall become effective upon the date that the
ordinance approving this Agreement becomes effective (the "Effective Date").
2.2 Term. The term of this Agreement shall be ten (10) years from the Effective
Date ("Term"). The Term has been established by the City and Developer as a reasonable
estimate of the time required to develop the Project, including all on- and off-site public
improvements, and obtain the public benefits of the Project.
2.3 Expiration. Following the expiration of the Term, or the earlier completion of
development of the Project and all of Developer's obligations in connection therewith, this
Agreement shall be deemed terminated and of no further force and effect, subject, however, to
the provisions of Section 8.8 below.
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2.4 Developer Representations and Warranties. Each of Owner and Applicant
represent and warrant to City that, as of the Effective Date:
(a) Owner is the owner of, and Applicant has an option to purchase, the
Property;
(b) Each of Owner and Applicant: (i) is organized and validly existing under
the laws of the State of California; (ii) to the extent required, has qualified and been authorized to
do business in the State of California and has complied with all requirements pertaining thereto;
and (iii) to the extent required, is in good standing and has all necessary powers under the laws
of the State of California to own property;
(c) No approvals or consents of any persons are necessary for the execution,
delivery or performance of this Agreement by Owner and Applicant, except as have been
obtained;
(d) The execution and delivery of this Agreement have been duly authorized
by all necessary corporate action; and
(e) This Agreement is a valid obligation of both Owner and Applicant and is
enforceable in accordance with its terms.
3. DEVELOPMENT OF THE PROPERTY.
3.1 Vested Rights. The Property is hereby made subject to the provisions of this
Agreement. Developer shall have the vested right to develop the Property and the Project in
accordance with and subject to the Existing Project Approvals, the Subsequent Project
Approvals, Applicable Law and this Agreement, which shall control the permitted uses, building
locations, timing and manner of construction, density and intensity of use, heights and sizes, and
requirements for on- and off-site infrastructure and public improvements on the Property.
3.2 Applicable Law. City and Developer acknowledge and agree that City is
restricted in its authority to limit its police power by contract and that the limitations,
reservations and exceptions contained in this Agreement are intended to reserve to City all of its
police power that cannot be so limited. Notwithstanding the foregoing reservation of City, it is
the intent of City and Developer that this Agreement be construed to provide Developer with
rights afforded by law, including but not limited to, the Development Agreement Statute.
Therefore, the laws, rules, regulations, official policies, standards and specifications of City
applicable to the development of the Property and/or the Project shall be (collectively,
"Applicable Law"):
(a) Those rules, regulations, official policies, standards and specifications of
the City set forth in the Project Approvals and this Agreement;
(b) With respect to matters not addressed by and not otherwise inconsistent
with the Project Approvals and this Agreement, those laws, rules, regulations, official policies,
standards and specifications (including City ordinances and resolutions) governing permitted
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uses, building locations, timing and manner of construction, densities, intensities of uses, heights
and sizes, and requirements for on- and off-site infrastructure and public improvements, in each
case only to the extent in full force and effect on the Effective Date;
(c) New City Laws that relate to hearing bodies, petitions, applications,
notices, findings, records, hearings, reports, recommendations, appeals and any other matter of
procedure imposed at any time, provided such New City Laws are uniformly applied on a City-
wide basis to all substantially similar types of development projects and properties;
(d) New City Laws that revise City's uniform construction codes, including
City's building code, plumbing code, mechanical code, electrical code, fire code, grading code
and other uniform construction codes, as of the date of permit issuance, provided, that such New
City Laws are uniformly applied on a City-wide basis to all substantially similar types of
development projects and properties;
(e) New City Laws that are necessary to protect physical health and safety of
the public, provided, that such New City Laws are uniformly applied on a City-wide basis to all
substantially similar types of development projects and properties; and
(f) New City Laws that do not apply to the Property and/or the Project due to
the limitations set forth above, but only to the extent that such New City Laws are accepted in
writing by Developer in its sole discretion.
3.3 emulation by Other Public Agencies. City and Developer acknowledge and
agree that other governmental or quasi -governmental entities not within the control of City
possess authority to regulate aspects of the development of the Property and the Project and that
this Agreement does not limit the authority of such other public agencies. City shall cooperate
with Developer in Developer's effort to obtain such permits and approvals as may be required by
other governmental or quasi -governmental entities in connection with the development of, or the
provision of services to, the Property and/or the Project; provided, however, City shall have no
obligation to incur any costs, without compensation or reimbursement, or to amend any City
policy, regulation or ordinance in connection therewith.
3.4 Life of Project Approvals. The term of any and all Project Approvals shall
automatically be extended for the longer of the Term or the term otherwise applicable to such
Project Approvals. Without limiting the generality of the foregoing, pursuant to the Subdivision
Map Act, any vesting or tentative maps hereafter approved in connection with development of
the Project or the Property, shall be extended for the Term (and may be subject to other
extensions provided under the Subdivision Map Act).
3.5 Developer's Right to Rebuild. City agrees that Developer may renovate or
rebuild portions of the Project at any time within the Term should it become necessary due to
any casualty, including natural disaster or changes in seismic requirements. Such renovations or
reconstruction shall be processed as a Subsequent Project Approval consistent with all prior
Project Approvals and Applicable Law. Any such renovation or rebuilding shall be subject to all
design, density and other limitations and requirements imposed by this Agreement, and shall
comply with the Project Approvals, Applicable Law, and the requirements of CEQA.
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3.6 Timing of Development. There is no requirement under this Agreement that
Developer initiate or complete development of the Project, or any portion thereof, or that
development be initiated or completed within any period of time or in any particular order.
Development of the Project is subject to numerous factors that are not within the control of the
Developer, such as the availability of financing, interest rates, access to capital and other factors.
However, and not in limitation of any of the foregoing, since the California Supreme Court held
in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the
parties therein to consider, and expressly provide for, the timing of development resulted in a
later -adopted initiative restricting the timing of development to prevail over such parties'
agreement, it is the desire of the Parties hereto to avoid that result. Therefore, notwithstanding
the adoption of an initiative after the Effective Date by City's electorate to the contrary, the
Parties acknowledge that, except as otherwise provided for in the Project Approvals, Developer
shall have the vested right (but not the obligation) to develop the Project in such order and at
such rate and at such times as Developer deems appropriate in the exercise of its business
judgment.
3.7 State and Federal Law. As provided in Section 65869.5 of the Development
Agreement Statute, this Agreement shall not preclude the applicability to the Project of changes
in laws, regulations, plans or policies, to the extent that such changes are specifically mandated
and required by changes in State or Federal laws or by changes in laws, regulations, plans or
policies of special districts or other governmental entities, other than City, created or operating
pursuant to the laws of the State of California ("Changes in the Law"). In the event Changes in
the Law prevent or preclude, or render substantially more expensive or time consuming,
compliance with one (1) or more provisions of this Agreement, the City and Developer shall
meet and confer in good faith in order to determine whether such provisions of this Agreement
shall be modified or suspended, or performance thereof delayed, as may be necessary to comply
with Changes in the Law. Nothing in this Agreement shall preclude City or Developer from
contesting by any available means (including administrative or judicial proceedings) the
applicability to the Project any such Changes in the Law. City and Developer agree and
acknowledge that Developer may determine, in its discretion, not to proceed with the Project in
the event that Changes in the Law make the Project substantially more expensive, time
consuming, economically infeasible, impractical or impossible; provided, however, that in such
event, this Agreement shall remain in full force and effect and any development of the Property
during the Term shall comply with the provisions hereof.
