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2019/09/10 City Council Resolution 2019-115 RESOLUTION NO. 2019-115 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK APPROVING A MASTER MAINTENANCE AGREEMENT AND FINAL PARCEL MAP FOR THE BELLA CREEK PROJECT (100 AVRAM AVENUE) AND ACCEPTING SUBJECT TO IMPROVEMENT OFFERS OF DEDICATION WHEREAS, on March 9, 2017, the Planning Commission of the City of Rohnert Park adopted its Resolution 2017-08 approving a Site Plan and Architectural Review for a multi- family project located across a multiple assessor's parcels at the northeast corner of Commerce Boulevard and Avram Avenue (the "Project"); and WHEREAS, the Planning Commission's approval included conditions requiring the developer to submit tentative and final maps to combine the multiple assessor's parcels on the project site into a single parcel; and WHEREAS, on May 7, 2019, the Subdivision Commission of the City of Rohnert Park adopted its Resolution 2019-02 approving a Tentative Parcel Map for the Project (the "Tentative Map"), subject to certain conditions of approval ("Conditions"); and WHEREAS, Bella Creek LLC (the "Developer") has submitted the Final Parcel Map for the Project, consisting of one parcel and an emergency vehicle access easement, storm drain easement, sidewalk easement and public access easement, for filing together with a Master Maintenance Agreement for approval; and WHEREAS,the Final Parcel Map has been reviewed by the City Engineer and City Surveyor and has been determined to be technically accurate and in conformance with the California Subdivision Map Act, the City's Municipal Code requirements set forth in Title 16 and the Tentative Map and Conditions; and WHEREAS,the Developer has complied with all Conditions that can be completed prior to filing the Final Parcel Map and the City can ensure compliance with the remaining Conditions through its building permit inspection and occupancy certification process; and WHEREAS, pursuant to Municipal Code section 16.10.200, the Developer has submitted (1) a certificate from the County Tax Collector stating that all taxes and assessments due have been paid pursuant to Government Code section 66492, and (2) verification that it has executed and filed with the Clerk of the County Board of Supervisors security for taxes and assessments pursuant to Government Code section 66493; and WHEREAS,the Developer has submitted all required certificates and submittals and paid all required fees, and the City Engineer has presented the Final Parcel Map to the City Council pursuant to Municipal Code section 16.10.190; and WHEREAS,the Final Parcel Map is consistent with the Central Rohnert Park Priority Development Area Final EIR and there are no additional impacts or changes to the project; therefore, no further CEQA analysis is required; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert Park that: 1. The Master Maintenance Agreement included as Exhibit A and incorporated herein by reference is authorized and approved subject to minor revisions approved by the City Attorney or City Manager 2. The City Council hereby finds as follows with the respect to the Tentative Parcel Map and Final Map: a. The Maps are determined to be consistent with the City's Municipal Code and the Subdivision Map Act. b. The Final Parcel Map is in substantial conformance with the Tentative Parcel Map and all Conditions required to be completed prior to filing the final parcel map have been met. 3. The Final Parcel Map attached hereto and incorporated by this reference as Exhibit B, is hereby approved and the City Council accepts, subject to improvement,the offers of dedication for an emergency vehicle access easement, storm drain easement, sidewalk easement and public access easement. 4. The City Manager is hereby authorized to take any and all further actions to effectuate the approval including executing and recordation of the Master Maintenance Agreement and recordation of the Final Parcel Map. DULY AND REGULARLY ADOPTED this 10th day of September 2019. CITY OF ROHNERT PARK 07,10 0% Gina C-lf. :, Mayor ATTEST: oAnne M. Buergler, City Clerk Attachments: Exhibit A and Exhibit B ADAMS: PUL MACKENZIE: Te_ STAFFORD: A e. CALLINAN: 1Re BELFORTE: L4�' AYES: ( JC ) NOES: ( � ) ABSENT: ( 0 ) ABSTAIN: ( ) Resolution 20,19-.115, 2 1 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Rohnert Park 130 Avram Avenue Rohnert Park, California 94928 Attention: City Clerk ) ) ) ) ) ) ) ) Exhibit A to Resolution ) (Space Above This Line for Recorder’s Use Only) Exempt from recording fee per Gov. Code § 27383. MASTER MAINTENANCE AGREEMENT Bella Creek APN 143-380-___ THIS MASTER MAINTENANCE AGREEMENT (“Agreement”) is made and entered into this ___ day of _____________, 2019, (“Effective Date”), by and between Bella Creek LLC, a California limited liability company (“Developer”), and the CITY OF ROHNERT PARK, a California municipal corporation (“City”) with reference to the following facts. City and Developer may each be referred to as a “Party” or collectively as the “Parties.” RECITALS A. Developer is the owner of that certain real property located in the City of Rohnert Park, County of Sonoma, State of California, known as the Bella Creek Project and described on Exhibit “A”, attached hereto and incorporated by this reference as if fully set forth herein (the “Property”). The Property is being developed as multifamily housing units. B. In connection with its development of the Property, the Developer obtained Site Plan and Architectural Review approval (the “Project Approvals”) on March 9, 2017 (Planning Commission Resolution No. 2017-08). The Project Approvals require the Developer to install and maintain certain public and private improvements both on the Property and along the Property frontage, which improvements are described and depicted on Exhibit “B” attached hereto and by this reference made a part hereof (the “Project Improvements” or the “Improvements”). The Project Improvements include thirteen (13) bioretention planters that provide stormwater treatment for the Property. C. In addition, the City’s National Pollutant Discharge Elimination System (“NPDES”) Municipal Separate Storm Sewer System (“MS4”) Permit, Order Number No. 2013-0001-DWQ, issued by the State Water Resources Control Board, requires the City to implement and enforce specific requirements for the construction and maintenance of onsite storm water management facilities/best management practices (collectively, “BMP”) for development, redevelopment, and other applicable projects with the goal of mitigating impacts to storm water quality and runoff volume discharges into the MS4. The City of Rohnert Park has elected to seek coverage as a co-permittee under the City of Santa Rosa’s MS4 Phase 1 Permit, Order No. R1-2009-0050. Provisions of Title 15 and other applicable sections of the Rohnert Park Municipal Code shall apply to the construction, inspection and maintenance of BMP Facilities, as defined in Recital D below, and the enforcement of MS4 Permit requirements. 2 D. On June 21, 2019, the City approved Developer’s Improvement Plans and a Final Standard Urban Stormwater Mitigation Plan (“SUSMP”) (collectively, “Plan”) for the Property which include provisions for the construction and maintenance of BMP facilities as part of the Improvements on the Property (the “BMP Facilities”) by Developer. The BMP Facilities are described in Exhibit “C” attached hereto and by this reference made a part hereof and include thirteen (13) bioretention planters. E. The City and Developer will enter into a Recycled Water Use Agreement in substantial conformance with Exhibit “D”, Recycled Water Use Agreement, for the purpose of providing recycled water for irrigation of landscaping to be installed by Developer as part of the Improvements. F. The Developer recognizes that the City’s approval of the Project Approvals is based on the Developer’s commitment to the long-term maintenance, repair, care and, if and when necessary, replacement of the Improvements and the BMP Facilities, and that the Project Approvals would not have been approved without the assurance that this Agreement would be executed by the Developer. G. The City and the Developer desire to enter into an agreement pursuant to which the Developer will maintain the Improvements within the Maintenance Area as both are depicted on Exhibit “B”, as well as the BMP Facilities shown on Exhibit “C”. AGREEMENT NOW, THEREFORE, the City and the Developer (together, the “Parties”) hereby agree as follows: 1. PURPOSE OF AGREEMENT. The purpose of this Agreement is to assure the maintenance, periodic inspection, repair, safe operation and, if and when necessary, replacement of the Improvements by the Developer at its expense in accordance with the standards, including the Maintenance Standards (defined in Section 4 below), set forth herein and the construction, inspection and maintenance of the BMP Facilities. 2. IMPROVEMENTS AS A BENEFIT. The Developer agrees that the Improvements will materially benefit the Property and that Developer’s maintenance, repair, safe operation and, if and when necessary, replacement thereof in accordance with this Agreement is necessary for approval of the Developer’s Project Approvals. 3. DEVELOPER’S RESPONSIBILITIES. Developer, at its sole expense, shall construct, install, maintain, safely operate, periodically inspect, repair, resurface and, if and when necessary, replace the Improvements identified in Exhibit “B”, as well as perform all necessary service on maintenance equipment, in order to ensure the attractive and healthy appearance of the landscaping, the attractive appearance, condition and safety of any and all structures, and the efficient operation of all of the Improvements, including paying the electrical expense of operating any pedestrian light and irrigation controller, said electrical expense to be paid by the Developer upon the direct receipt of invoices for electrical service from Pacific Gas and Electric, all in accordance with the Maintenance Standards described in Section 4 below, and industry and City standards applicable to similar improvements. 