2020/12/17 Planning Commission Resolution (7)PLANNING COMMISSION RESOLUTION NO. 2020-026
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ROHNERT
PARK RECOMMENDING CITY COUNCIL APPROVAL OF THE PROPOSED
AMENDED AND RESTATED DEVELOPMENT AGREEMENT BY AND AMONG THE
CITY OF ROHNERT PARK AND SOMO VILLAGE LLC AND SOMO VILLAGE
COMMERCIAL LLC FOR THE SOMO VILLAGE PROJECT LOCATED SOUTH OF
CAMINO COLEGIO, WEST OF THE SOUTHEAST SPECIFIC PLAN, EAST OF THE
SMART RAIL AND NORTH OF E. RAILROAD AVENUE (APNS 46-051-040, 46-051-
042, AND 46-051-045)
WHEREAS, the applicant, SOMO Village LLC, filed Planning Applications proposing a
Supplemental Environmental Impact Report (PLEN20-0001), amendments to the General Plan
(PLGP19-0004), an Amended and Restated Development Agreement (PLDA19-0003), a revised
Final Development Plan (PLFD2016-0001), an amendment to the Zoning Code (PLMC20-0004)
and a Tentative Map (PLSD19-0002), for the SOMO Village (“Project”) located south of Camino
Colegio, west of the Southeast Specific Plan, east of the SMART rail and north of E. Railroad
Avenue (APNs 46-051-040, 46-051-042, AND 46-051-045), in accordance with the City of
Rohnert Park Municipal Code (“RPMC”); and
WHEREAS, Government Code § 65864, et seq., authorizes the City of Rohnert Park to
enter into development agreements which will provide certainty, definition and commitment to
developers as well as to provide for necessary public improvements required by development; and
WHEREAS, Sonoma Mountain Village, LLC and KDRP LLC (collectively, “Developer”)
submitted applications to the City of Rohnert Park for a General Plan Amendment, Planned
Development (including related Conditional Use Permit), Development Agreement and rezoning
for real property located at Valley House Drive and Bodway Parkway (the “Property”); and
WHEREAS, on August 24, 2010, the City Council approved those applications allowing
development of the Property, which includes 1,892 residential units, approximately 825,307 square
feet of commercial space, and approximately 23.5 acres of park space (the “Project”); and
WHEREAS, in connection with the Project, Developer and City staff negotiated a
development agreement (“Development Agreement”) for the Project in accordance with the
requirements of Government Code § 65864, et seq., and Chapter 17.21, “Development Agreement
Procedure,” of the Rohnert Park Municipal Code (“RPMC”); and
WHEREAS, on August 24, 2010, the City Council considered and adopted Ordinance No.
825 approving the Development Agreement; and
WHEREAS, the City Council has subsequently approved three amendments to the
Development Agreement; and
WHEREAS, SOMO Village LLC and SOMO Village Commercial LLC are successors in
interest to Sonoma Mountain Village, LLC and KDRP LLC; and
WHEREAS, due to changes in the Project and the ownership structure and the completion
of certain obligations, an Amended and Restated Development Agreement has been prepared; and
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Reso 2020-026
WHEREAS, the proposed Amended and Restated DA has a 15-year term with the option
of extending for up to six years (two, three-year extensions), reflecting that intent to build-out this
large project over time.
WHEREAS, the Amended and Restated Development Agreement includes, among other
things, the following provisions:
A. Fees for public infrastructure and services, including a regional traffic fee,
public facilities financing fee, public service fee and other fees to support the project and
mitigate the project impacts.
B. A contribution towards a new fire station, including the dedication of 0.75
acres and $4.05 million towards the construction of the station.
C. An affordable housing plan for 254 affordable units, with approximately
25% identified as ownership units.
D. A dedication and improvement schedule that identifies when certain
improvements will be made to support the project and when property and easement with
be dedicated to the City.
E. The City’s intent to sell and the Developer’s intent to purchase a surplus
portion of the Bodway Parkway right-of-way, to accommodate the project.
WHEREAS, pursuant to California State Law and the Rohnert Park Municipal Code,
public hearing notices were mailed to all property owners within an area exceeding a three hundred
foot radius of the subject property and a public hearing was published in the Community Voice for
a minimum of 10 days prior to the first public hearing; and
WHEREAS, on December 17, 2020, the Planning Commission held a public hearing at
which time interested persons had an opportunity to testify either in support or opposition to the
proposed Amended and Restated Development Agreement; and
WHEREAS, the Planning Commission has reviewed and considered the information
contained in the proposed Amended and Restated Development Agreement.
NOW, THEREFORE, BE IT RESOLVED that the Planning Commission of the City of
Rohnert Park makes the following findings, determinations and recommendations with respect to
the proposed Amended and Restated Development Agreement:
Section 1. Incorporation of Recitals. The above recitations are true and correct, and are
incorporated herein by this reference.
Section 2. CEQA. The Planning Commission has recommended the certification of
the Final Supplemental Environmental Impact Report (SEIR) for the revised Project (including
the Development Agreement), and recommended the adoption of the associated CEQA
Findings, Statement of Overriding Considerations, and the Mitigation Monitoring and Reporting
Program.
Section 3. Findings for Amendment of Development Agreement. The Planning
Commission hereby makes the following findings:
A. A duly noticed public hearing regarding the proposed Development Agreement
Amendment was held by the Planning Commission on December 17, 2020, in conformance
with the notice provisions of Government Code § § 65090 and 65091 and the requirements
of the Rohnert Park Municipal Code.
B. The proposed Amended and Restated Development Agreement (Exhibit A) is
consistent with the General Plan.
C. The Planning Commission has considered other pending applications and
approved projects; the traffic, parking, public service, visual, and other impacts of the
proposed amendment upon abutting properties and the surrounding area; ability of the
applicant to fulfill public facilities financing plan obligations; the relationship of the project
to the city's growth management program; the provisions included, if any, for reservation,
dedication, or improvement ofland for public purposes or accessible to the public; the type
and magnitude of the project's economic effects to the city of Rohnert Park, and of its
contribution if any toward meeting the city's housing needs; and to any other comparable,
relevant factor and finds that:
1. The proposed Amended and Restated Development Agreement will not
result in conditions that conflict with pending applications and approved projects.
2. The proposed Amended and Restated Development Agreement will not
result in negative parking, public service, visual or other impacts on abutting property and
will enhance an existing public park.
3. The proposed Amended and Restated Development Agreement is not
inconsistent with the City's growt h management program, economic development plans or
efforts to meet the City's housing goals.
Section 4. Based on the findings set forth in this Resolution and the evidence in the staff
report considered by the Planning Commission concurrently with the proposed Amended and
Restated Development Agreement, the Planning Commission hereby recommends that the City
Council approve the Amended and Restated Development Agreement, generally in the form set
forth at Exhibit A hereto, subject to revisions approved by the City Manager and City Attorney.
DULY AND REGULARLY ADOPTED on this 17th day of December, 2020 by the City
of Rohnert Park Planning Commission by the following vote:
AYES: 1 NOES: _p_ABSENT: ip_ABSTAIN:~
DON~ ORLOFF¼
Daniel A. Blanqui
Attest ~
Recording Secr try
, o mert Park Planning Commission
Attachments: Exhibit A - Amended & Restated Development Agreement
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Reso 2020-026
Exhibit A to Resolution
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928-2486
Attention: City Clerk
Space Above This Line Reserved for Recorder's Use
Exempt from Recording Fee Per Government Code Section 27383
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF ROHNERT PARK,
AND
SOMO VILLAGE, LLC
TABLE OF CONTENTS
Page
-i-
RECITALS ................................................................................................................................ 1
AGREEMENT ............................................................................................................................... 5
ARTICLE 1 DEFINITIONS .......................................................................................................... 5
Section 1.01 Definitions.................................................................................................. 5
ARTICLE 2 EFFECTIVE DATE AND TERM .......................................................................... 10
Section 2.01 Effective Date .......................................................................................... 10
Section 2.02 Term ......................................................................................................... 10
Section 2.03 Obligations of Developer ......................................................................... 11
Section 2.04 Developer Representations and Warranties ............................................. 11
ARTICLE 3 DEVELOPMENT OF PROPERTY........................................................................ 12
Section 3.01 Vested Rights ........................................................................................... 12
Section 3.02 Applicable Law ........................................................................................ 12
Section 3.03 Development Timing ............................................................................... 12
Section 3.04 Issuance of Building Permits In Accordance with City's Growth
Management Program .............................................................................. 12
Section 3.05 Reservations of Authority. ....................................................................... 13
Section 3.06 Regulation by Other Public Agencies ...................................................... 14
Section 3.07 Life of Project Approvals......................................................................... 14
Section 3.08 Vesting Tentative Maps ........................................................................... 14
Section 3.09 Developer's Right to Rebuild ................................................................... 14
Section 3.10 No Conflicting City Enactments .............................................................. 14
Section 3.11 Initiatives and Referenda ......................................................................... 15
Section 3.12 Environmental Mitigation ........................................................................ 16
Section 3.13 Subdivision Maps..................................................................................... 16
Section 3.14 State and Federal Law .............................................................................. 17
Section 3.15 Accessory Dwelling Units ....................................................................... 18
ARTICLE 4 FINANCING AND PUBLIC IMPROVEMENTS ................................................. 18
Section 4.01 Taxes, Assessments, Fees and Exactions. ................................................ 18
Section 4.02 Regional Traffic Fee ................................................................................ 19
Section 4.03 Public Facilities Financing Plan............................................................... 21
Section 4.04 Financing Mechanisms for Public Facilities ............................................ 22
Section 4.05 Public Maintenance Payments ................................................................. 25
Section 4.06 Financing Mechanisms for Private Improvements .................................. 25
Section 4.07 Pedestrian Walkways and Bicycle Paths ................................................. 26
Section 4.08 Roadway Impact Fees. ............................................................................. 26
Section 4.09 New Bodway Roadway Improvements ................................................... 27
Section 4.10 Non-Project Stormdrain ........................................................................... 28
Section 4.11 Fire Station ............................................................................................... 28
Section 4.12 Park Improvements. ................................................................................. 28
Section 4.13 Additional Service Personnel Fee ............................................................ 29
Section 4.14 Sewer Pump Station Fee .......................................................................... 29
Section 4.15 Climate Action Plan Fee .......................................................................... 29
Section 4.16 Fee Escalation .......................................................................................... 30
TABLE OF CONTENTS
(continued)
Page
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Section 4.17 Acquisition of Bodway Right of Way ..................................................... 30
Section 4.18 Dedication, Improvement and Contribution Schedule............................. 30
ARTICLE 5 DEVELOPMENT STANDARDS AND REQUIREMENTS ................................ 31
Section 5.01 Compliance with State and Federal Law ................................................. 31
Section 5.02 Prevailing Wage Requirements................................................................ 31
Section 5.03 Sale Tax Point of Sale Designation ......................................................... 31
Section 5.04 Affordable Housing Plan ......................................................................... 32
ARTICLE 6 MORTGAGEE PROTECTION .............................................................................. 32
Section 6.01 Mortgagee Protection ............................................................................... 32
Section 6.02 Mortgagee Not Obligated ........................................................................ 32
Section 6.03 Notice of Default to Mortgagee ............................................................... 33
ARTICLE 7 COOPERATION AND IMPLEMENTATION ...................................................... 33
Section 7.01 Subsequent Project Approvals ................................................................. 33
Section 7.02 Processing Applications for Subsequent Project Approvals. ................... 33
Section 7.03 Administration of Subsequent Project Approvals.................................... 34
Section 7.04 Changes and Amendments to Project Approvals. .................................... 35
Section 7.05 Other Government Permits ...................................................................... 36
Section 7.06 Mitigation Measures ................................................................................ 36
Section 7.07 Cooperation in the Event of Legal Challenge. ......................................... 36
ARTICLE 8 ASSIGNMENT, TRANSFER AND NOTICE ....................................................... 37
Section 8.01 Assignment .............................................................................................. 37
Section 8.02 Right to Assign. ....................................................................................... 37
Section 8.03 Release of Transferring Developer .......................................................... 38
ARTICLE 9 DEFAULT; REMEDIES; TERMINATION .......................................................... 39
Section 9.01 Breach ...................................................................................................... 39
Section 9.02 Default...................................................................................................... 39
Section 9.03 Withholding of Permits ............................................................................ 39
Section 9.04 Remedies .................................................................................................. 39
Section 9.05 Periodic Review ....................................................................................... 40
Section 9.06 Enforced Delay; Extension of Time of Performance ............................... 41
Section 9.07 Resolution of Disputes ............................................................................. 42
Section 9.08 Surviving Provisions ................................................................................ 42
Section 9.09 Indemnity and Hold Harmless ................................................................. 42
ARTICLE 10 MISCELLANEOUS PROVISIONS ..................................................................... 42
Section 10.01 Incorporation of Recitals and Introductory Paragraph ............................. 42
Section 10.02 Findings.................................................................................................... 42
Section 10.03 Severability .............................................................................................. 42
Section 10.04 Construction ............................................................................................. 43
Section 10.05 Covenants Running with the Land ........................................................... 43
Section 10.06 Notices ..................................................................................................... 43
Section 10.07 Entire Agreement, Counterparts and Exhibits ......................................... 44
Section 10.08 Recordation of Development Agreement ................................................ 44
Section 10.09 No Joint Venture or Partnership .............................................................. 44
TABLE OF CONTENTS
(continued)
Page
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Section 10.10 Waivers .................................................................................................... 45
Section 10.11 California Law ......................................................................................... 45
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AMENDED AND RESTATED DEVELOPMENT AGREEMENT
THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT ("Amended
Agreement") is entered into as of the ______ day of ______________ 2020, by and between
SOMO VILLAGE, LLC, a Delaware limited liability company formerly known as SONOMA
MOUNTAIN VILLAGE, LLC, a California limited liability company1 ("SV" or “Developer”)
and the CITY OF ROHNERT PARK, a California municipal corporation ("City"). City and SV
are sometimes referred to herein as a "Party" and collectively as the "Parties."