4. DEVELOPMENT STANDARDS.
4.1 Coml2liancc with State and Federal Law. Developer, at its sole cost and
expense, shall comply with requirements of, and obtain all permits and approvals required by,
regional, State and Federal agencies having jurisdiction over the Project.
4.2 Prevailing Wage Requirements.
(a) Developer acknowledges and agrees that all improvements paid for
directly or indirectly with public funds will constitute construction, alteration, demolition,
installation, or repair work done under contract and paid for in whole or in part out of public
funds as provided under California Labor Code Section 1720. Accordingly, if and to the extent
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applicable, Developer shall comply with, and cause its contractors and subcontractors to comply
with, all State Labor Code requirements and implementing regulations of the Department of
Industrial Relations pertaining to "public works" (collectively, "Prevailing Wage Laws").
Developer shall require the contractor for the Project or any portion thereof involving any such
publicly financed improvements, to submit, upon request by City or County, as applicable,
certified copies of payroll records to City, and to maintain and make records available to City
and its designees for inspection and copying to ensure compliance with Prevailing Wage Laws,
as applicable. Developer shall also include in each of its contractor agreements with respect to
any such publicly financed improvements, a provision in form reasonably acceptable to City,
obligating the contractor to require its contractors and/or subcontractors to comply with
Prevailing Wage Laws, as applicable, and to submit, upon request by City, certified copies of
payroll records to City and to maintain and make such payroll records available to City and its
designees for inspection and copying during regular business hours at the Property or at another
location within City.
(b) Developer shall defend (with counsel chosen by the City), indemnify,
assume all responsibility for, and hold harmless City and its officers, officials, employees,
volunteers, agents and representatives from and against any and all present and future liabilities,
obligations, orders, claims, damages, fines, penalties and expenses (including attorneys' fees and
costs) arising out of or in any way connected with Developer's or its contractors' obligations to
comply with all Prevailing Wage Laws, including all claims that may be made by contractors,
subcontractors or other third party claimants pursuant to Labor Code sections 1726 and 1781.
4.3 Sales Tax Point of Sale Designation. Developer shall require all persons and
entities providing bulk lumber, concrete, structural steel and pre -fabricated building components,
such as roof trusses, to be used in connection with the construction and development of, or
incorporated into, the Project, to designate City as the sole point-of-sale for purposes of
computing sales taxes due under the Bradley -Burns Uniform Local Sales and Use Tax Law
(California Revenue and Taxation Code sections 7200 et seq. and implementing regulations) on
the sale of such bulk construction and building materials and components. Developer shall not
be in default hereunder if such request is not agreed to by such persons and entities providing
such materials to the Project.
5. FEES AND EXACTIONS.
5.1 Development Fees, Taxes and Exactions. Developer shall pay all fees, special
assessments, special taxes, exactions and dedications payable due to the development, build out,
occupancy and use of the Property pursuant to this Agreement including Impact Fees, Processing
Fees, Taxes and Assessments, and Consultant Fees.
5.2 Impact Fees. Developer shall pay all development impact fees imposed
pursuant to the Mitigation Fee Act, California Government Code section 66000 et seq., in effect
as of the Effective Date ("Impact Fees"), except as provided in Section 6.4 below. Impact fees
shall be paid at the rate in effect at the time of Building Permit issuance.
5.3 Processing Fees. City may charge and Developer agrees to pay all processing
fees, application, inspection and monitoring fees, and staff and legal fees ("Processing Fees"),
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for land use approvals, grading and Building Permits, general plan maintenance fees, and other
permits and entitlements, which are in force and effect on a City-wide basis at the time those
permits, approvals or entitlements are applied for on any or all portions of the Project, and which
are intended to cover the actual costs of processing the foregoing.
5.4 "faxes and Assessments. City may charge and Developer agrees to pay any
new, increased or modified taxes or assessments, imposed as a condition of or in connection with
the Project Approvals or otherwise, provided such taxes and assessments are equally applied on a
City-wide basis and have a uniform effect on a broadly-based class of land, projects, or
taxpayers, as applicable, within the City ("Taxes and Assessments").
5.5 Consultant Fees. In addition to charging the foregoing Processing Fees, City
may, in its sole discretion, contract with one or more outside inspectors, engineers, attorneys or
consultants to perform all or any portion of the monitoring, inspection, testing, application
processing and evaluation services to be performed in connection with construction and
development of the Project or in connection with the periodic review of the Agreement
("Consultant Fees"). Developer shall pay to City, within 30 days following City's written
demand therefore, the full amount of all Consultant Fees, plus a 10 percent City administration
charge. City shall provide copies of consultant bills that City asks Developer to pay pursuant to
this paragraph at the same time that the City submits an invoice seeking payment to Developer.
In the event that a consultant bill contains attorney-client privileged communications, City may
redact those portions of the consultant bill that are privileged. The Consultant Fees, together
with the associated administrative charge, shall be in addition to, and not in lieu of, the
Processing Fees. The City shall not double -charge Developer through the imposition of both
Processing Fees and Consultant Fees.
6. OBLIGATIONS OF THE PARTIES.
6.1 Site flan. Developer shall submit to the City an application for Site Plan and
Architectural Review (SPAR) in substantial compliance with Exhibit B. attached hereto and
incorporated herein by this reference, as determined by City in its reasonable discretion (the
"Site Plan") for a development of no more than 156 units. City agrees and acknowledges that
Developer is not required to build a total of 156 units. Developer will submit a SPAR to finalize
a Site Plan.
6.2 Park Requirements. Developer shall make a contribution to the City to address
the lack of public parks on the Property in an amount equal to $8,956.00 per residential unit
constructed as part of the Project, subject to annual adjustment on July 1 based on the San
Francisco Bay Area Consumer Price Index (the "Park Contribution"). The Park Contribution
for each unit must be paid to the City prior to the issuance of the Building Permit for the
construction of such unit.
6.3 Public Service Paymcnt.
(a) Developer shall make a public service payment to City to offset the
projected fiscal deficit to City's General Fund created by the Project and its re -designation and
rezone from Industrial to High Density Residential and to comply with the General Plan policies
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and goals. The payment shall be equal to $823.54 per residential unit constructed on the
Property, subject to annual adjustment on July 1 based on the San Francisco Bay Area Consumer
Price Index (the "Service Payment"). The obligation to make annual Service Payments shall be
documented in an instrument to be recorded against the Property, as set forth in Section 6.3(c)
below.