4. MAINTENANCE STANDARDS. The Developer and its maintenance staff, contractors and subcontractors shall comply with the following standards (collectively, “Maintenance Standards”) in connection with the required maintenance of the Improvements: 3 a. The Improvements shall be maintained in compliance with the Plan and Project Approvals, in good condition, and in accordance with the custom and practice generally applicable to public rights-of-way within the City of Rohnert Park. b. Landscape maintenance shall include, but not be limited to: watering/irrigation; fertilization; periodic trimming, mowing, and/or edging of grass and lawn areas; pruning of trees, shrubs, and other vegetation; trimming and shaping of trees and shrubs to maintain a healthy, natural appearance, safe road conditions and visibility, and irrigation coverage; removal and replacement, as needed, of all plant materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and staking for support of trees. c. Clean-up maintenance shall include, but not be limited to: maintenance of all sidewalks, paths and other paved areas in clean and weed-free condition; maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or unsightly; removal of all trash, litter and other debris from improvements and landscaping prior to mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris are properly disposed of by maintenance workers. d. All maintenance work shall be performed in a good and workman like manner and shall conform to all applicable federal and state Occupation Safety and Health Act standards and regulations for the performance of maintenance. e. Any and all chemicals, unhealthful substances, and pesticides used in and during maintenance shall be applied in strict accordance with all governmental requirements. Precautionary measures shall be employed recognizing that all areas are open to public access. f. Any and all requirements for use of recycled water under the Recycled Water Use Agreement. 5. CITY’S RIGHT TO PERFORM MAINTENANCE. In the event that the Developer fails to repair, periodically inspect, maintain in good working condition, care for and, if and when necessary, replace the Improvements on and about the Property in the manner set forth herein, as solely determined by City, the City may enter upon the Property and take whatever steps it deems reasonably necessary to maintain, repair, periodically inspect, care for, and replace such Improvements, or to contract for the correction of such deficiencies, after written notice to the Developer. By executing this Agreement, Developer knowingly and willfully provides consent to the City to enter on the Property and perform such maintenance work as it deems necessary. It is expressly understood that the City is under no obligation to maintain or repair the Improvements, and in no event shall this Agreement be construed to impose such an obligation on the City. a. NOTICE TO DEVELOPER. Prior to taking any such corrective action, the City agrees to notify the Developer in writing if the condition of said Improvements does not conform to the standards and requirements set forth herein, including without limitation the Maintenance Standards, and to specify the deficiencies and the actions required to be taken by the Developer to cure the deficiencies. Upon notification of any deficiency, the Developer shall have thirty (30) days from the date of the notice within which to correct, remedy or cure the deficiency. If the written notification states that the problem is urgent and relates to the public health and safety, then the Developer shall have twenty-four (24) hours to rectify the problem. b. Lien for Costs of Required Maintenance. In the event that Developer fails to correct, remedy, or cure or has not commenced correcting, remedying or curing such deficiency after 4 notification and after expiration of any applicable cure period, then the City may enter upon the Property and maintain, repair, care for and, if and when necessary, replace such Improvements at the Developer’s expense. The Developer agrees to reimburse the City within 60 days of the date of a notice identifying all charges and costs incurred by the City for such maintenance, repair and replacement work. Until so paid, the City shall have a lien on the Site for the amount of such charges or costs, which lien shall be perfected by the recordation of a “Notice of Claim of Lien” against the Property, provided City shall not record a Notice of Claim of Lien unless and until Developer fails to reimburse the City within 60 days of the notice identifying all charges and costs incurred by the City for such work. This