RECITALS
A. SV and SOMO Village Commercial, LLC, a Delaware limited liability company
(“SV Commercial”) are the owners of two adjacent parcels, approximately 175 acres in total
size, which are located within the City of Rohnert Park (collectively, the “Property”). The
Property is comprised primarily of two separate, but adjacent, legal parcels. Assessor’s Parcel
Number 046-051-040 is owned by SV Commercial (the “Northern Parcel”), and Assessor’s
Parcel Number 046-051-045 is owned by SV (the “Southern Parcel”). The Northern Parcel is
presently improved with a commercial business park, comprised of buildings with approximately
580,000 leasable square feet. The Property is depicted on the Site Map attached hereto as
Exhibit A, and legally described in Exhibit B attached hereto.
B. To strengthen the public planning process, encourage private participation in
comprehensive planning and reduce the economic risk of development, the Legislature of the
State of California enacted California Government Code Section 65864, et seq. ("Development
Agreement Statute"), which authorizes the City to enter into an agreement with any person
having a legal or equitable interest in real property regarding the development of such property.
C. Pursuant to California Government Code Section 65865, City has adopted
procedures and requirements for the consideration of development agreements (City Municipal
Code Chapter 17.21). This Amended Agreement has been processed, considered and executed in
accordance with such procedures and requirements.
D. SV is a business entity formed for the purpose of developing and marketing the
project to be located on the Property.
E. SV, KDRP LLC, a California limited liability company (“KDRP”), and the City
are parties to that certain Development Agreement regarding the Property dated September 14,
2010, which was recorded on October 1, 2010 as Instrument Number 2010084467 in the Official
Records of Sonoma County, which Development Agreement has been amended and
supplemented by the following documents (collectively, the “Amendments”):
1. First Amendment to Development Agreement, recorded on June 28, 2012
as Instrument Number 2012061268 in the Official Records of Sonoma County; and
1 Sonoma Mountain Village, LLC changed its name to SOMO Village, LLC upon converting from a California
limited liability company to a Delaware limited liability company on December 30, 2016.
2
2. Second Amendment to Development Agreement recorded on December
11, 2012 as Instrument Number 2012126932, in the Official Records of Sonoma County; and
3. Letter agreement dated June 6, 2016; and
4. Letter agreement dated December 29, 2016; and
5. Third Amendment to Development Agreement recorded on May 1, 2018
as Instrument Number 2018029940, in the Official Records of Sonoma County.
F. For purposes of this Amended Agreement, the term “Original Development
Agreement” shall be construed to mean the Development Agreement dated September 14, 2010
as amended by the Amendments.
G. SV originally owned an undivided 66.67% interest in the Property and KDRP
owned an undivided 33.33% interest in the Property. However, on July 21, 2016, SV became the
sole owner of the Property by acquiring all of KDRP’s interest in the Property and assuming all
KDRP’s obligations under the Original Development Agreement.
H. On May 23, 2017, SV transferred the Northern Parcel to SV Commercial. SV
Commercial is an affiliate of SV and the entities are under common ownership and control. The
City provided consent to this transfer pursuant to that certain Partial Assignment and Assumption
and Guaranty of Development Agreement and Consent to Transfer of Real Property dated May
23, 2017 and recorded in the Official Records as Document No. 2017039907 (“Partial
Assignment”). Under the Partial Assignment, SV retained all rights and obligations under the
Original Development Agreement except for limited obligations as to the property on which
existing commercial structures are located, as shown on Exhibit C attached hereto (the “Existing
Commercial Sites”) and obligations regarding property transfer and mortgagee protection as to
the entire Northern Parcel. SV Commercial has concurrently executed an agreement confirming
that it remains obligated with respect to certain provisions under this Amended Agreement as to
the Existing Commercial Sites and Northern Parcel consistent with the terms of the Partial
Assignment, which will be recorded concurrently with this Amended Agreement (the
“Confirmation of Partial Assignment”).
I. SV and its predecessors-in-interest have completed the following improvements
as required by the Original Development Agreement:
1. Developer has completed the construction of the Soccer Field (as defined
below) at the City’s Sunrise Park.
2. Developer has made a contribution of $300,000 for the purpose of
assisting City's acquisition of a new public safety response vehicle, and the City has included a
graphic in a reasonably conspicuous location on the side of the vehicle indicating Developer's
financial contribution.
3. Developer has contributed to an off-site pedestrian walkway and bicycle
path, known as the Smart Path, commencing at the northwest corner of the Property and
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continuing to the future Sonoma-Marin Area Transit station in the City of Cotati, which has been
constructed.
J. However, Developer has not proceeded with the majority of the project described
in the Original Development Agreement. Developer now desires to amend the prior land use
approvals and the Original Development Agreement to reflect a new development plan for the
Property, which includes a fully physically integrated, mixed-use, pedestrian oriented
community providing diverse residential opportunities as well as a commercial center with a
public plaza, parks, open space, and other public amenities and infrastructure, including on- and
off-site public improvements ("Project"). The Project is intended to reflect the vision of the
City’s 2000 General Plan, as amended through the Effective Date ("General Plan"), and the
SOMO Village Planned Development Zoning District ("SV P-D Zoning District") as
established by that certain SOMO Village Revised Final Development Plan ("SV Revised Final
Development Plan"), and in compliance with City's Public Facilities Finance Plan, as it may be
amended from time to time ("PFFP").
K. Prior to approval of this Amended Agreement, City has taken numerous actions in
connection with the development of the Project on the Property, including approval of an
Environmental Impact Report (“EIR”) for the Sonoma Mountain Village project, and approvals
associated with Planning Application No. PL2006-053PD which included a General Plan
Amendment, Zone Change, and Planned Development (including a Final Development Plan)
(collectively, the “Prior Project Approvals”). The Prior Project Approvals are being amended
and supplemented by the approvals described below, which are collectively referred to herein as
the "New Project Approvals.” The Prior Project Approvals, as amended and supplemented by
the New Project Approvals are hereinafter referred to as the “Existing Project Approvals.”
1. Environmental Impact Report. The environmental impacts of the Project,
including the Existing Project Approvals and alternatives to the Project and its location, have
properly been reviewed and assessed by City pursuant to the California Environmental Quality
Act, California Public Resources Code Section 21000 et seq.; California Code of Regulations
Title 14, Section 15000 et seq. ("CEQA Guidelines"); and City's local guidelines promulgated
thereunder (hereinafter collectively referred to as "CEQA"). On , pursuant to
CEQA and in accordance with the recommendation of City's Planning Commission ("Planning
Commission"), the City Council of City ("City Council") certified a Supplemental
Environmental Impact Report for the Project ("SEIR"). As required by CEQA, City adopted
written findings and a Mitigation Monitoring and Reporting Program ("MMRP") on
, pursuant to Resolution No. .
2. General Plan Amendment. On , in accordance with the
recommendation of the Planning Commission, City Council adopted Resolution ,
amending the General Plan.
3. Municipal Code Amendments. On , in accordance with
the recommendation of the Planning Commission, City Council adopted Ordinance No. [##]
amending Chapter 17.06 Article XV.A, the SV P-D Zoning District, of the City Municipal Code
4
4. Final Development Plan and Conditional Use Permit Amendments. On
, in accordance with the recommendation of the Planning Commission, City
Council adopted Resolution No. approving amendments to the Final Development
Plan and Conditional Use Permit, subject to certain Conditions of Approval, for the Project.
5. Large Lot Tentative Map. On , in accordance with the
recommendation of the Planning Commission, City Council adopted Resolution No.
approving a Large Lot Tentative Map, subject to certain Conditions of Approval, for the Project
(“Tentative Map”).
L. Subsequent to approval of this Amended Agreement, City anticipates that
applications for additional land use approvals, entitlements, and permits will be submitted to
implement and operate the Project ("Subsequent Project Approvals").
M. This Amended Agreement furthers the public health, safety and general welfare in
that the provisions of this Amended Agreement are consistent with the General Plan, as
amended, the SV P-D Zoning District, and the SV Revised Final Development Plan. For the
reasons recited herein, City and Developer have further determined that the Project is a
development for which this Amended Agreement is appropriate. This Amended Agreement will
eliminate uncertainty regarding Existing Project Approvals and Subsequent Project Approvals,
thereby encouraging planning for, investment in and commitment to use and develop of the
Property. Continued use and development of the Property in accordance with this Amended
Agreement is anticipated to, in turn, provide the following substantial benefits and contribute to
the provision of needed infrastructure for area growth, thereby achieving the goals and purposes
for which the Development Amended Agreement Statute was enacted:
1. Provide for the orderly development of the Property and the surrounding
community.