(b) Developer shall pay to City each initial Service Payment at the time of
issuance of a Building Permit for a residential unit within the Project. Thereafter, Developer or
its successor shall pay an amount equal to the Service Payment, as adjusted pursuant to Section
6.3(a) above, for each residential unit for which a Building Permit has been issued, with such
Service Payment due not later than April 30 of each year following the year of initial payment
and continuing in perpetuity, provided that at least twelve (12) months have elapsed between the
date of initial payment and the first subsequent payment.
(c) Developer shall ensure the ongoing payment of the Service Payment to
City by the establishment of service districts or other mechanisms, which shall be responsible for
making the annual Service Payment. The Service Payment funding mechanism shall be subject
to City approval, and all relevant documents, agreements, and, as applicable, property owner and
homeowner association documents, including the conditions, covenants and restrictions, shall
expressly provide language to that effect in addition to language that the City shall be a third
party beneficiary with the right to independently enforce such association's obligations, which
language shall be reviewed and approved by the City Attorney. The recorded instrument or
financing mechanism must be in place or established to the satisfaction of City, in its sole
discretion, prior to the issuance of the first Building Permit for the Project.
6.4 Affordable Housing. The Parties acknowledge that the City intends to adopt an
affordable housing development impact fee to be imposed on rental housing in -lieu of on-site
construction ("Affordable Housing Rental Fee"). Notwithstanding the vesting provisions in
this Agreement, Developer agrees that the Project shall be subject to the payment of the
Affordable Housing Rental Fee, if adopted by the City Council prior to the issuance of a
Building Permit for the Project. Developer shall pay the Affordable Housing Rental Fee for the
entire Project at the time of and in the amount in effect as of the first Building Permit issuance.
In the event that the Affordable Housing Rental Fee has not been adopted prior to the issuance of
the first Building Permit, Developer shall pay to City a contribution in the amount of $3.23 per
square foot, subject to annual adjustment on July 1 based on the San Francisco Bay Area
Consumer Price Index (the "Affordable Housing Contribution"), prior to Building Permit
issuance.
7. COOPERATION AND IMPLEMENTATION.
7.1 Subsequent Project Approvals. Developer and City acknowledge and agree that
Developer intends to submit applications for Subsequent Project Approvals. In particular,
Developer shall submit a SPAR application in accordance with Section 6.1 above. In connection
with any Subsequent Project Approval, the City shall exercise its discretion in accordance with
Applicable Law and the Project Approvals and, as provided by this Agreement.
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7.2 Processing Applications for Subse uent Project Approvals.
(a) Developer acknowledges that City cannot begin processing applications
for Subsequent Project Approvals until Developer submits complete applications on a timely
basis. Developer shall use reasonable efforts to (i) provide to City in a timely manner any and all
documents, applications, plans, and other information necessary for City to carry out its
obligations hereunder; and (ii) cause Developer's planners, engineers, and all other consultants to
provide to City in a timely manner all such documents, applications, plans and other materials
required under Applicable Law. It is the express intent of Developer and City to cooperate and
diligently work to obtain any and all Subsequent Project Approvals.
(b) Upon submission by Developer of all appropriate applications and
processing fees for any pending Subsequent Project Approval, City shall, as allowed by law,
reasonably and diligently, subject to City ordinances, policies and procedures regarding hiring
and contracting, commence and complete all steps necessary to act on Developer's currently
pending Subsequent Project Approval applications.
(c) With the Existing Project Approvals, City has made a final policy decision
that the Project is in the best interests of the public health, safety and general welfare.
Applications for Subsequent Ministerial Approvals that are consistent with this Agreement and
the Existing Project Approvals shall be processed and considered in a manner consistent with the
vested rights granted by this Agreement and shall be deemed to be tools to implement those final
policy decisions, and shall be approved by City so long as they are consistent with Applicable
Law, this Agreement and the Existing Project Approvals. While City expressly reserves its
discretion with respect to all Subsequent Discretionary Approvals, City agrees that it shall not
use its authority in considering any application for a Subsequent Discretionary Approval to
change the policy decisions reflected by the Existing Project Approvals or otherwise to prevent
or frustrate the further development of the Project as set forth in the Existing Project Approvals.
(d) Nothing herein shall limit the ability of City to require the necessary
environmental review, reports, analysis or studies to assist in determining that any requested
Subsequent Ministerial Approval is consistent with this Agreement and the Existing Project
Approvals. If the City determines that an application for a Subsequent Ministerial Approval is
not consistent with this Agreement or the Existing Project Approvals and should be processed as
an application for a Subsequent Discretionary Approval rather than a Subsequent Ministerial
Approval, the City shall specify in writing the reasons for such determination and may propose a
modification which would be processed as a Subsequent Ministerial Approval. Developer shall
then either modify the application to conform to this Agreement and the Existing Project
Approvals, as the case may be, or the City shall process the application as an application for a
Subsequent Discretionary Approval.
(e) City shall process Developer's applications for Subsequent Project
Approvals to the fullest extent allowed by Applicable Law and Developer may proceed with
Subsequent Project Approvals as provided for herein to the fullest extent allowed by Applicable
Law.
7.3 Changes and Amendments to Proje�pprovals.
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(a) Given the long term build -out of the Project, the City and Developer
acknowledge that modifications or amendments to the Project Approvals may be appropriate and
mutually desirable. To the extent permitted by Applicable Law, any Project Approval may, from
time to time, be amended or modified in the following manner:
(i) Upon the written request of Developer for an amendment or
modification to a Project Approval, the City Manager or the City Manager's designee shall
determine: (A) whether the requested amendment or modification is minor when considered in
light of the Project as a whole; and (B) whether the requested amendment or modification is
consistent with this Agreement and Applicable Law. If the City Manager finds, in his or her sole
discretion, that the proposed amendment or modification is minor, consistent with this
Agreement and Applicable Law, and will result in no new significant impacts not addressed and
mitigated in the environmental review, the amendment shall be determined to be an
"Administrative Project Amendment" and the City Manager may approve the Administrative
Project Amendment consistent with City's procedures for such administrative actions, including
any requirements for notice, public hearing and appeal rights.
(ii) Any request of Developer for an amendment or modification to a
Project Approval which is determined by the City Manager or his/her designee not to be an
Administrative Project Amendment as set forth above shall be deemed a "Non -administrative
Project Amendment" and shall be subject to review, consideration and action pursuant to the
Project Approvals, Applicable Law and this Agreement, as applicable.
(iii) Administrative Project Amendments shall not require an
amendment to this Agreement.
7.4 Amendment of this Agreement. This Agreement may be amended from time to
time, in whole or in part, by mutual written consent of the Parties or their successors in interest,
as follows:
(a) Administrative ve Agreement Amendments. Any amendment to this
Agreement which does not substantially affect (a) the Term; (b) permitted uses of the Property;
(c) provisions for the reservation or dedication of land; (d) conditions, terms restrictions or
requirements for subsequent discretionary actions; (e) increases in the density or intensity of the
use of the Property or the maximum height or size of proposed buildings; (f) monetary
contributions by Developer; (g) the provision of affordable housing; or (h) the Site Plan, shall be
deemed an "Administrative Agreement Amendment" and the City Manager or his or her
designee, except to the extent otherwise required by Applicable Law, may approve the
Administrative Agreement Amendment without notice and public hearing.