lien shall affect all parcels jointly if portions of the Property have been sold. Any lien in favor of the City created or claimed hereunder is expressly made subject and subordinate to any mortgage or deed of trust made in good faith and for value, recorded as of the date of the recordation of the Notice of Claim of Lien, and no such lien shall in any way defeat, invalidate, or impair the obligation or priority of any such mortgage or deed of trust, unless the mortgagee or beneficiary thereunder expressly subordinates its interest, of record, to such lien. No lien in favor of the City created or claimed hereunder shall in any way defeat, invalidate, or impair the obligation or priority of any lease, sublease or easement unless such instrument is expressly subordinated to such lien. c. Legal Action. The City may bring legal action to collect the sums due as the result of expending public monies to maintain, repair and, if and when necessary, replace any Improvements which are the responsibility of the Developer as provided herein. The Developer agrees that if the City brings legal action to enforce its rights under this Section 5, the Developer shall pay the City all costs incurred by it, including reasonable attorneys’ fees and court costs, together with interest from the date the City provided notice under Section 5.a, at the rate of seven percent (7%) per annum. d. Additional Remedies. The Developer acknowledges and agrees that the City may also pursue any and all other remedies available in law or equity in the event of a breach of the Developer’s obligations and agreements set forth herein. e. Intention of City. Nothing in this Section 5 shall be construed, either expressly or by implication, as indicating an intention of the City to exercise dominion or control over the Improvements. 6. BMP FACILITIES. Developer hereby covenants, agrees and declares as follows: a. Developer shall, at its sole cost and expense, construct, inspect, and maintain the BMP Facilities, as shown on Exhibit “C” in accordance with the Plan and the SUSMP. b. Maintenance associated with the thirteen (13) bioretention planters shall include: removal of trash, weeds, debris and sediment; trimming, mowing, or replacement of vegetation; repair of ditch erosion; and periodic replacement of improvements as may be needed. c. The Developer shall submit to the City inspection reports as required by the Plan and SUSMP. The Developer shall complete maintenance or repairs noted in the inspection reports. d. In the event Developer fails to maintain the BMP Facilities in good working condition as solely determined by the City in its reasonable discretion, the City may enter upon the Property and take whatever steps it deems reasonably necessary to maintain and/or make in good working condition, such BMP Facilities. It is expressly understood that the City is under no obligation to maintain or repair the BMP Facilities, and in no event shall this Agreement be construed to impose such an obligation on the City. 5 e. In the event that the City performs work of any nature, or expends any funds in the performance of such work for labor, use of equipment, supplies, materials, or the like, due to failure of the Landowner to perform its maintenance obligations under this Agreement, as solely determined by City in its reasonable discretion, Developer shall reimburse the City within sixty (60) days of receipt of notice for all costs incurred by the City to undertake such work. Costs shall include, but are not limited to, the actual cost of construction, maintenance and/or repair, and administrative costs directly related to such work. 7. RECYCLED WATER USE. Prior to issuance of a certificate of occupancy, Developer agrees to enter into a Recycled Water Use Agreement with City in substantial conformance with Exhibit “D”, Recycled Water Use Agreement, for the purpose of providing recycled water for irrigation of landscaping to be installed by Developer as part of the Improvements. Developer agrees to perform all requirements and obligations under the Recycled Water Use Agreement. 8. NO IMPAIRMENT OF LIEN. No violation or breach of the agreements, conditions, restrictions, provisions or limitations contained in this Agreement shall defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument; provided, however, that any successor of Developer to the Site or any portion thereof shall be bound by such agreements, conditions, restrictions, limitations and provisions, whether such successor’s title was acquired by foreclosure, deed in lieu of foreclosure, trustee’s sale or otherwise. 