2. Contribute to the balanced land-use base anticipated by the General Plan
and provide an effective connection between Project areas and other areas of City and
surrounding communities.
3. Result in the construction of a minimum number of Affordable Units
equal to 15% of the total number of market rate residential units and Affordable Units within the
Project.
4. Provide infrastructure improvements that will benefit the Property and the
surrounding community.
5. Provide needed market-rate housing to help meet current local housing
demand as well as anticipated future demand for housing.
6. Provide open space, parks and recreational improvements and amenities
that will benefit future property owners and the surrounding community.
7. Provide neighborhood-serving commercial, retail, office and public
facilities space.
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8. Ensure, through payment of Maintenance Fees (as defined below) and fees
required by the PFFP ("PFFP Fees"), that the residential component of the Project does not
negatively impact City's ability to provide for and fund necessary capital improvements and
services and that the Project meets General Plan Growth Management and Open Space goals and
policies.
N. The Parties intend through this Amended Agreement to allow the Developer to
develop and operate the Project in accordance with the Existing Project Approvals and
Applicable Law (as defined below), and that any Subsequent Project Approvals and the
imposition of any new impact fees, other fees, or monetary and non-monetary exactions should
be governed by the terms of this Amended Agreement.
O. City Council has found that this Amended Agreement is consistent with the
General Plan, as amended pursuant to Resolution No. _____, and the SV Revised Final
Development Plan, and has conducted all necessary proceedings in accordance with City's rules
and regulations for the approval of this Amended Agreement.
P. On __________________, 2020, City Council, at a duly noticed public hearing,
adopted Ordinance No. __________, approving and authorizing the execution of this Amended
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises, covenants and provisions set
forth herein, the receipt and adequacy of which is hereby acknowledged, the Parties agree as
follows:
ARTICLE 1 DEFINITIONS
Section 1.01 Definitions
“Acquisition Agreement” shall have the meaning set forth in Section 4.04B.(4).
"Additional Service Personnel Fee" shall have the meaning set forth in Section 4.13.
"Adjusted Deposit Amount" shall have the meaning set forth in Section 4.09B(2).
"Adjustment Date" shall have the meaning set forth in Section 4.16.
"Administrative Project Amendment" shall have the meaning set forth in Section
7.04A(1).
"Advanced Costs" shall have the meaning set forth in Section 4.04B(3).
"Affiliated Party" shall have the meaning set forth in Section 8.02A.
"Affordable Housing Plan" shall have the meaning set forth in Section 5.04.
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"Affordable Units" means residential units to be rented or sold subject to affordability
restrictions as set forth in the Affordable Housing Plan.
"Alternate Per Unit Fee Calculation" shall have the meaning set forth in Section 4.02B.
“Amended Agreement” shall have the meaning set forth in the introductory paragraph
preceding the Recitals of this agreement.
"Amendments" shall have the meaning set forth in Recital E.
"Applicable Law" shall have the meaning set forth in Section 3.02.
"Architect Fees" shall have the meaning set forth in Section 4.01G.
"Assignee" shall have the meaning set forth in Section 8.02.
“Bodway Parkway Extension” shall have meaning set forth in Section 4.09A.
"Bodway Parcel" shall have the meaning set forth in Section 4.17.
"Bodway Parkway Costs" shall have the meaning set forth in Section 4.09B.(1).
"Bodway Parkway Impact Fee" shall have the meaning set forth in Section 4.08A.
“Bodway Right of Way Acquisition Fee” shall have the meaning set forth in Section
4.17.
"CEQA" shall have the meaning set forth in Recital K.
"CEQA Guidelines" shall have the meaning set forth in Recital K.
"CFD" shall have the meaning set forth in Section 4.04B.
"CFD Bonds" shall have the meaning set forth in Section 4.04B.
"CFD Election" shall have the meaning set forth in Section 4.04B.
"Camino Colegio Impact Fee" shall have the meaning set forth in Section 4.08B.
"Changes in the Law" shall have the meaning set forth in Section 3.14A.
"City" shall have the meaning set forth in the introductory paragraph preceding the
Recitals.
"City Council" shall have the meaning set forth in Recital K.
"City Law" shall have the meaning set forth in Section 3.10.
"City Manager" means the City Manager of City.
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"Climate Action Plan Fee" shall have the meaning set forth in Section 4.15.
"Concurrent/Out-of-Order Phasing" shall have the meaning set forth in Section
3.13C(3).
“Confirmation of Partial Assignment” shall have the meaning set forth in Recital H.
"Consultant Fees" shall have the meaning set forth in Section 4.01F.
"Consumer Price Index" shall have the meaning set forth in Section 4.16.
"CPI Adjustment" shall have the meaning set forth in Section 4.16.
"Cure Period" shall have the meaning set forth in Section 9.01.
"Default" shall have the meaning set forth in Section 9.02.
"Deposit" shall have the meaning set forth in Section 4.09B(1).
"Deposit Amount" shall have the meaning set forth in Section 4.09B(2).
"Developer" or “SV” shall have the meaning set forth in the introductory paragraph
preceding the recitals.
"Development Agreement Statute" shall have the meaning set forth in Recital B.
"Development Services Director" means the Development Services Director of City.
"Effective Date" shall have the meaning set forth in Section 2.01.
“EIR” shall have the meaning set forth in Recital K.
"Eligible Cost" shall have the meaning set forth in Section 4.03C.
"Equipment" means personal property (e.g. bleachers, goals, balls, nets, and other sports
and field maintenance equipment) for City's exclusive use and as City determines necessary or
desirable to operation and maintenance of the Soccer Field.
"Existing Commercial Sites" shall have the meaning set forth in Recital H.
"Existing Project Approvals" shall have the meaning set forth in Recital K.
"Extended Cure Period" shall have the meaning set forth in Section 9.01.
"Extended Term" shall have the meaning set forth in Section 2.02B.
"Federal/State Compliance Fees" shall have the meaning set forth in Section 4.01B.
"Federal/State Permits" shall have the meaning set forth in Section 3.14B.
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"Fire Station Site" shall have the meaning set forth in Section 4.11.
"General Plan" shall have the meaning set forth in Recital J.
"Growth Management Program" shall have the meaning set forth in Section 3.04.
"Improvement Area" shall have the meaning set forth in Section 4.04B.
“Improvement Schedule” shall have the meaning set forth in Section 4.18.
“Initial Term” shall have the meaning set forth in Section 2.02A.
"KDRP" shall have the meaning set forth in Recital E.
"Maintenance Payments" shall have the meaning set forth in Section 4.05A.
"Mello-Roos Act" shall have the meaning set forth in Section 4.04B.
"Mitigation Fee Act" shall have the meaning set forth in Section 4.02A.
"MMRP" shall have the meaning set forth in Recital K.
"Mortgage" shall have the meaning set forth in Section 6.01.
"Mortgagee" shall have the meaning set forth in Section 6.01.
“New City Laws” shall mean City Laws amended, adopted, or otherwise imposed
following the Effective Date.
"Non-administrative Project Amendment" shall have the meaning set forth in Section
7.04A(2).
"Non-Project Stormdrain" shall have the meaning set forth in Section 4.10.
"Northern Parcel" shall have the meaning set forth in Recital A.
"One-Half Per Unit Fee Sum" shall have the meaning set forth in Section 4.02B(2)c.
"One-Half True-Up" shall have the meaning set forth in Section 4.02B(2)c.
"Original Deposit Amount" shall have the meaning set forth in Section 4.09B(1).
“Original Development Agreement” shall have the meaning set forth in Recital F.
"Other Local Agency Compliance Fees" shall have the meaning set forth in Section
3.10.
“Partial Assignment” shall have the meaning set forth in Recital H.
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"Party/Parties" shall have the meaning set forth in the introductory paragraph preceding
the Recitals of this Amended Agreement.
"Pavement Maintenance/Street Repaving Payment” shall have the meaning set forth in
Section 4.05B.
"PFFP" shall have the meaning set forth in Recital J.
"PFFP Fees" shall have the meaning set forth in Recital M.
"Planning Commission" shall have the meaning set forth in Recital K.
"Prevailing Wage Laws" shall have the meaning set forth in Section 5.02A.
"Private Infrastructure" shall have the meaning set forth in Section 4.06.
"Processing Fees" shall have the meaning set forth in Section 4.01E.
"Project" shall have the meaning set forth in Recital J.
"Project Approvals" shall have the meaning set forth in Section 3.01.
"Property" shall have the meaning set forth in Recital A.
"Public Facilities" shall have the meaning set forth in Section 4.04A.
“Public Service Payment" shall have the meaning set forth in Section 4.05B(2).
"Regional Traffic Fee" shall have the meaning set forth in Section 4.02A.
“SEIR” shall have the meaning set forth in Recital K.
"Sewer Pump Station Fee" shall have the meaning set forth in Section 4.14.
"Site Map" means the map of the Property attached hereto as Exhibit A.
"Soccer Field" means improvements (including site preparation work) consisting of an
international all-weather field of highest quality and suitable for multiple uses, including a soccer
field, lacrosse field, and/or general purpose sports field.
“Soccer Field Work” shall have the meaning set forth in Section 4.12(B).
"Southern Parcel" shall have the meaning set forth in Recital A.
"Special Tax" shall have the meaning set forth in Section 4.04B.
"Subdivision Map Act" shall have the meaning set forth in Section 3.08.
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"Subsequent Discretionary Approvals" shall have the meaning set forth in Section
7.01B.
"Subsequent Project Approvals" shall have the meaning set forth in Recital L.
"Subsequent Ministerial Approvals" shall have the meaning set forth in Section 7.01A.
"SV" shall have the meaning set forth in the introductory paragraph preceding the Recitals.
"SV Commercial" shall have the meaning set forth in Recital A.
"SV Revised Final Development Plan" shall have the meaning set forth in Recital J.
"SV P-D Zoning District" shall have the meaning set forth in Recital J.
“Tentative Map” shall have the meaning set forth in Recital K.
"Term" shall have the meaning set forth in Section 2.02.
"Total Per Unit Fee Sum" shall have the meaning set forth in Section 4.02B(1).
"Total Unit True-Up" shall have the meaning set forth in Section 4.02B(2)d.
"True-Up" shall have the meaning set forth in Section 4.02B(3).
"Water/Sewer Fees" shall have the meaning set forth in Section 4.01D.
ARTICLE 2 EFFECTIVE DATE AND TERM
Section 2.01 Effective Date. This Amended Agreement shall become effective upon the date
that the ordinance approving this Amended Agreement becomes effective ("Effective Date").
Section 2.02 Term. The "Term" of this Amended Agreement shall be the New Initial Term
together with any Extended Term.
A. Initial Term. The Term of this Amended Agreement shall commence
upon the Effective Date and shall extend for a period of fifteen (15) years thereafter ("Initial
Term"). The Initial Term has been established by the Parties 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.