(b) Major Agreement Amendments. Any amendment to this Agreement
which is determined not to be an Administrative Agreement Amendment as set forth above shall
be deemed a "Major Agreement Amendment" and shall require giving of notice and a public
hearing before the Planning Commission and City Council in accordance with Applicable Law.
The City Manager or his or her designee shall have the authority to determine if an amendment is
a Major Agreement Amendment or an Administrative Agreement Amendment.
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7.5 Mitigation Mea4Ldres. Developer shall comply with all applicable mitigation
measures in the MMRP, as set forth in the MND.
7.6 Coopera ioii in the Event of Legal Challenge.
(a) City and Developer, at Developer's sole cost and expense, shall cooperate
in the event of any court action instituted by a third party or other governmental entity or official
challenging the validity of any provision of this Agreement, any Existing Project Approvals or
any Subsequent Project Approvals and City shall appear in the action and defend its decision,
except that City shall not be required to be an advocate for Developer. To the extent that
Developer determines to contest or defend such litigation challenges, Developer shall reimburse
City, within ten (10) days following City's written demand therefore, which may be made from
time to time during the course of such litigation, all costs incurred by City in connection with the
litigation challenge, including City's administrative, legal and court costs, provided that City, it
its sole discretion shall determine to either: (a) elect to joint representation by Developer's
counsel; or (b) retain an experienced litigation attorney. If Developer defends any such legal
challenge, Developer shall indemnify, defend, and hold harmless City and its officials and
employees from and against any claims, losses, or liabilities assessed or awarded against City by
way of judgment, settlement, or stipulation. Nothing herein shall authorize Developer to settle
such legal challenge on terms that would constitute an amendment or modification of this
Agreement, any Existing Project Approvals or any Subsequent Project Approvals, unless such
amendment or modification is approved by City in accordance with applicable legal
requirements, and City reserves its full legislative discretion with respect thereto.
(b) In addition, City shall have the right, but not the obligation, to contest or
defend such litigation challenges, in the event that Developer elects not to do so. If City elects to
contest or defend such litigation challenges, Developer shall bear all related costs and expenses,
including City's attorney fees, and, in addition, shall indemnify, defend, and hold harmless City
and its officials and employees from and against any claims, losses, or liabilities assessed or
awarded against City by way of judgment, settlement, or stipulation.
7.7 Indemnity and Hold Harmless. Developer shall indemnify and hold City and its
elected and appointed officers, agents, employees, and representatives harmless from and against
any and all claims, costs, liabilities and damages (including attorneys' fees and costs), including
without limitation bodily injury, death, or property damage, resulting directly or indirectly from
the approval or implementation of this Agreement, the development and construction of the
Project by or on behalf of Developer, or from any operations performed under this Agreement,
whether such operations were performed by Developer or any of Developer's contractors,
subcontractors, agents or employees, except to the extent such claims, costs and liabilities arise
from the active negligence or willful misconduct of City, its elected and appointed officers,
agents, employees, representatives, contactors or subcontractors.
8. DEFAULT AND REMEDIES.
8.1 Breach. Subject to extensions of time under this Agreement or by mutual
consent in writing, the failure or delay by either Party to perform any term or provision of this
Agreement shall constitute a breach of this Agreement. In the event of alleged breach of any
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terms or conditions of this Agreement, the Party alleging such breach shall give the other Party
notice in writing specifying the nature of the breach and the manner in which said breach or
default may be satisfactorily cured, and the Party in breach shall have thirty (30) days following
such notice ("Cure Period") to cure such breach, except that in the event of a breach of an
obligation to make a payment, the Party in breach shall have ten (10) days to cure the breach. If
the breach is of a type that cannot be cured within thirty (30) days, the breaching Party shall,
within a thirty (30) day period following notice to the non -breaching Party, notify the non -
breaching Party of the time it will take to cure such breach which shall be a reasonable period
under the circumstances ("Extended Cure Period"); commence to cure such breach; and be
proceeding diligently to cure such breach. During the Cure Period or Extended Cure Period, the
Party charged shall not be considered in default for purposes of termination or institution of legal
proceedings; but the City's right to refuse to issue a permit or Subsequent Project Approval,
under Section 8.3, shall not be limited by this provision. The failure of any Party to give notice
of any breach shall not be deemed to be a waiver of that Party's right to allege any other breach
at any other time.
8.2 Default. If the breaching Party has not cured such breach within the Cure
Period or the Extended Cure Period, if any, such Party shall be in default ("Default"), and the
non -breaching Party, at its option, may terminate the Agreement, institute legal proceedings
pursuant to this Agreement and shall have such remedies as are set forth in Section 8.4 below.
8.3 WithholdingofPermits. In the event of a Default by Developer, City shall have
the right to refuse to issue any permits or other approvals to which Developer would otherwise
have been entitled pursuant to this Agreement. This provision is in addition to and shall not limit
any actions that City may take to enforce the conditions of the Project Approvals.
8.4 Remedies.
(a) In the event of a Default by City or Developer, the non -defaulting Party
shall have the right to terminate this Agreement upon giving notice of intent to terminate
pursuant to Government Code Section 65868 and regulations of City implementing such section.
Following notice of intent to terminate, the matter shall be scheduled for consideration and
reviewed in the manner set forth in Government Code Section 65867 and City regulations
implementing this section. Following consideration of the evidence presented in the review
before the City Council, either Party alleging Default by the other Party may give written notice
of termination of this Agreement to the other Party. Termination of this Agreement shall be
subject to the provisions of Section 8.8 below.
(b) City and Developer agree that in the event of Default by City, the Parties
intend that the only remedy shall be declaratory relief or specific performance of this Agreement.
The Parties further agree that in the event of Default by Developer, the City's primary remedy
would be specific performance of the terms and provisions of this Agreement. In no event shall
either Party be entitled to any actual, consequential, punitive, or special damages. If City issues
an Approval pursuant to this Agreement in reliance upon a specified condition being satisfied by
Developer in the future, and if Developer then fails to satisfy such condition, City shall be
entitled to specific performance for the purpose of causing Developer to satisfy such condition.
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OAK 94847-8570-4305 v5
(c) In addition to any other rights or remedies, either Party may institute legal
action to cure, correct or remedy any Default, to enforce any covenants or agreements herein, to
enjoin any threatened or attempted violation hereof, or to obtain any other remedies consistent
with the purpose of this Agreement except as limited by Section 8.4(b) above. Any such legal
action shall be brought in the Superior Court for Sonoma County, California.
8.5 Periodic Review.
(a) The annual review date for this Agreement shall be the month and day of
the Effective Date. No later than 60 calendar days prior to the annual review date, Developer,
shall submit to the City an accounting of the fees due and paid to the City, any assignments or
transfers of the Property and all construction of public improvements under this Agreement.