9. ENCROACHMENT PERMIT; RIGHT OF ENTRY. The Developer and the City acknowledge that, to the extent that the Improvements are located within the City rights-of-way, the Developer shall obtain a single on-going revocable encroachment permit from the City in order for the Developer to perform its obligations under this Agreement. Such an encroachment permit shall set forth the terms and provisions upon which the Developer has a right to enter onto such rights-of-way in order to perform maintenance, inspection, repair and, if and when necessary, replacement services (collectively, “Maintenance Services”). The encroachment permit shall be issued on the terms and conditions of this Agreement. The Developer shall obtain and deliver to the City, at no cost to the City, certificates of commercial general liability insurance which indicate that the City, its elective and appointive boards, commissions, officers, agents and employees are covered as additional insureds under all insurance policies maintained for performance of the Maintenance Services and other activities by (i) the Developer or (ii) any contractor or subcontractor directly or indirectly employed by the Developer to perform any Maintenance Services or other Activities. Each of these policies shall also provide that no cancellation, major change in coverage, or expiration may be affected by the insurance company or the insured during the time of performance of the Maintenance Services and other Activities, without first giving to the City thirty (30) days’ written notice prior to the effective date of such cancellation or change in coverage. The Developer shall not permit any contractor or subcontractor to commence or continue performing Maintenance Services or other Activities until the certificates or any substitute certificates have been approved by the City’s Risk Manager. 10. VIOLATION. In addition to any remedies outline in the City’s Stormwater Permit and the Recycled Water Use Agreement, any violation of this Agreement, the Plan, SUSMP, or Recycled Water Use Agreement by Developer shall be deemed a public nuisance under Chapter 1.24, Nuisance Abatement, of the Rohnert Park Municipal Code and City shall be entitled to the remedies available to it under Chapter 1.24, in addition to the remedies available to it under Chapters 1.16 and 1.25. The remedies identified herein shall be in addition to and cumulative of all other remedies, criminal or civil, which may be pursued by the City. 6 11. PERMITS AND APPROVALS. To the extent that performance of the Maintenance Services or other Activities requires permits or governmental approvals, the Developer shall, at its sole cost and expense, obtain such permits and approvals. The City shall issue encroachment permits, from time to time, on the terms set forth in Section 9 above. 12. TERM. This Agreement shall commence immediately upon the Effective Date and shall continue in perpetuity until and unless terminated, with or without cause, by the City upon thirty (30) days written notice to Developer. 13. INDEMNIFICATION. Developer shall, to the fullest extent permitted by law, indemnify, defend and hold harmless the City and its Council, boards, offices, commissions, officials, agents and employees, from and against any liability, (including, but not limited to, liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, damages, losses, expenses or costs of any kind, including reasonable attorneys’ fees, that may be asserted by any person or entity, including Developer, whether actual, alleged or threatened, interest, defense costs, and expert witness fees), where the same relates to, or arises out of, any work performed or services provided under this Agreement by the Developer, or the Developer’s contractors, subcontractors, agents or employees, including, but not limited to, the performance of the Maintenance Services or other Activities, excepting only that resulting from the sole, active negligence or intentional misconduct of the City, its employees, officials, or agents. Developer’s duty to defend and hold harmless, as set forth herein, shall include the duty to defend as set forth in California Civil Code Section 2778. This indemnification obligation shall survive termination of this Agreement and is not limited in any way by any limitation on the amount or type of damages or compensation payable to or for the Developer or its agents under insurance policies or workers’ compensation acts, disability benefits acts or other employees’ benefits acts. If any judgment or claim against the City, its officials, agents, or employees, shall be entered, Developer shall pay all cost and expenses in connection therewith. 14. DEFAULT. The failure to maintain the Improvements will constitute an event of default. Upon such event of default, the City shall provide written notice to the Developer. Upon receipt of the written notice, the Developer shall have thirty (30) days to remedy such event of default (or such longer period of time as may reasonably be required, provided that the Developer shall commence to remedy such default within thirty (30) days period and thereafter diligently prosecute such remedy to completion). If the Developer fails to remedy the event of default within the prescribed time period, the City shall have the right to do all work necessary to remedy the event of default and charge the Developer actual costs incurred by the City for such work. 15. ASSIGNMENT BY CITY. The City shall have the right at its option to assign its rights and obligations under this Agreement to another public agency without consent of the Developer. 