B. Extended Term. Provided neither City nor Developer has terminated this
Amended Agreement, City and Developer agree that it may be mutually desirable for the Initial
Term to be extended. Accordingly, Developer may request in writing that City extend the Initial
Term of this Amended Agreement for up to two (2) additional three (3) year periods (each an
"Extended Term"). Such written request may be delivered to City not earlier than two hundred
seventy (270) days nor later than one hundred twenty (120) days prior to the termination date of
the then Term.
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C. City Review of Request for Extended Term. Upon receipt of such request,
City shall undertake a review of Developer's good faith compliance with the terms of this
Amended Agreement in the same manner as set forth in Section 9.05 for a periodic review of this
Amended Agreement. Developer and City shall comply with the provisions of Section 9.05 with
respect to such review so that it can be completed prior to the expiration of the then Term. City
may deny, condition or shorten the time of Developer's request for the Extended Term if,
following such review, City Council of City determines, in the exercise of its legislative
discretion, any of the following: (i) Developer is in default under this Amended Agreement or
any event has occurred which with the passage of time or giving of notice or both would
constitute a default by Developer hereunder; (ii) Developer has not fully satisfied all other
material requirements and conditions of the Project Approvals; or (iii) any delinquent unpaid
property taxes or assessments, including any delinquent installment payments supporting land-
secured bonds, are payable with respect to the Property. If the Term is extended in accordance
with the provisions of this Section 2.02, City shall record an instrument giving notice of the
Extended Term and the termination date of the Amended Agreement, as has been extended.
D. Termination Following 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 Amended Agreement shall be deemed terminated and of no further
force and effect, subject, however, to the provisions of Section 9.08 hereof.
Section 2.03 Obligations of Developer. The Parties agree and acknowledge that although SV
Commercial is the owner of the Northern Parcel, including the Existing Commercial Sites, SV
has agreed to undertake all obligations under this Amended Agreement, except for obligations in
Articles 6 and 8 as to the Northern Parcel, which are obligations of SV Commercial under the
Partial Assignment and will remain obligations of SV Commercial as confirmed in the
Confirmation of Partial Assignment.
Section 2.04 Developer Representations and Warranties. SV represents and warrants to City
that, as of the Effective Date, SV is the sole fee owner of the Southern Parcel, and that no other
person or entity holds any legal or equitable interests in the Property. SV and its manager further
represent and warrant that:
A. As of the Effective Date, SV: (i) is a duly organized and validly existing
under the laws of the State of Delaware; (ii) has qualified and been authorized to do business in
the State of California and has duly complied with all requirements pertaining thereto; (iii) is in
good standing and have all necessary powers under the laws of the State of California to own
property and in all other respects enter into and perform the undertakings and obligations under
this Amended Agreement; and (iv) is not in default with respect to payment of any general or
special property taxes or assessments or other property based fees allocable to the Property.
B. No approvals or consents of any persons are necessary for the execution,
delivery or performance of this Amended Agreement by SV, except as have been obtained;
C. The execution and delivery of this Amended Agreement and the
performance of the obligations of SV hereunder have been duly authorized by all necessary
limited liability company action and all necessary member approvals have been obtained; and
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D. This Amended Agreement is a valid obligation of SV and is enforceable in
accordance with its terms.
ARTICLE 3 DEVELOPMENT OF PROPERTY
Section 3.01 Vested Rights. The Property is hereby made subject to the provisions of this
Amended Agreement. All development of or on the Property, or any portion thereof, shall be
undertaken only in compliance with the Existing Project Approvals, Subsequent Project
Approvals, Applicable Law and the provisions of this Amended Agreement. Developer shall
have a vested right to develop the Property in accordance with the Existing Project Approvals,
the Subsequent Project Approvals, Applicable Law and this Amended Agreement. The Project
shall be subject to all Subsequent Project Approvals (which, upon final approval, shall be
deemed part of the Existing Project Approvals hereunder). The Existing Project Approvals and
the Subsequent Project Approvals are sometimes hereinafter referred to as the "Project
Approvals."
Section 3.02 Applicable Law. The rules, regulations, official policies, standards and
specifications applicable to the development of the Property shall be those set forth in the Project
Approvals and this Amended Agreement, and, with respect to matters not addressed by these
documents, those laws, rules, regulations, official policies, standards and specifications
(including City ordinances and resolutions), to the extent not inconsistent with the Project
Approvals, governing permitted uses, building locations, timing of construction, densities,
design, heights, fees, and exactions in force and effect on the Effective Date ("Applicable
Law").
Section 3.03 Development Timing. The Parties acknowledge that Developer cannot at this
time predict when or the rate at which the Project and phases of the Project will be developed.
Such decisions depend upon numerous factors which are not within the control of Developer,
such as market orientation and demand, interest rates, absorption, completion and other similar
factors. In particular, and not in any limitation of any of the foregoing, since the California
Supreme Court held in Pardee Construction Co. v. The City of Camarillo, 37 Cal.3d 465 (1984),
that the failure of the parties to consider and expressly provide for the timing of development
resulted in a later-adopted initiative restricting the timing of development prevailing over such
parties' agreement, it is the Parties' desire to avoid that result by acknowledging that Developer
shall have the vested right 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, subject to the terms,
requirements and conditions of the Existing Approvals and this Amended Agreement.
Developer will use its best efforts, in accordance with its own business judgment and taking into
consideration market conditions and other economic factors influencing Developer's business
decision, to commence or to continue development, and to develop the Project in a regular,
progressive and timely manner in accordance with the provisions of Section 3.13C below, and all
other provisions and conditions of this Amended Agreement and the Existing Approvals.
Section 3.04 Issuance of Building Permits In Accordance with City's Growth Management
Program. Developer agrees to comply with the provisions of City's Growth Management
Program (City Municipal Code Section 17.19 et seq.) ("Growth Management Program") to the
extent allowed by law, which regulates and limits the number of market rate residential building
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permits that City may issue each year. If the Growth Management Program is not in effect or
enforceable, Developer agrees to be contractually bound to the terms set forth in this Section
3.04. Developer shall be issued up to one hundred fifty (150) building permits for market rate
residential units each calendar year during the Term or such additional amount as may be
allowed pursuant to the Growth Management Program; provided, however, the total allocation of
building permits for market rate residential units within the Project shall not exceed a cumulative
total of one thousand four hundred forty (1,440) permits and issuance of such building permits
shall be in accordance with the terms of this Amended Agreement. Building permits which are
not used during the calendar year in which they are issued may be used in any subsequent
calendar year during the Term of this Amended Agreement. Developer shall submit application
to City and pay all applicable fees then due prior to issuance of any such building permits. The
building permits allocated to Developer shall be used exclusively in connection with
development of the Project on the Property and may not be transferred to any other property or
properties.
Section 3.05 Reservations of Authority.
A. The Parties 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 Amended Agreement are intended to reserve to City all of its police power which cannot
be so limited. This Amended Agreement shall be construed to reserve to City all such power and
authority which cannot be restricted by contract. Notwithstanding the foregoing reservation of
City, it is the intent of City and Developer that this Amended Agreement shall be construed to
provide Developer with the maximum rights affordable by law, including but not limited to, the
Development Agreement Statute and the Subdivision Map Act, except as expressly provided
elsewhere in this Amended Agreement.
B. Notwithstanding any other provision of this Amended Agreement to the
contrary, the following regulations and provisions shall apply to the development of the
Property:
(1) Regulations regarding processing fees and charges of every kind
and nature imposed by City to cover the actual costs to City of processing applications for
Project Approvals or for monitoring compliance with any Project Approvals granted or issued, as
such fees and charges are adjusted from time to time.
(2) Regulations relating to hearing bodies, petitions, applications,
notices, findings, records, hearings, reports, recommendations, appeals and any other matter of
procedure, provided such procedures are uniformly applied on a city-wide basis to all
substantially similar types of development projects and properties.
(3) Regulations governing construction standards and specifications
including City's building code, plumbing code, mechanical code, electrical code, fire code and
grading code, and all other uniform construction codes then applicable in City at the time of
permit application.
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(4) New City Laws which may be in conflict with this Amended
Agreement or the Project Approvals but which are necessary to protect the public health and
safety, provided such New City Laws are uniformly applied on a city-wide basis to all
substantially similar types of development projects and properties.
(5) New City Laws applicable to the Property, which do not conflict
with this Amended Agreement or the Project Approvals, provided such New City Laws are
uniformly applied on a city-wide basis to all substantially similar types of development projects
and properties.
Section 3.06 Regulation by Other Public Agencies. City and Developer acknowledge and
agree that other public agencies not within the control of City possess authority to regulate
aspects of the development of the Property separately from or jointly with City, and this
Amended Agreement does not limit the authority of such other public agencies. Developer shall,
at the time required by Developer in accordance with Developer's construction schedule, apply
for all such other 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
Project. Developer shall also pay all required fees when due to such public agencies. Developer
acknowledges that City does not control the amount of any such fees. City shall cooperate with
Developer in Developer's effort to obtain such permits and approvals; 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.
Section 3.07 Life of Project Approvals. The term of any and all Project Approvals shall
automatically be extended for the longer of the Term of this Amended Agreement or the term
otherwise applicable to such Project Approvals.
Section 3.08 Vesting Tentative Maps. If any tentative map heretofore or hereafter approved in
connection with development of the Property is a vesting map under the Subdivision Map Act,
Government Code Section 66410, et seq., ("Subdivision Map Act") and if this Amended
Agreement is determined by a final judgment to be invalid or unenforceable insofar as it grants a
vested right to Developer for development of the Project, then and to that extent all rights and
protections afforded Developer under the laws and ordinances applicable to vesting maps shall
survive. Any tentative map prepared for the Property will comply with the requirements of
Government Code Section 66473.7 and shall include a condition that sufficient water supply is
available to serve the subdivision created by such map.
Section 3.09 Developer's Right to Rebuild. City agrees that Developer may renovate or rebuild
portions of the Project at any time within the Term of this Amended Agreement should it become
necessary due to natural disaster or changes in seismic requirements. Such renovations or
reconstruction shall be processed as a Subsequent Project Approval. Any such renovation or
rebuilding shall be subject to all design, density and other limitations and requirements imposed
by this Amended Agreement, and shall comply with the Project Approvals, the building codes
existing at the time of such rebuilding or reconstruction, and the requirements of CEQA.
Section 3.10 No Conflicting City Enactments. Except as and to the extent required by State or
Federal law; or as may be reasonably necessary to comply with requirements of, and/or pass
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through rate and/or connection fee increases established by, other local governmental agencies
(other than fees addressed by the Regional Traffic Fee, as described in Section 4.02A, below),
including sub-regional sewer and water system connection fees established by the City of Santa
Rosa ("Other Local Agency Compliance Fees"); or as otherwise provided in this Amended
Agreement, including Section 3.05, City shall not impose on the Project any ordinance,
resolution, rule, regulation, standard, official policy, condition, or other measure (each,
individually, a "City Law") that is in conflict with Applicable Law, this Amended Agreement or
the Project Approvals or that reduces the development rights or assurances provided by this
Amended Agreement. Additionally, City agrees not to undertake or approve any alteration,
revision, or amendment to the SMV P-D Zoning District without Developer's prior written
consent; and City agrees not to impose conditions on Project Approvals in a manner which is
inconsistent or conflicts with the SMV P-D Zoning District or this Amended Agreement.