Developer shall initiate the annual review by submitting a written request to the Planning
Director. Developer shall submit an application and pay all legally required fees as required by
the City, and provide evidence as determined necessary by the Director to demonstrate good
faith compliance with the provisions of this Agreement. However, failure to initiate the annual
review within 30 days of receipt of written notice to do so from City shall not constitute a
Default by Developer under this Agreement, unless City has provided actual notice and
opportunity to cure and Developer has failed to so cure.
(b) The annual review required by Government Code section 65865.1 and the
City Municipal Code shall be conducted as provided herein:
(i) The City Manager shall review Developer's submission to
ascertain whether Developer has complied in good faith with the terms of this Agreement. If the
City Manager finds good faith compliance by Developer with the terms of this Agreement, the
City Manager shall so notify Developer and the City Council in writing and the review for that
period shall be concluded. If the City Manager finds good faith compliance with this
Agreement, the notification to the City Council shall not require a hearing of any kind or an
appearance from Developer. If the City Manager is not satisfied that the Developer is
performing in accordance with the material terms and conditions of this Agreement, the City
Manager shall refer the matter to the City Council for a determination as to compliance with this
Agreement and notify Developer in writing at least ten days in advance of the time at which the
matter will be considered by the City Council.
(ii) In the event that the City Manager is not satisfied pursuant to
section (b)(i) above, the City Council shall conduct a hearing at which Developer must submit
evidence that it has complied in good faith with the terms and conditions of this Agreement. The
findings of the City Council on whether Developer has complied with this Agreement for the
period under review shall be based upon substantial evidence in the record. If the City Council
determines that, based upon substantial evidence, Developer has complied in good faith with the
terms and conditions of this Agreement, the review for that period shall be concluded. If,
however, the City Council determines, based upon substantial evidence in the record, that there
are significant questions as to whether Developer has complied in good faith with the terms and
conditions of this Agreement, the City Council may continue the hearing and shall notify
Developer of the City's intent to meet and confer with Developer within 30 days of such
determination, prior to taking further action. Following the 30 -day time period, the City Council
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OAK #4847-8570-4305 v5
shall resume the hearing in order to further consider the matter and to make a determination,
regarding Developer's good faith compliance with the terms and conditions of the Agreement
and to take those actions it deems appropriate, including but not limited to, termination of this
Agreement, in accordance with California Government Code section 65865.1 and the City
Municipal Code.
(c) Failure of City to conduct an annual review shall not constitute a waiver
by the City of its rights to otherwise enforce the provisions of this Agreement nor shall
Developer have or assert any defense to such enforcement by reason of any such failure to
conduct an annual review.
(d) If, after an annual review, City finds Developer has complied in good faith
with this Agreement, City shall promptly following Developer's request issue to Developer a
certificate of compliance certifying that Developer has so complied through the period of the
applicable annual review. The Certificate of Compliance must be in recordable form and must
contain such information as may be necessary to impart constructive notice of City's finding.
Developer may record the Certificate of Compliance in the Official Records of the County of
Sonoma.
8.6 Enforced Delay; Extension of Time of Performance. Subject to the limitations
set forth below, performance by either party hereunder shall not be deemed to be in default, and
all performance and other dates specified in this Agreement shall be extended, where delays are
due to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of
God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; unusually
severe weather; acts or omissions of the other Party; or acts or failures to act of any other public
or governmental agency or entity (other than the acts or failures to act of City which shall not
excuse performance by City). An extension of time for any such cause shall be for the period of
the enforced delay and shall commence to run from the time of the commencement of the cause
but in any event shall not exceed a cumulative total of two years. Developer acknowledges that
adverse changes in economic conditions, either of Developer specifically or the economy
generally, changes in market conditions or demand, and/or inability to obtain financing or other
lack of funding to complete the work of on-site and off-site improvements shall not constitute
grounds of enforced delay pursuant to this Section. Developer expressly assumes the risk of
such adverse economic or market changes and/or financial inability, whether or not foreseeable
as of the Effective Date.
8.7 Resolution of Disputes. With regard to any dispute involving the Project, the
resolution of which is not provided for by this Agreement or Applicable Law, Developer shall, at
City's request, meet with City. The parties to any such meetings shall attempt in good faith to
resolve any such disputes. Nothing in this Section shall in any way be interpreted as requiring
that Developer and City and/or City's designee reach agreement with regard to those matters
being addressed, nor shall the outcome of these meetings be binding in any way on City or
Developer unless expressly agreed to by the parties to such meetings.
8.8 'Termination. This Agreement shall terminate upon the earlier of (i) expiration
of the Term, (ii) when the Property has been fully developed and all of Developer's obligations
have been fully satisfied as reasonably determined by City, (iii) after all appeals have been
17
OAK #4847-8570-4305 v5
exhausted before a final court of judgment, or issuame of a final court order directed to the City
to set aside, withdraw, or abrogate the City's approval of this Agreement or any material part
thereof, or (iv) in accordance with Section 8.4 in the event of a Default. Upon termination of this
Agreement as to all of the Property, at the request of Developer, the City shall record a Notice of
Termination for each affected parcel in a form satisfactory to the City Attorney in the Office of
the Sonoma County Recorder. In the event this Agreement is terminated, neither party shall
have any further rights or obligations hereunder, except for those obligations of Developer set
forth in Sections 4.2 (Prevailing Wage), 7.6 (Cooperation in the Event of Legal Challenge), 7.7
(Indemnity and Hold Harmless), 8.9 (Waiver and Release).
8.9 Waiver and Release. In the event of the termination of this Agreement prior to
the development of the Property, Developer agrees and acknowledges that City has the right to
re -designate and rezone the Property and hereby waives and releases City and its elected and
appointed officers, agents, employees, and representatives from any and all claims, costs,
liabilities and damages related to any such subsequent General Plan amendments or rezones of
the Property.
9. MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE.
9.1 Mortgagee Protection. This Agreement shall be superior and senior to all liens
placed upon the Property or any portion thereof after the date on which this Agreement or a
memorandum thereof is recorded, including the lien of any deed of trust or mortgage
("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid,
diminish or impair the lien of any Mortgage made in good faith and for value, but all of the terms
and conditions contained in this Agreement shall be binding upon and effective against all
persons and entities, including all deed of trust beneficiaries or mortgagees ("Mortgagees") who
acquire title to the Property or any portion thereof by foreclosure, trustee's sale, deed in -lieu -of
foreclosure, voluntary transfer or otherwise.
9.2 Mortgagee Obligations. City, upon receipt of a written request from a
foreclosing Mortgagee, shall permit the Mortgagee to succeed to the rights and obligations of
Developer under this Agreement, provided that all defaults by Developer hereunder that are
reasonably susceptible of being cured are cured by the Mortgagee as soon as reasonably possible,
provided, however, that in no event shall such Mortgagee personally be liable for any defaults or
monetary obligations of Developer arising prior to acquisition of possession of such property by
such Mortgagee. The foreclosing Mortgagee shall have the right to find a substitute developer to
assume the obligations of Developer, which substitute shall be considered for approval by the
City pursuant this Agreement. In any event, a Mortgagee shall not be entitled to devote the
Property to any use except in full compliance with the Project Approvals nor to construct any
improvements thereon or institute any uses other than those uses or improvements provided for
or authorized by the Agreement or the Project Approvals.