16. AGREEMENT ATTACHES TO LAND AND BINDS DEVELOPER’S SUCCESSORS AND ASSIGNS. This Agreement attaches to and runs with the Property in perpetuity, and shall be recorded against the Property. This Agreement binds the assigns and successors-in-interest of the Developer. The City and its successors and assigns, in the event of any breach of this Agreement, shall have the right to exercise all of the rights and remedies, and to maintain any actions at law or suits in equity or other proper proceedings against the Developer or its permitted successors and assigns to enforce the curing of such breach. 17. ASSIGNMENT BY DEVELOPER. The Developer may assign its obligations under this Agreement only with the prior written approval of the City. In connection with any such assignment, the Developer and its assignee shall execute and deliver to the City a written assignment and assumption agreement in a form acceptable to the City Attorney 7 18. NOTICES. Any notices relating to this Agreement shall be given in writing and shall be deemed sufficiently given and served for all purposes when delivered personally or by generally recognized overnight courier service, or three (3) days after deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, addressed as follows: To the Developer: __________________________________ __________________________________ __________________________________ Attn: To the City: City of Rohnert Park 130 Avram Avenue Rohnert Park, California 94928 Attn: City Manager With a copy to: City of Rohnert Park Rohnert Park City Attorney 130 Avram Avenue Rohnert Park, CA 94928 19. MISCELLANEOUS. a. Entire Agreement, Amendments. This Agreement contains the entire understanding and agreement of the parties. This Agreement may be altered, amended or modified only by an instrument in writing, executed by the Parties to this Agreement. b. Paragraph Headings. Paragraph headings as used herein are for convenience only and shall not be deemed to be a part of such paragraphs and shall not be construed to change the meaning hereof. c. Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. Venue shall be the County of Sonoma. d. Counterparts. This Agreement may be executed in any number of counterparts which together shall constitute the contract of the Parties. e. Exhibits. Any and all exhibits and schedules attached or to be attached hereto are hereby incorporated and made a part of the Agreement by reference. f. Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and effect. g. Authority. Each person executing this Agreement on behalf of a party represents and warrants that such person is duly and validly authorized to do so on behalf of the entity it purports to bind and if such party is a partnership, corporation or trustee, that such partnership, corporation or trustee has full right and authority to enter into this Agreement and perform all of its obligations hereunder. 8 h. No Agency Relationship. Neither the Developer nor any of the Developer’s agents, contractors or subcontractors are or shall be considered to be agents of City in connection with the performance of any of the Developer’s obligations under this Agreement. Nor shall City and Developer, be deemed to have become a partner of each other in the conduct of their respective business or otherwise a joint venture. i. Attorneys’ Fees and Costs. Either party may bring a lawsuit to enforce or require performance of the terms of this Agreement, and the prevailing party in such suit or proceeding shall be entitled to recover from the other party’s reasonable costs and expenses, including attorneys’ fees. [SIGNATURES ON FOLLOWING PAGE] 9 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first stated above. DEVELOPER BELLA CREEK LLC a California Limited Liability Corporation By: ____________________________ Name: __________________________ Its: ___________________________ [Signature must be notarized] CITY CITY OF ROHNERT PARK A municipal corporation ________________________________ Darrin Jenkins, City Manager Authorized by City Council Resolution 2019-___ adopted by the Rohnert Park City Council on September ___, 2019 [Signature must be notarized] APPROVED AS TO FORM: ________________________________ Michelle Marchetta Kenyon, City Attorney ATTEST: ________________________________ Jo Anne Buergler, City Clerk Exhibit “A” Legal Description of the Property Exhibit “B” Improvements and Maintenance Area [list of both public and private improvements and map of areas to be inserted] Exhibit “C” SUSMP [to be inserted] Exhibit “D” Recycled Water Use Agreement [to be inserted] Exhibit B to Resolution