Without limiting the generality of the foregoing, any City Law enacted or adopted after the
Effective Date of this Amended Agreement, shall be deemed to conflict with this Amended
Agreement or reduce the development rights or assurances provided hereby if it would
accomplish any of the following results, either by specific reference to the Project or as part of a
general enactment which applies to or affects the Project:
A. Reduce the number of market rate residential units permitted to be
developed on the Property;
B. Reduce the square footage of commercial development permitted to be
developed within the Project;
C. Change any land use designation or permitted use of the Property;
D. Limit or control the availability of public utilities, services or facilities or
any privileges or rights to public utilities, services, or facilities (for example, water rights, water
connections or sewage capacity rights, sewer connections, etc.) for the Project in a manner that is
inconsistent with or more restrictive than the limitations including or imposed by the Project
Approvals, Applicable Law or this Amended Agreement;
E. Limit or control the location, configuration or size of lots, buildings,
structures, or other improvements of the Project in a manner that is inconsistent with or more
restrictive than the limitations included in or imposed by the Project Approvals, Applicable Law
or this Amended Agreement;
F. Limit or control the rate, timing, phasing or sequencing of the approval,
development or construction of all or any part of the Project in any manner, except as set forth in
this Amended Agreement, Applicable Law or the Project Approvals; or
G. Impose on the Project or Developer any fees or exactions other than those
permitted by this Amended Agreement, Applicable Law or the Project Approvals.
Section 3.11 Initiatives and Referenda. If any City Law is enacted or imposed by a citizen-
sponsored initiative or referendum, which City Law would conflict with the Project Approvals,
Applicable Law or this Amended Agreement or reduce the development rights or assurances
provided by this Amended Agreement, such City Law shall not apply to the Property or Project;
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provided, however, the Parties acknowledge that City's approval of this Amended Agreement is a
legislative action subject to referendum. Without limiting the generality of any of the foregoing,
no moratorium or other limitation (whether relating to the rate, timing, phasing or sequencing of
development) affecting subdivision maps, building permits or other entitlements to use that are
approved or to be approved, issued or granted by City shall apply to the Property or Project.
Developer agrees and understands that City does not have authority or jurisdiction over any other
public agency's ability to grant governmental approvals or permits or to impose a moratorium or
other limitations that may affect the Project. City shall cooperate with Developer and, at
Developer's expense, shall undertake such actions as may be necessary to ensure this Amended
Agreement remains in full force and effect. City, except to submit to vote of the electorate
initiatives and referendums required by law to be placed on a ballot, shall not support, adopt or
enact any City Law, or take any other action which would violate the express provisions or spirit
and intent of this Amended Agreement or the Project Approvals.
Section 3.12 Environmental Mitigation. The Parties understand that the EIR and SEIR are
intended to be used not only in connection with the Existing Project Approvals, but also in
connection with the Subsequent Project Approvals needed for the Project. Consistent with
applicable CEQA streamlining policies, City acknowledges its obligation, in connection with
Subsequent Project Approvals, not to require a supplemental or subsequent EIR, mitigated
negative declaration, or negative declaration, unless required by Public Resources Code Section
21166, and CEQA Guideline 15161 or 15162. To the extent supplemental or additional
environmental review is required in connection with Subsequent Project Approvals, Developer
acknowledges that City may require additional mitigation measures that were not foreseen at the
time this Amended Agreement was executed.
Section 3.13 Subdivision Maps.
A. A subdivision within the Project, which meets the definition of
"subdivision" in Government Code Section 66473.7(a)(1), shall include as a condition of
approval a requirement that a sufficient water supply shall be available as required by
Government Code Section 66473.7(b)(1). The Parties agree that this provision complies fully
with Section 65867.5(c) of the Development Agreement Statute.
B. The Parties intend that the final subdivision maps for the Project will be
prepared and submitted by Developer in phases such that the number of residential lots for which
a final map has been recorded will at all times track the number of residential building permits
allocated and issued to Developer. Accordingly, unless otherwise approved by City Manager or
his or her designee in his or her sole discretion, no final subdivision map shall be considered for
approval or be approved by City to the extent the sum total of all previously created residential
lots plus the number of lots shown on the proposed final map exceed the sum total of all
residential building permits previously issued to Developer plus the maximum number of
residential building permits that may be allocated to Developer pursuant to Section 3.04 above.
C. Notwithstanding the foregoing, the Parties understand and agree to the
following:
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(1) Pursuant to Government Code Section 66428(a)(2), portions of the
Property which are dedicated to City as parks, open space, public facilities, recreational uses,
and/or infrastructure may be conveyed independent from other subdivision maps for the Project;
provided, however, that such dedications shall be conveyed prior to or concurrently with the final
map in which the proposed dedications are located.
(2) In conjunction with any subdivision within the Project, Developer
shall, at a minimum, comply with the provisions of the Municipal Services Plan, incorporated in
the SV Revised Final Development Plan, which, among other things, requires Developer to show
basic capacity and infrastructure necessary to supply the particular phase being subdivided.
(3) Developer has organized the Project into phases, as provided in the
SV Revised Final Development Plan. The Parties acknowledge that Developer intends to submit
a large lot tentative tract map to establish all phases as separate parcels for development, with
each such phase to be further subdivided through the filing of one or more subsequent tentative
tract maps. Notwithstanding the foregoing, development of any particular phase may occur
concurrently with that of any other phase, or may occur out of order ("Concurrent/Out-of-Order
Phasing"), provided that (a) Developer shall obtain approval by City of tentative tract maps
corresponding to such Concurrent/Out-of-Order Phasing, (b) Developer shall comply with all
conditions of approval imposed by City on any such tentative tract maps, (c) there is adequate
infrastructure, as determined by City, to serve the phase to be developed, and (d) such
Concurrent/Out-of-Order Phasing shall not violate any requirement of the City Municipal Code
or provision of this Amended Agreement.
Section 3.14 State and Federal Law.
A. As provided in Section 65869.5 of the Development Agreement Statute,
this Amended 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 compliance with one (1) or more provisions of this Amended Agreement, the
Parties shall meet and confer in good faith in order to determine whether such provisions of this
Amended Agreement shall be modified or suspended, or performance thereof delayed, as may be
necessary to comply with Changes in the Law, and City and Developer shall agree to such action
as may be reasonably required to preserve the purpose and intent of this Amended Agreement.
This Amended Agreement and the Project Approvals shall remain in full force and effect unless
and until amended in accordance with the requirements of this Amended Agreement, and, in any
event, this Amended Agreement and the Project Approvals shall remain in full force and effect to
the extent the same are not inconsistent with such laws or regulations. Nothing in this Amended
Agreement shall preclude City or Developer from contesting by any available means (including
administrative or judicial proceedings) the applicability to the Project of any such Changes in the
Law. Notwithstanding the foregoing, if Changes in the Law preclude or substantially limit or
delay performance in a manner that makes the Project economically infeasible, the Party
adversely affected, in its sole and absolute discretion, may terminate this Amended Agreement
by providing written notice of such termination to the other Party.
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B. The Parties acknowledge that Developer has or will be submitting
applications with various State and/or Federal agencies in connection with other approvals
needed in order to undertake and complete the Project ("Federal/State Permits"). City agrees
that it will not oppose, object, or otherwise protest the applications for Federal/State Permits,
provided that such applications and the Federal/State Permits sought thereby are not inconsistent
with the terms of the Project Approvals and this Amended Agreement. Furthermore, City agrees
to provide reasonable assistance to Developer for such Federal/State Permits, provided that
Developer shall reimburse City for any costs incurred by City thereby.
Section 3.15 Accessory Dwelling Units. The Parties agree and acknowledge that the Existing
Project Approvals include 56 Accessory Dwelling Units (ADUs), which were analyzed during
the CEQA review process, and that the infrastructure for the Property was planned for the
proposed number of housing units, including ADUs. Developer agrees and acknowledges that,
notwithstanding any provision in state law, it does not intend to nor shall it develop more than 56
ADUs during the initial development of the Property.
ARTICLE 4 FINANCING AND PUBLIC IMPROVEMENTS
Section 4.01 Taxes, Assessments, Fees and Exactions.
A. Developer agrees to pay all taxes, fees, assessments and exactions which
are payable by Developer under this Amended Agreement, including Federal/State Compliance
Fees, Other Local Agency Compliance Fees, Processing Fees, Consultant Fees, Architect Fees,
Regional Traffic Fees, PFFP Fees and Maintenance Fees. Except as otherwise provided by this
Amended Agreement, City may not impose any new, increased or modified taxes, assessments,
impact fees or other monetary and non-monetary exactions on the Project, the Property or
Developer.
B. City may charge and Developer agrees to pay any new, increased or
modified taxes, assessments, impact fees or other monetary and non-monetary exactions,
whether imposed as a condition of or in connection with any Subsequent Project Approvals or
otherwise, which are uniformly imposed and reasonably necessary to comply with the
requirements of any Federal or State statute or regulation which is enacted or adopted after the
Effective Date of this Amended Agreement ("Federal/State Compliance Fees").
C. City may charge and Developer agrees to pay any new, increased or
modified taxes, assessments, impact fees or other monetary and non-monetary exactions,
whether imposed as a condition of or in connection with any Subsequent Project Approvals or
otherwise, which are uniformly imposed and reasonably necessary to comply with the
requirements of, and/or pass through, any Other Local Agency Compliance Fees.
Notwithstanding the foregoing, the provisions of this Section 4.01C shall not apply to taxes,
assessments, impact fees, or other monetary or non-monetary exactions which are satisfied by
Developer's payment of the Regional Traffic Fee imposed under this Amended Agreement.
D. City may charge and Developer agrees to pay all City fees relating to
water and sewer, including the Water Capacity Charge Program or any successor thereto
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("Water/Sewer Fees"), which are in force and effect on a City-wide basis at the time those
Water/Sewer Fees are payable at the rates then in effect.
E. City may charge and Developer agrees to pay all processing fees,
including application and inspection and monitoring fees ("Processing Fees"), for land use
approvals, grading and building permits, general plan maintenance fees, and other permits and
entitlements, which are in force and effect on a City-wide basis at the time those 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; provided, however, that Developer
retains the right to challenge increases in such fees above the amounts in effect on the Effective
Date as excessive under state law.
F. In addition to charging the foregoing Processing Fees, City may, in its sole
discretion, contract with one (1) or more outside inspectors, engineers or consultants to perform
all or any portion of the monitoring, inspection, testing and evaluation services to be performed
in connection with construction and development of the Project ("Consultant Fees").
Developer shall pay to City, within thirty (30) days following City's written demand therefor, the
full amount of all Consultant Fees, plus a twenty percent (20%) City administration charge. The
Consultant Fees, together with the associated administrative charge, shall be in addition to, and
not in lieu of, the Processing Fees; provided, however, City agrees not to double-charge
Developer (through the imposition of both a Processing Fee and Consultant Fee) for any
individual monitoring, inspection, testing or evaluation service.