9.3 Notice of Default to Mortgagee. If City receives notice from a Mortgagee
requesting a copy of any notice of default given to Developer and specifying the address for
service thereof, City shall endeavor to deliver to the Mortgagee, concurrently with service
thereof to Developer, all notices given to Developer describing all claims by the City that
Developer has defaulted hereunder. If City determines that Developer is not in compliance with
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this Agreement, City also shall endeavor to serve notice of noncompliance on the Mortgagee
concurrently with service on Developer. Each Mortgagee shall have the right, but not the
obligation, during the same period available to Developer to cure or remedy, or to commence to
cure or remedy, the condition of default claimed or the areas of noncompliance set forth in City's
notice.
10. ASSIGNABILITY.
10.1 Assignment by Developer. Developer may not convey, assign or transfer
("Transfer") any of its interests, rights or obligations under this Agreement without the prior
written consent of City, which consent shall be considered in City's sole and absolute discretion
prior to approval of the SPAR and subject to City's reasonable discretion after approval of the
SPAR. Any Transfer of all or a portion of this Agreement shall be documented by an
Assignment and Assumption Agreement in a form reasonably acceptable to the City. In no event
shall the obligations conferred upon Developer under this Agreement be transferred except
through a transfer of all or a portion of the Property. Should Developer transfer any of its
interests, rights or obligations under this Agreement in connection with a transfer by Developer
of all or a portion of the Property (such Transfer, a "Assignment"), such Assignment shall be
documented by an Assignment and Assumption Agreement in the form attached hereto as
Exhibit C or such other form reasonably acceptable to the City. Should Developer transfer any
of its interests, rights or obligations under this Agreement, it shall nonetheless remain liable for
performance of the obligations for installation of public improvements and payment of fees,
unless the transferee agrees to be bound by the relevant terms of the Agreement, including the
obligations for installation of public improvements and payment of fees. During the Term,
Developer shall provide City with written notice of a request to Transfer any interest in this
Agreement 60 days prior to any such contemplated Transfer. Any such request for a Transfer
shall be accompanied by quantitative and qualitative information that substantiates, to the City's
satisfaction, that the proposed transferee has the capability to fulfill the rights and obligations of
this Agreement. Within 30 days of such a request and delivery of information, the City Manager
shall make a determination, in his or her sole discretion prior to approval of the SPAR and
reasonable discretion after approval of the SPAR, as to whether the Transfer shall be permitted.
Each successor in interest to Developer shall be bound by all of the terms and provisions
applicable to the portion of the Property acquired. This Agreement shall be binding upon and
inure to the benefit of the Parties' successors, assigns and legal representatives. This Agreement
shall be recorded by the City in the Sonoma County Recorder's Office promptly upon execution
by each of the Parties.
10.2 Covenants Run With The Land. All of the provisions, agreements, rights,
powers, standards, terms, covenants and obligations contained in this Agreement shall run with
the land and shall be binding upon the Parties and their respective heirs, successors (by merger,
consolidation or otherwise) and assigns, devisees, administrators, representatives, lessees and all
other persons or entities acquiring the Property, any lot, parcel or any portion thereof and any
interest therein, whether by sale, operation of law or other manner, and shall inure to the benefit
of the Parties and their respective successors.
10.3 Pre -Approved 'Transfers. The following transfers shall not require approval by
the City, and shall automatically, upon the satisfaction of the conditions in Section 10.1 above,
19
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result in the release of Developer of its obligations hereunder as they may relate specifically to
the specific property or asset sold or transferred: (a) sale or lease of the Property in its entirety to
any corporation, limited liability company, partnership or other entity which is controlling of,
controlled by or under common control with Developer and "control" for purposes of this
definition means effective management and control of the other entity, subject only to major
events requiring the consent or approval of the other members of such entity; (b) a loan or
mortgage pertaining to the Property; or (c) a Transfer of Sonoma Media Investments LLC's
rights and obligations under this Agreement to Redwood Crossings RP, LLC, in connection with
Redwood Crossings RP LLC's purchase of the Property, in which case Redwood Crossings RP,
LLC shall assume the role as the sole Developer under this Agreement.
10.4 Non -Assuming Transferees. Except as otherwise required by a transferor, the
burdens, obligations and duties of such transferor under this Agreement shall not apply to any
purchaser of any individual house offered for sale. The transferee in a transaction described
above and the successors and assigns of such a transferee shall be deemed to have no obligations
under this Agreement, but shall continue to benefit from the vested rights provided by this
Agreement for the duration of the Term hereof. Nothing in this Section shall exempt any
property transferred to a non -assuming transferee from payment of applicable fees, taxes and
assessments or compliance with applicable conditions of approval.
10.5 Foreclosure. Nothing contained in this Section shall prevent a transfer of the
Property, or any portion thereof, to a lender as a result of a foreclosure or deed in lieu of
foreclosure, and any lender acquiring the Property, or any portion thereof, as a result of
foreclosure or a deed in lieu of foreclosure, shall take such Property subject to the rights and
obligations of Developer under this Agreement; provided, however, in no event shall such lender
be liable for any defaults or monetary obligations of Developer arising prior to acquisition of title
to the Property by such lender, and provided further, in no event shall any such lender or its
successors or assigns be entitled to a Building Permit or occupancy certificate until all fees due
under this Agreement (relating to the portion of the Property acquired by such lender) have been
paid to City.
11. GENERAL.
11.1 Controlling Law. This Agreement shall be governed by the laws of the State of
California, without reference to choice of laws principles.
11.2 Construction of Agreement. The language in this Agreement in all cases shall
be construed as a whole and in accordance with its fair meaning. Each reference in this
Agreement to this Agreement or any of the Existing Project Approvals or Subsequent Ministerial
or Discretionary Approvals shall be deemed to refer to the Agreement, Project Approval or
Subsequent Ministerial or Discretionary Approval as it may be amended from time to time,
whether or not the particular reference refers to such possible amendment. Section headings in
this Agreement are for convenience only and are not intended to be used in interpreting or
construing the terms, covenants or conditions of this Agreement. Unless the context clearly
requires otherwise, (i) the plural and singular numbers shall each be deemed to include the other;
(ii) the masculine, feminine, and neuter genders shall each be deemed to include the others; (iii)
"shall," "will," or "agrees" are mandatory, and "may" is permissive; (iv) "or" is not exclusive;
20
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(v) "include," "includes" and "including" are not limiting and shall be construed as if followed
by the words "without limitation," and (vi) "days" means calendar days unless specifically
provided otherwise.
11.3 No Waiver. No delay or omission by the City or Developer in exercising any
right or power accruing upon the other Party's noncompliance or failure to perform under the
provisions of this Agreement shall impair or be construed to waive any right or power. A waiver
by City or Developer of any of the covenants or conditions to be performed by the other Party
shall not be construed as a waiver of any succeeding breach of the same or other covenants and
conditions.
11.4 Agreement is Entire Agreement. This Agreement and all exhibits attached
hereto or documents incorporated herein by reference, are the sole and entire agreement between
the Parties concerning the Property. The Parties acknowledge and agree that they have not made
any representation with respect to the subject matter of this Agreement or any representations
inducing the execution and delivery, except representations set forth herein, and each Party
acknowledges that it has relied on its own judgment in entering this Agreement. The Parties
further acknowledge that all statements or representations that heretofore may have been made
by either of them to the other are void and of no effect, and that neither of them has relied
thereon in its dealings with the other.
11.5 Estoppel Certificate. City or Developer from time to time may deliver written
notice to the other Party requesting written certification that, to the knowledge of the certifying
Party, (i) this Agreement is in full force and effect and constitutes a binding obligation of the
Parties, (ii) this Agreement has not been amended or modified either orally or in writing, or, if it
has been amended or modified, specifying the nature of the amendments or modifications, and,
(iii) the requesting Party does not have knowledge of default in the performance of its
obligations under this Agreement, or if in known default, describing therein the nature and
monetary amount, if any, of the default.
11.6 Further Documents. Each Party shall execute and deliver to the other all other
instruments and documents as may be reasonably necessary to carry out this Agreement.
11.7 Time of Essence. Time is of the essence in the performance of each and every
covenant and obligation to be performed by the Parties hereunder.
11.8 Construction. This Agreement has been reviewed and revised by legal counsel
for both the City and Developer and no presumption or rule that ambiguities shall be construed
against the drafting Party shall apply to the interpretation or enforcement of this Agreement.
11.9 Notices. Except as otherwise expressly provided herein, all notices and
demands pursuant to this Agreement shall be in writing and delivered in person, by commercial
courier or by first-class certified mail, postage prepaid. Except as otherwise expressly provided
herein, notices shall be considered delivered when personally served, upon delivery if delivered
by commercial courier, or two (2) days after mailing if sent by mail. Notices shall be sent to the
addresses below for the respective Parties; provided, however, that any Party may change its
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address for purposes of this Section by giving written notice to the other Parties. These
addresses may be used for service of process:
City: City Clerk
City of Rohnert Park
130 Avram Avenue
Rohnert Park, California 94928
with copy to: Michelle Marchetta Kenyon
City Attorney
City of Rohnert Park
1901 Harrison Street, 91h Floor
Oakland, California 94612
Applicant: Redwood Crossings RP, LLC
855 Lakeville Street, Suite 200
Petaluma, CA 94952
Attention: Chris Scerri
with copy to: Brian P. Hedstrom, Esq,
Hedstrom & Coopersmith, LLP
855 Lakeville Street, Suite 200-E
Petaluma, CA 94952
Owner: Sonoma Media Investments LLC
with a copy to:
Attention:
Attention:
The provisions of this Section shall be deemed directive only and shall not detract from the
validity of any notice given in a manner that would be legally effective in the absence of this
Section.
11.10 Developer is an Independent Contractor. Developer is not an agent or employee
of City, but is an independent contractor with full rights to manage its employees subject to the
requirements of the law. All persons employed or utilized by Developer in connection with this
Agreement are employees or contractors of Developer and shall not be considered employees of
City in any respect.
22
OAK #4847-8570-4305 v5
11. 11 No Joint Venture. It is specifically understood and agreed that the Project is a
private development. No partnership, joint venture or other association of any kind between City
and Developer is formed by this Agreement.
11.12 Nondiscrimination. Developer shall not discriminate, in any way, against any
person on the basis of race, color, national origin, gender, marital status, sexual orientation, age,
creed, religion or disability in connection with or related to the performance of this Agreement.
11.13 No Third .Party Beneficiary. This Agreement shall not be construed or deemed
to be an Agreement for the benefit of any third party or parties, and no third party or parties shall
have any claim or right of action hereunder for any cause whatsoever.
11.14 Joint and Several Liability. Owner and Applicant shall be jointly and severally
liable for all obligations of Developer under this Agreement.
[REMAINDER OF PAGE INTENTIONr1LLY LEFT BLANK]
23
OAK #4847-8570-4305 v5
IN WITNESS WHEREOF, this Agreement has been entered into by and between the
Parties as of the Effective Date.
APPROVED AS TO FORM:
By:
Michelle Marchetta Kenyon
City Attorney
ATTEST:
By:
JoAnne Buergler
City Clerk
24
OAK #4847-8570-4305 v5
CITY:
City of Rohnert Park, a
California municipal corporation
0
Darrin W. Jenkins
City Manager
APPLICANT:
Redwood Crossings RP, LLC, a
California limited liability company
By:
Name:
Sonoma Media Investments Inc., a
California limited liability company
By:
Name:
F.XHTRTT A
LEGAL DESCRIPTION
For APN/Parcel ID(s): 143-040-135-000
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ROHNERT PARK,
COUNTY OF SONOMA, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
LOT 1, AS SHOWN ON PARCEL MAP NO. 163, FILED ON AUGUST 9, 2005, IN BOOK 679 OF MAPS,
AT PAGES 44 AND 45, SONOMA COUNTY RECORDS.
EXCEPTING THEREFROM -
THAT PORTION GRANTED TO THE CITY OF ROHNERT PARK, A MUNICIPAL CORPORATION,
DESCRIBED IN THE GRANT DEED AND PUBLIC UTILITY EASEMENT, RECORDED FEBRUARY 19,
2014, INSTRUMENT NO. 2014-11929, OF OFFICIAL RECORDS.