G. City may engage one (1) or more outside architectural firms to review and
evaluate Developer's architectural plans and drawings for the Project, to ensure that the Project
complies with the approved architectural guidelines, and to advise City and the Design Review
Board in connection with design review. City shall cooperate with Developer in establishing a
scope of work and budget(s) for said architectural firm(s). City agrees that the scope of work to
be undertaken by the firm(s) shall be reasonable in light of the size, type and complexity of the
Project. Developer shall pay to City, within thirty (30) days following City's written demand
therefor, the full amount of all costs and fees charged by such outside architects ("Architect
Fees"), plus a twenty percent (20%) City administration charge. In addition, Developer shall
pay to City the actual cost of all City staff time incurred in connection with the review of
Developer's architectural plans and drawings.
Section 4.02 Regional Traffic Fee.
A. Developer agrees to pay, at the time of issuance of a building permit for
each residential and/or commercial unit or building within the Project, any future regional traffic
improvement impact fee enacted by City (or by City, other area municipalities and/or the County
of Sonoma) pursuant to the Mitigation Fee Act (Government Code Section 66000, et seq.)
("Mitigation Fee Act") that is consistently applied on a city-wide basis to all substantially
similar types of development projects. If no regional traffic impact fee has been enacted at the
time of issuance of a building permit for such residential or commercial unit or building, then
Developer shall pay City, at the time of permit issuance, a fee ("Regional Traffic Fee") equal to
Three Thousand Five Hundred Sixty-Five Dollars ($3,565.00) for each market rate residential
unit to mitigate the regional traffic impacts of the Project, subject to CPI Adjustment as provided
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in Section 4.16. Developer shall be entitled to a credit against the Regional Traffic Fee for
Developer's actual out-of-pocket costs paid to unaffiliated third parties, and actual out-of-pocket
costs paid to affiliated parties, so long as such affiliated parties total fees do not exceed fifteen
percent (15%), in connection with Developer's construction and installation of City-approved
regional traffic improvements, or Developer’s “fair share payments” to unaffiliated third parties,
if any. For purposes of this Section 4.02, City-approved regional traffic improvements shall
include regional roadway and traffic improvements that mitigate regional traffic impacts
identified in the SEIR or other regionally significant projects, as selected by City from time to
time in its sole discretion. Roadway and traffic improvements included within the PFFP shall
not be considered City-approved regional traffic improvements for purposes of this Section 4.02.
All Regional Traffic Fees paid by Developer shall be held by City in a separate account and used
exclusively for City-approved regional traffic improvements which mitigate regional traffic
impacts identified in the SEIR. If, within five years after the Term of this Amended Agreement,
such Regional Traffic Fees have not been committed in writing or expended by City for the
construction of regional traffic improvements that meet the criteria set forth above, City shall
return such unexpended and uncommitted Regional Traffic Fees to Developer. City in its sole
discretion shall have the option of transferring any fees paid under this Section to the Sonoma
County Transportation Authority or other agency for the purpose of planning, designing, and/or
constructing regional traffic improvements.
B. Alternate Calculation for Regional Traffic Fee. The Parties acknowledge
that certain benefits may be derived by affording Developer an alternate means to pay the
Regional Traffic Fee which would otherwise be paid by Developer on a per unit basis
("Alternate Per Unit Fee Calculation"). The right to utilize the Alternative Per Unit
Calculation is personal to Developer and may not be assigned to any subsequent purchaser,
transferee or assignee. The Alternative Per Unit Calculation shall not include any fees other than
the Regional Traffic Fee. The Parties agree that Developer shall have the option, but not the
obligation, to utilize the following method in paying such Regional Traffic Fees for development
of units pursuant to any given future tentative tract map:
(1) If Developer elects to utilize the Alternate Per Unit Fee Calculation
for development of a given tentative tract map, Developer shall provide notice to City of its
election at the time of its submittal of the pertinent tentative tract map in which all residential
units proposed for development pursuant to that tentative tract map shall be identified, and the
sum of all fees which would otherwise be charged on a per unit basis for all such units shall be
identified. Such sum ("Total Per Unit Fee Sum") shall constitute the entire amount of per unit
fees which Developer would otherwise pay for all residential units proposed with said tract. If
Developer fails to provide notice to City of its election to utilize the Alternate Per Unit Fee
Calculation at the time of its submittal of the pertinent tentative tract map, then Developer shall
pay all Regional Traffic Fees on a per unit basis and not pursuant to the Alternate Per Unit Fee
Calculation.
(2) Developer shall apportion the Total Per Unit Fee Sum among all
residential units within the tract in the manner which would most-effectively benefit
development therein, as determined by Developer; provided, however, that such apportionment
shall be subject to the following:
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a. No residential unit shall be apportioned Regional Traffic
Fees which are less than twenty-five percent (25%) of the total per unit Regional Traffic Fee
which Developer would otherwise pay in connection for such unit in the absence of this Section
4.02B(2)(a).
b. The sum of all apportioned Regional Traffic Fees for all
residential units within the tract shall equal the Total Per Unit Fee Sum for such tract.
c. Regional Traffic Fees shall be apportioned such that, upon
issuance of fifty percent (50%) of the building permits for residential units proposed for the tract,
actual Regional Traffic Fees paid as of that date will equal or exceed one-half (½) of the Total
Per Unit Fee Sum for the tract ("One-Half Per Unit Fee Sum"). In the event actual fees paid as
of that date do not equal or exceed the One-Half Unit Fee Sum, Developer shall, within ten (10)
calendar days of such determination, pay to City a "One-Half True-Up" which shall be an
amount equal to the difference between the One-Half Per Unit Fee Sum and actual Regional
Traffic Fees paid as of that date.
d. Prior to the earlier of (i) issuance of the final building
permit for residential units proposed for the tract, or (ii) release of bonds under the subdivision
agreement relating to the pertinent tract, actual Regional Traffic Fees paid as of that date will
equal or exceed the Total Per Unit Fee Sum for the tract. In the event actual Regional Traffic
Fees paid as of that date do not equal or exceed the Total Per Unit Fee Sum, Developer shall,
within ten (10) calendar days of such determination, pay to City a "Total Unit True-Up" which
shall be an amount equal to the difference between the Total Per Unit Fee Sum and the actual
fees paid as of that date.
(3) If Developer seeks to transfer any interest in any portion within a
tract in which Developer has elected to utilize the Alternative Per Unit Fee Calculation,
Developer shall, prior to any such transfer, pay to City a "True Up" which shall bring Developer
current on all Regional Traffic Fees as if paid on a per unit basis.
(4) If at any time Developer fails to strictly comply with this Section
4.02B(4), Developer shall thereafter have no right to utilize the Alternate Per Unit Fee
Calculation for any subsequent tract maps of the Project.
Section 4.03 Public Facilities Financing Plan.
A. City has prepared and adopted the PFFP in order to identify capital
facilities necessary to serve new development, and to develop a comprehensive strategy for
managing the financing of such facilities, among other purposes. Developer shall participate in
the PFFP and any amendments thereto applicable to the Project. Developer and City agree that
the terms and provisions of the PFFP shall apply to the financing of public improvements
necessary to serve the Project. A financing plan for financing all in-tract improvements shall be
submitted by Developer in conjunction with any and all tentative tract map applications for the
Project.
B. Developer shall pay City the PFFP Fees in effect at the time of issuance of
each building permit. Developer further agrees to and accepts the "fair share" methodology for
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allocating costs among planned development projects, including the Project, and existing
development within City as set forth in the PFFP as of the Effective Date. Developer
acknowledges and agrees that City may update the amount of the PFFP Fees from time to time,
as City deems necessary and appropriate. Developer hereby covenants not to sue City in
connection with, and waives any and all rights to challenge, the PFFP, including any updates to
the PFFP, on any grounds whatsoever.
C. Notwithstanding any provision of the PFFP to the contrary, Developer
shall be entitled to receive credits against PFFP Fees for those improvements included in the
PFFP and constructed by Developer, at the lesser of: (i) Developer's actual out-of-pocket costs
and expenses paid to unaffiliated third parties in connection with the construction and installation
of such improvements, or (ii) the designated cost amounts for such improvements set forth in the
PFFP at the time City approves the plans for such improvements ("Eligible Cost"). To the
extent the aggregate Eligible Cost of all PFFP improvements constructed by Developer exceeds
Developer's total PFFP Fee obligation with respect to the Project, City and Developer shall enter
into a separate reimbursement agreement, in a form reasonably acceptable to City Attorney,
whereby Developer will be reimbursed from available PFFP funds paid in the future by third
party developers at the time such funds are paid to City. City shall have the right to use PFFP
funds paid by other developers for certain critical infrastructure facilities before reimbursements
are made available to Developer. Developer shall maintain and make available to City and its
representatives, for review and/or audit from time to time, records of all costs and expenses
which are subject to potential reimbursement pursuant to the reimbursement agreement.
D. City covenants and agrees that until all such fees are credited or
reimbursed, City will administer the PFFP in a consistent manner and will require developers of
all residential and commercial projects within City to either pay their respective share of PFFP
fees, determined in accordance with the PFFP as amended from time to time, or construct PFFP
improvements in an amount equal to their respective share.
Section 4.04 Financing Mechanisms for Public Facilities.
A. Public Facilities. Developer shall finance the design and construction of
those public facilities necessary or desired by City in connection with the Project, including
(i) the off-site roadway and utility improvements; and (ii) on-site public improvements, and such
other public facilities and the impact fees related thereto as approved by City, such approval not
to be unreasonably withheld, conditioned or delayed (collectively, "Public Facilities").
B. Community Facilities District; Formation. The Parties acknowledge that
Developer's sources of funding for the Public Facilities have not been determined. Developer is
currently evaluating its options, and the Parties contemplate that the Public Facilities may be
funded by a community facilities district ("CFD") pursuant to the Mello-Roos Community
Facilities Act of 1982 (Government Code Sections 53311, et seq.) ("Mello-Roos Act"). While
Developer has the option of funding the Public Facilities privately or by other means, Developer
may, at Developer's sole and absolute discretion, elect to fund such construction through the
establishment of a CFD ("CFD Election"). Immediately following Developer's CFD Election,
Developer shall provide notice to City of its determination to fund the Public Facilities by a
CFD, in which case financing for the Public Facilities shall be provided by: (i) the formation of
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a CFD for the Property pursuant to the Mello-Roos Act, (ii) the issuance of bonds by the CFD
("CFD Bonds"), the proceeds of which would be used to construct and/or acquire the Public
Facilities upon completion of their construction, to the extent the Proposed Public Facilities
legally and feasibly may be financed and/or paid utilizing this method of financing, and (iii) an
annual levy by the CFD of a special tax ("Special Tax") sufficient to pay principal and interest
on the CFD Bonds and annual administration, engineering, and inspection costs associated with
the CFD, which CFD special tax shall be secured by recordation in the Official Records of the
County of Sonoma of continuing liens against the Property. Based on the phasing plan submitted
to the City, the Developer may identify the initial and each subsequent phase as a different
improvement area of the CFD (“Improvement Area”) under the Mello-Roos Act. The City has
determined that the Public Facilities benefit the CFD and each Improvement Area as a whole,
and therefore, any of the Public Facilities may be financed in any Improvement Area without
regard to the specific benefit to such Improvement Area. City agrees to work with Developer to
phase bond sales as necessary to satisfy the demands of the public credit market. By making
such CFD Election, Developer shall have agreed to the following:
(1) Developer's Consent. Developer shall irrevocably consent to the
formation of a CFD, the issuance of CFD Bonds, the imposition of taxes against the Property
with respect thereto, and the apportionment of the costs and expenses of the Public Facilities, and
waives any and all right of protest or objection with respect thereto. Developer has agreed to the
financing provisions set forth in this Section 4.04 and to perform the obligations hereunder in
exchange for the consideration and benefits provided to Developer by City under this Amended
Agreement, including the vested right to develop the Property. Developer acknowledges and
agrees that CFD Bonds shall not be issued to fund any on-site public improvements or any other
infrastructure or fees other than the Public Facilities.