Exhibit A
OAK #4847-8570-4305 v5
EXHIBIT B
SITE PLAN
[to be inserted]
Exhibit B
OAK #4847-8570-4305 v5
-------------------------
Architecture + Planning
888.456.5849
ktgy.com
Advanced Building Solutions
855 Lakeville Street, Ste 200
Petaluma, CA 94952
REDWOOD CROSSING
RCHNERT PARK, CA # 2018-0783
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CONCEPTUAL PLANNING
SEPTEMBER 18, 2018
Project Summary
Existing GP Land Use:
Existing Zoning:
Proposed zoning:
Site Area:
Max Density Allowed:
Overall Summary
Total units
Density:
Industrial
I -L: Industrial
R -H: High Density Residential
6.53 acres
24 du/ac (156 du)
156 du
23.9 du/ac
Unit Summary
Construction Type: Type V, 3 -story
*NSF measured to outside face of stud including 1" air gap; does not include balconies or patios
Parking Summary
Parkine Required
Required
Ratio
Total
Total Required
f
1
NSF*
Total NSF
131-1
131-2
1bd/1 ba
1bd/1 ba
32
48
21%
31%
P2-1
51%
685
755
nsf
nsf
21920
36240
nsf
nsf
38/Q
P2-1 2bd/2 ba 32
21%
1107
nsf
35424
nsf
132-2
2bd/2 ba
28
18/0
1071
nsf
29988
nsf
r7iO%
133-1 3bd/2 ba 16
10%
1262
nsf
20192
nsf
Total
206 spaces
156
2.00 sp/du
10000
922
ave. unit nsf
143,764
nsf
Density
23.9
du/ac
*NSF measured to outside face of stud including 1" air gap; does not include balconies or patios
Parking Summary
Parkine Required
Required
Ratio
# du
Total Required
131-1
1
32
32 spaces
P1-2
1
48
48 spaces
P2-1
2
32
64 spaces
P2-2
2
28
56 spaces
P3-1
2.5
16
40 spaces
Guest
0.25
156
39.00 spaces
Total
279 spaces
Parking Provided
In Garage
106 spaces
Surface parking
206 spaces
Total
2.00 sp/du
312 spaces
Building A (2)
28 DU
Building B (2)
20 DU
Building C (4)
15 DU
I 1 1 1
a 20 40 80
CONCEPTUAL SITE PLAN
(FOR INTERNAL USE ONLY)
Al 00
Archllucturu < Mompiln0 Advanced Bullding Solutions
BRB.456.5849 855LakovllleStreet, Ste 200 REDWOOD CROSSING
ktyy,r.�ini Petaluma, CA 94952 ROHNERT PARK, CA # 2018.0703
I ON
CONCEPTUAL DESIGN
AUGUST 29, 2018
L2I
ARCHITECTURAL CHARACTER
EXAMPLE IMAGERY
(FOR INTERNAL USE ONLY)
A1.1
RXNTRTT C
ASSIGNMENT AND ASSUMPTION OF
DEVELOPMENT AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Attention:
(Space Above For Recorder's Use)
ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT
AND CONSENT OF CITY
THIS ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT AND
CONSENT OF CITY (this "Assignment") is made effective as of 20 (the
"Effective Date"), by and between , a
("Assignor") and _ _ _ , a
("Assignee"), with reference to the following:
RECITALS
A. That certain real property described in Exhibit A, attached hereto and
incorporated herein by reference, (the "Property"), is subject to that certain development
agreement entered by and between the City and Assignor, which was approved pursuant to
Ordinance No. and recorded in the Official Records as Document
No. (the "Development Agreement").
B. Assignor has now entered into an with
Assignee, dated as of (the "Purchase Agreement"), pursuant to which, among
other things, Assignor has agreed to transfer and convey to Assignee all of Assignor's rights in
Property described in Exhibit B attached hereto (the "Assigned Property"), and cause Assignor
to assign to Assignee certain rights, title and interest in and to the Development Agreement.
Development of on the Assigned Property in accordance with the
Development Agreement and entitlements referred to therein is referred to herein as the
"Project."
NOW, THEREFORE, Assignor and Assignee agree as follows:
Exhibit D-1
OAK #4847-8570-4305 v5
1. Assignment. For and in consideration of the mutual covenants and agreements
contained in this Assignment, and other good and valuable consideration, the receipt and
adequacy of which is acknowledged, Assignor assigns to Assignee its rights and obligations
(referred to herein as the "Assigned Rights and Obligations") under the Development
Agreement.
2. Acceptance and Assumption. Assignee hereby accepts the assignment of the
Assigned Rights and Obligations from Assignor, and assumes and agrees to perform all of the
Assigned Rights and Obligations.
3. Further Assurances. Assignor hereby covenants that it will, at any time and from
time to time upon written request therefor, execute and deliver to Assignee, its nominees,
successors and/or assigns, any new or confirmatory instruments and do and perform any other
acts which Assignee or its nominees, successors and/or assigns may request in order to fully
transfer possession and control of, and protect the rights of Assignee and its successors and/or
assigns in, all the rights, benefits and privileges intended to be transferred and assigned hereby.
Assignee hereby covenants that it will, at any time and from time to time upon written request
therefor, execute and deliver to Assignor, its nominees, successors and/or assigns, any new or
confirmatory instruments and do and perform any other acts which Assignor or its nominees,
successors and/or assigns may request in order to fully confirm and vest in Assignor and its
successors and/or assigns in, all the obligations, rights, benefits and privileges intended to be
transferred by the acceptance and assumption herein.
4. Successors. This Assignment shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
5. Counterparts. This Assignment may be executed in counterparts, each of which
shall be deemed an original, but all of which, taken together, shall constitute one and the same
instrument.
6. Amendment. This Assignment may only be amended or modified by a written
instrument executed by all of the parties hereto with the prior written consent of the City of
Rohnert Park.
7. Governing Law. The validity, interpretation and performance of this Assignment
shall be controlled by and construed under the laws of the State of California.
8. Attorneys' Fees. Should any dispute arise between the parties hereto or their legal
representatives, successors or assigns concerning any provision of this Assignment or the rights
and duties of any person in relation thereto, the party prevailing in such dispute shall be entitled,
in addition to such other relief that may be granted, to receive from the other party all costs and
expenses, including reasonable attorneys' fees, incurred by the prevailing party in connection
with such dispute.
9. 1-ntit-e Agrce»ient. This Assignment, together with the Purchase Agreement,
constitutes the entire agreement among the parties hereto with respect to the subject matter
hereof, and supersedes all prior understandings or agreements. In the event of any conflict
Exhibit D-2
OAK #4847-8570-4305 v5
between this Assignment and the Purchase Agreement, the terms of the Purchase Agreement shall
govern and control.
10. Severability. If any term, covenant, condition or provision of this Assignment, or
the application thereof to any person or circumstance, shall to any extent be held by a court of
competent jurisdiction or otherwise by law rendered invalid, void or unenforceable, the
remainder of the terms, covenants, conditions or provisions of this Assignment, or the
application thereof to any person or circumstance, shall remain in full force and effect and shall
in no way be affected, impaired or invalidated thereby.
11. Notices. All notices shall be in writing, and shall be given in the manner
prescribed by Section 11.9 of the Development Agreement. Pursuant to Section 11.9 of the
Development Agreement, the address for Assignee is: [to be inserted]
12. Authority. Each individual executing this Assignment on behalf of a corporation
or other legal entity represents and warrants that: (a) he or she is duly authorized to execute and
deliver this Assignment on behalf of said corporation or other legal entity in accordance with and
without violating the provisions of its governing documents, and (b) this Assignment is binding
upon and enforceable against said corporation or other legal entity in accordance with its terms.
Any entity signing this Assignment on behalf of a corporation or other legal entity hereby
represents and warrants in its own capacity that it has full authority to do so on behalf of the
corporation or other legal entity.
IN WITNESS WHEREOF, the parties have entered into this Assignment as of the
Effective Date.
ASSIGNOR:
ASSIGNEE:
OAK #4847-8570-4305 v5
a
By:
Name:
Its:
a
By:-_
Name:
Its:
Exhibit D-3
CONSENT OF CITY
The City hereby consents to the foregoing Assignment and Assumption of Development
Agreement, pursuant to Section 10.1 of the Development Agreement.
CITY:
City of Rohnert Park, a municipal corporation
By:
City Manager
Approved as to Form:
By:
City Attorney
Attest:
By:
City Clerk
[The applicable Exhibit A and B will be inserted into execution version]
Exhibit D-4
OAK #4847-8570-4305 v5