(2) City's Reservation of Discretion. It is expressly acknowledged,
understood and agreed by the Parties that (i) City shall act independently, reserving full and
complete discretion with respect to formation of any CFD, (ii) nothing in this Amended
Agreement is intended to or shall abrogate or delegate City's discretionary powers or limit City's
ability to adopt goals and policies with respect to formation of CFD's, (iii) City undertakes no
obligation or commitment to form a CFD, and (iv) nothing in this Amended Agreement is
intended to or shall prejudge or commit to City regarding the findings and determinations to be
made with respect thereto. Without limiting the generality of the foregoing, the Parties agree
that the overall property tax rate (inclusive of property taxes, special taxes and assessments) for
each parcel included within the CFD shall in no event exceed 1.75%. Notwithstanding City
Resolution No. 2014-104 and Section 4 of the City General Plan’s Goals and Policies, Developer
reserves the ability to establish an annual increase of 2.00% in the maximum Special Tax.
Additionally, so long as the value of the property in an Improvement Area is at least equal to the
required value-to-lien ratio, City shall not require Developer or any property owner within the
Improvement Area to provide a letter of credit or other credit enhancement as security for the
payment of special taxes in the CFD.
(3) Advance of Expenses; Reimbursement. Developer shall advance
to City the actual out of pocket costs of formation of the CFD, sale of CFD Bonds, and other
costs and expenses associated with the CFD ("Advanced Costs"). Such Advanced Costs may
include, without limitation, legal, financial, appraisal and engineering costs and expenses
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associated with (i) formation of the District; (ii) determination of the rate and method of
apportionment and levy of the Special Tax; (iii) review and approval of the plans and
specifications for construction of the Public Facilities; (iv) determination of the value of
property; (v) sale of CFD Bonds; and (vi) any other costs or expenses reasonably incurred in
connection with the CFD. All such Advanced Costs, together with those reasonable out-of-
pocket legal, engineering and financial services costs incurred by Developer directly related to
establishment and implementation of the CFD which have been approved by City Manager or his
or her designee in his or her reasonable discretion and which may lawfully be financed under the
Mello-Roos Act and other applicable law, shall be reimbursed to Developer from proceeds of the
sale of CFD Bonds.
(4) Acquisition Agreement. Contemporaneously with the formation of
the CFD, Developer and City will execute an acquisition and funding agreement (“Acquisition
Agreement”) that will apply to the acquisition and construction of the Public Facilities for each
and every Improvement Area of the CFD. The Acquisition Agreement shall be structured so that
it is automatically applicable to any financing by Special Taxes levied in, or CFD bonds issued
for, a subsequent phase annexed into its respective Improvement Area of the CFD, without
requiring any modifications to the Acquisition Agreement or any further approvals by the City.
(5) Costs If No CFD Formed. In the event that City is unable to make
the legally required findings in connection with the formation of the CFD and the issuance of
CFD Bonds for any reason, City shall not be liable for any resulting costs to Developer and
Developer shall nonetheless be responsible for constructing all of the Public Facilities at its
expense (but subject to potential reimbursement of excess Eligible Costs as provided in Section
4.03C. above) regardless of whether the cost thereof exceeds Developer's PFFP Fee obligation.
(6) Notification of Fees, Taxes, and Assessments. Developer shall
provide advance and ongoing actual and conspicuous notice, in a form reasonably acceptable to
City, of any and all fees, taxes, and assessments to be charged to any and all purchasers of real
property interests in the Project. Developer shall provide potential homeowners with a written
and itemized notice of such projected costs and the manner in which they will be charged to the
potential homeowner, which notice the potential homeowner shall sign. Developer shall retain a
copy of each signed notice in Developer's files indefinitely and shall provide a copy of each such
signed notice to City's Development Services Director.
(7) Developer's Cooperation. In connection with the establishment
and implementation of the CFD, Developer (i) will execute all necessary petitions and ballots
and waive all election waiting and protest periods at City's request and prior to the issuance of
any building permit on any Phase of the Project; (ii) support City's adoption of local policies
related to use of CFD financing; (iii) cooperate in the development of rate and method of
apportionment or assessment formula; and (iv) allow special tax liens to encumber all Phases of
the Project in order to accomplish the required construction projects.
(8) Limited Liability of City. Notwithstanding any other provision of
this Amended Agreement, City shall not be liable for or obligated to pay any costs or expenses in
connection with the CFD or the Public Facilities except to the extent monies are available (from
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Advanced Costs, PFFP Fees collected in accordance with the PFFP, proceeds of CFD Bonds, or
Special Taxes) and specifically authorized by law for payment of such costs or expenses.
Section 4.05 Public Maintenance Payments.
A. Developer, and subsequent owners, associations or other parties, shall pay
annual public maintenance payments ("Maintenance Payments") to offset the projected fiscal
deficit to City's General Fund created by the residential development within the Project and to
comply with the General Plan policies and goals.
B. The following Maintenance Payments shall be paid by Developer:
(1) An annual payment ("Pavement Maintenance/Street Repaving
Payment") equal to Two Hundred Eighteen Dollars and 56 Cents ($218.56) per residential unit
for the purpose of mitigating the street maintenance and street pavement impacts of the Project,
subject to CPI Adjustment as provided in Section 4.16.
(2) An annual payment ("Public Service Payment") equal to One
Thousand One Hundred and Thirty-Five Dollars and 66 Cents ($1,135.66) per residential unit for
the purpose of mitigating the additional service costs of City as a result of the Project, subject to
CPI Adjustment as provided in Section 4.16. Payment of this Public Service Payment and the
Additional Service Personnel Fee under Section 4.13 together shall satisfy and conclusively
discharge Developer's Obligations over service personnel mitigation requirements imposed
pursuant to the EIR.
C. Developer shall pay to City the Maintenance Payments at the following
times: (i) initially, at the time of issuance of the building permit for each residential unit within
the Project; and (ii) subsequently, not later than April 30 each year following the year of initial
payment and continuing in perpetuity, provided that at least twelve (12) months shall elapse
between the date of initial payment and the first subsequent payment. Developer shall ensure the
on-going payment of the Maintenance Payments by establishment of service districts, property
owner and homeowner associations, or other mechanisms which shall be responsible for making
the annual Maintenance Payments. The Maintenance Payments 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.
D. Payment of all applicable Maintenance Payments shall satisfy and
conclusively discharge Developer's obligations to contribute toward any City general fund
maintenance annuity, excluding any sewer and water enterprise funds and other utility funds,
which Developer might otherwise be obligated to contribute toward in the absence of this
Section 4.05.
Section 4.06 Financing Mechanisms for Private Improvements. Prior to approval of the first
final map creating individual residential lots within the Project, Developer shall prepare and
submit to City Manager or his or her designee for review and approval a plan that shall include
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establishment of property owner and homeowner associations, to ensure payment of the on-going
costs of operation, maintenance, repair and replacement of the parks, landscape parkways,
medians and roundabouts, storm water treatment basin, private streets and alleys, private ‘A’
street, and private sidewalks shown in the infrastructure table and map attached hereto as Exhibit
D, and any other private utilities included within such final map, in a manner consistent with the
Municipal Services Plan approved by the City as part of the Final Development Plan ("Private
Infrastructure"). In proposing a particular plan to City, Developer shall demonstrate to the
satisfaction of City Manager or his or her designee (in his or her reasonable discretion) that
funding of such on-going costs is economically sound and feasible; approval of the mechanism
for funding such ongoing costs by the California Department of Real Estate shall create a
presumption that such funding mechanism is economically sound and reasonable. The property
owner and homeowner associations (and not City) shall be solely responsible for bearing all
costs in connection with maintenance, operation, repair and replacement of such Private
Infrastructure. City shall be named as an express third party beneficiary under all property
owner and homeowner association documents with the right to independently enforce such
associations' obligation to pay all costs of maintaining, operating and repairing the Private
Infrastructure. The form of Developer's homeowner and property owner association documents,
including conditions, covenants and restrictions, shall be subject to review and approval by City
Attorney, not to be unreasonably withheld or delayed.
Section 4.07 Pedestrian Walkways and Bicycle Paths. Developer shall construct, at
Developer's expense, and reserve for public use all pedestrian walkways and bicycle paths
described and depicted in the SV Revised Final Development Plan. All such pedestrian
walkways and bicycle paths shall be owned and maintained by Developer and/or Developer's
successor in interest, with public use secured through access easements dedicated to City or
otherwise in a form reasonably acceptable to the City Attorney.
Section 4.08 Roadway Impact Fees.
A. Developer agrees to pay a fee equal to One Million One Hundred Eighty
Thousand Two Hundred Eleven Dollars ($1,180,211), subject to CPI Adjustment as provided in
Section 4.16, for the purpose of mitigating roadway impacts on existing Bodway Parkway
caused by the Project ("Bodway Parkway Impact Fee"), as follows: (i) Five Hundred Ninety
Thousand One Hundred Six Dollars ($590,106), subject to CPI Adjustment as provided in
Section 4.16, shall be paid to City prior to the issuance of the eight hundredth (800th) residential
building permit for the Project; and (ii) Five Hundred Ninety Thousand One Hundred Five
Dollars ($590,105), subject to CPI Adjustment as provided in Section 4.16, shall be paid to City
prior to the issuance of the nine hundred forty-seventh (947th) residential building permit for the
Project.
B. Developer agrees to pay a fee equal to One Million Seven Hundred and
Eleven Thousand Three Hundred Sixty-One Dollars ($1,711,361), subject to CPI Adjustment as
provided in Section 4.16, for the purpose of mitigating roadway impacts on existing Camino
Colegio caused by the Project ("Camino Colegio Impact Fee"), as follows: (i) Eight Hundred
Fifty-Five Thousand Six Hundred Eighty-One Dollars ($855,681), subject to CPI Adjustment as
provided in Section 4.16, shall be paid to City prior to the issuance of the one thousandth
(1,000th) residential building permit for the Project; and (ii) Eight Hundred Fifty-Five Thousand
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Six Hundred Eighty Dollars ($855,680), subject to CPI Adjustment as provided in Section 4.16,
shall be paid to City prior to the issuance of the one thousand three hundred and twenty-seventh
(1,327th) residential building permit for the Project.
Section 4.09 New Bodway Roadway Improvements.
A. Unless City determines to proceed with such work as provided below in
this Section 4.09, Developer shall construct and thereafter dedicate to City roadway
improvements extending Bodway Parkway from Valley House Drive to Railroad Avenue,
including signalization of the intersection of Bodway Parkway and Railroad Avenue, as provided
for in the PFFP (“Bodway Parkway Extension”). Developer is entitled to fee credits as set forth
in Section 4.03(C); provided, however Developer shall receive credit for its out-of-pocket costs
and expenses (“Bodway Development Costs”) paid to affiliated third parties, so long as such
affiliated parties total fees do not exceed fifteen percent (15%). Construction of the Bodway
Parkway Extension shall be completed and the roadway open for public use prior to issuance of
the 846th building permit.
B. The Parties acknowledge that City, may, in its sole discretion, provide
notice to Developer that City has determined to design and construct the Bodway Parkway
Extension. In the event City provides such notice to Developer, Developer agrees to the
following terms with respect to City’s construction and Developer’s funding of the Bodway
Parkway Extension.
(1) Developer shall deposit with City prior to the issuance of the 503rd
building permit, an amount equal to the City’s estimated costs and expenses, including staff time,
incurred in connection with such permitting, design, construction and installation of the Bodway
Parkway Extension (“Deposit”). City shall maintain the Bodway Parkway Deposit in an
interest-bearing account, with interest to accrue toward all permitting, design, construction and
installation costs associated with the Bodway Parkway Extension (the “Bodway Parkway
Costs”). The Deposit plus any accrued interest shall be referred to as the “Original Deposit
Amount.”
(2) After the City opens bids for the Bodway Parkway Extension,
provided City intends to or has awarded a construction contract for the Bodway Parkway
Extension in its sole discretion, City or Developer shall adjust the Original Deposit Amount to
equal the dollar amount of the awarded construction contract together with all reasonable
additional project costs including, permitting and mitigation conditions, construction phase
engineering and management and City administrative costs and a 25 percent contingency (the
“Adjusted Deposit Amount”). If the Adjusted Deposit Amount is greater than the Original
Deposit Amount, Developer shall deposit the difference with City in cash or other immediately
available funds within ten calendar days of City’s written request. If the Original Deposit
Amount is greater than the Adjusted Deposit Amount, the City shall retain the Original Deposit
Amount, and draw down upon the Original Deposit Amount to fund construction related costs as
further described in Section 4.09.B(3) below. The amount held by the City after any adjustments
made pursuant to this Section 4.09.B(2) shall be referred to as the “Deposit Amount.”
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(3) In the event that the City determines, in its reasonable discretion,
that the actual Bodway Parkway Costs will exceed the Deposit Amount, Developer shall fund the
estimated amount of difference by depositing such amount with City in cash or other
immediately available funds within 30 calendar days of City's written request therefor and such
additional deposit shall accrue to the Deposit Amount.
(4) The City is authorized to pay or deduct from the Deposit Amount
all bills, invoices or demands for payment of Bodway Parkway Costs. City shall provide
Developer with a monthly accounting of funds paid from the Deposit Amount. Within 90 days
after the City’s recordation of a Notice of Completion for the final construction contract and/or
any contract for mitigation or monitoring work related to the Bodway Parkway Extension, City
shall reimburse Developer any remaining amount of the Deposit Amount. Further, all amounts
funded by Developer for the Bodway Parkway Extension shall be credited by City against future
PFFP fees owed by Developer.
Section 4.10 Non-Project Stormdrain. A private stormdrain currently exists on the Property
and, as part of the Project, portions of this stormdrain will be removed and replaced with a new
stormdrain as depicted on the Tentative Map (the "Non-Project Stormdrain"). The Parties
acknowledge that the private stormdrain shall remain operational until the Developer completes
and the City certifies the completion of the Non-Project Stormdrain. City agrees to accept
ownership of the Non-Project Stormdrain, and any necessary access and real property easements
therefor, upon successful testing in accordance with City’s Manual of Standards and dedication
thereof from Developer. The City Engineer shall have the right to reject and require replacement
of any and all portions of the stormdrain (including existing portions) that do not conform, in the
City Engineer's reasonable judgment, with the latest City standards. Such required dedication
shall be in the form of an irrevocable offer to dedicate in a form reasonably acceptable to City
Attorney. Prior to City's acceptance of the irrevocable offer to dedicate the Non-Project
Stormdrain, Developer, at its expense, shall cause all recorded and unrecorded monetary liens
and all recorded and unrecorded non-monetary liens, encumbrances, easements, leases,
covenants, conditions, restrictions, and other exceptions to or defects in title, excepting only the
lien for current, non-delinquent property taxes, to be removed from title.
Section 4.11 Fire Station. Developer shall dedicate the 0.75-acre fire station site (the “Fire
Station Site”) as depicted on the SV Revised Final Development Plan, on the first final map for
the Project. In addition, Developer shall contribute an amount equal to $4,050,000, subject to
annual adjustment on the Adjustment Date based on the Engineering News Record Construction
Cost Index, prior to the issuance of the 502nd building permit, which amount shall be used for the
permitting, design, construction and installation of a fire station/public safety facility to serve the
Project and other areas within City. This contribution shall not be credited towards the PFFP
Fees. Developer shall have no ongoing maintenance obligations with respect to the Fire Station
Site or with respect to the permitting, design, construction and installation of a fire station/public
safety facility on the Fire Station Site after acceptance of the Fire Station Site dedication by the
City.
Section 4.12 Park Improvements.
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A. Public Parks and Open Space. Developer, at its expense, shall construct
and reserve for public use all parks and open space areas provided in the SMV P-D Zoning
District as more particularly described in the SV Revised Final Development Plan. Ownership
of such public parks and open space areas shall be as outlined in the SV Revised Final
Development Plan, with public use secured through access easements dedicated to City or
otherwise in a form reasonably acceptable to City Attorney. Reservation of public parks and
open space areas shall be depicted in the tentative tract maps for each future phase of the Project,
and their construction shall be conditions of approval for such tentative tract maps, so that
construction and dedication of all such parks and open space areas will be completed in
conjunction with Developer's completion of each such future Project phase. To that end, no final
map for any portion of the Project shall be approved or recorded until either all public parks and
open space areas depicted in its corresponding tentative tract map have been completed and
reserved for public use as required herein, or a subdivision improvement agreement in a form
acceptable to City is entered into in accordance with Applicable Laws.
B. Improvement of Offsite Soccer Field. Developer, at its cost and expense,
was required to design, undertake and complete construction of the Soccer Field, relocate or
replicate as necessary any improvements affected by the construction of the Soccer Field, and
purchase and install Equipment (collectively, the “Soccer Field Work”). Developer completed
the Soccer Field Work prior to December 31, 2019. City adopted Resolution 2019-104,
approving and accepting the Soccer Field Work, on September 3, 2019.
Section 4.13 Additional Service Personnel Fee. Developer agrees to pay, at the time of
issuance of a building permit for each residential unit within the Project, a fee ("Additional
Service Personnel Fee") equal to Six Hundred Eighty-Four Dollars ($684.00) for the purpose of
mitigating City's costs for additional service personnel required by the Project, subject to CPI
Adjustment as provided in Section 4.16.
Section 4.14 Sewer Pump Station Fee. Developer or its successors agree to pay an annual fee
("Sewer Pump Station Fee") equal to Twenty-Two Thousand Three Hundred Ninety-Five
Dollar ($22,395), subject to CPI Adjustment as provided in Section 4.16, for the purpose of
reimbursing City's increased costs in sewer pump station operations caused by the Project. The
Sewer Pump Station Fee shall be paid annually not later than April 30 each year following the
Effective Date and shall be required in perpetuity. Developer shall ensure the on-going payment
of the Sewer Pump Station Fee by establishment of service districts, property owner and
homeowner associations, or other mechanisms which shall be responsible for making the annual
Sewer Pump Station Fee payment. The Sewer Pump Station Fee 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, which language shall be reviewed
and approved by the City Attorney.
Section 4.15 Climate Action Plan Fee. Developer agrees to pay, at the time of issuance of a
building permit for each residential unit within the Project, a fee ("Climate Action Plan Fee")
equal to Two Hundred Seventy-One Dollars and Twenty-Six Cents ($271.26) for the purpose of
mitigating the Project's impacts on City's greenhouse gas production, subject to CPI Adjustment
as provided in Section 4.16. Payment of the Climate Action Plan Fee shall satisfy and
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conclusively discharge Developer's obligations over municipal greenhouse gas mitigation
requirements imposed pursuant to the EIR. All Climate Action Plan Fees paid by Developer
shall be held by City in a separate account and used exclusively for City's efforts to reduce
greenhouse gasses in accordance with its adopted Climate Action Plan or other City-approved
greenhouse gas reduction programs.
Section 4.16 Fee Escalation. The following fees shall be subject to annual adjustment to reflect
regular increases in cost and other escalations related to inflation ("CPI Adjustment"): (i) the
Regional Traffic Fee; (ii) the Pavement Maintenance/Street Repaving Fee; (iii) the Public
Service Impact Fee; (iv) the Bodway Parkway Impact Fee; (v) the Camino Colegio Impact Fee;
(vi) Intentionally Omitted; (vii) the Additional Service Personnel Fee; (viii) the Sewer Pump
Station Fee; and (ix) the Climate Action Plan Fee. All such fees shall be subject to periodic
adjustment as follows: the amounts shall be increased on the first anniversary of the Effective
Date and each year thereafter (each, an "Adjustment Date") to equal the sum of (i) the initial
amounts set forth above, plus (ii) the product obtained by multiplying such amount by the
percentage increase in the Consumer Price Index measured from the measuring month nearest
the Effective Date, to the measuring month nearest the Adjustment Date; provided, however, in
no event shall the amounts be reduced below the initial amounts set forth above. As used herein,
the term "Consumer Price Index" means the United States Department of Labor's Bureau of
Labor Statistics Consumer Price Index, All Urban Consumer, All Items, San Francisco-Oakland-
San Jose, California (1982-1984 equals 100), or the successor of such index.
Section 4.17 Acquisition of Bodway Right of Way. Developer shall purchase, and City shall
sell and transfer, a fee interest in and to an approximately 25,000 square foot right-of-way
located adjacent to Bodway Parkway and the Northern Parcel (the "Bodway Parcel"), as
depicted on Exhibit E-1, and legally described in Exhibit E-2 attached hereto. Developer and
City agree that the fair market value for the Bodway Parcel is $1.80 per square foot (the
“Bodway Parcel Acquisition Fee”).
A. The Bodway Parcel transfer and acquisition will take place through an
escrow established with a title company selected by City. The escrow closing shall occur as
soon as practicable following the Effective Date, on a date mutually acceptable to the Parties, but
in any event within 90 days of the Effective Date. All escrow charges and recording fees shall
be borne by Developer, and Developer shall pay the cost of its owner’s policy of title insurance.
B. Escrow agent shall pay and charge Developer for that portion of current
property taxes and assessments and any penalties and interest thereon allocable to the period
after the close of escrow. Developer shall have the sole right, after close of escrow, to apply to
the Sonoma County Tax Collector for refund of any excess property taxes which have been paid
by Developer with respect to the Bodway Parcel.
C. City’s sale of the Bodway Parcel shall be subject to Developer paying City
in immediately available funds at closing the Bodway Parcel Acquisition Fee.
Section 4.18 Dedication, Improvement and Contribution Schedule. The schedule attached
hereto as Exhibit F, and incorporated herein by this reference (“Improvement Schedule”) sets
forth the timing for Developer to make significant public improvement dedications and
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contributions and construct critical public improvements. The Improvement Schedule includes
certain items required by this Amended Agreement, the Project Approvals and the MMRP and is
not intended to be an exhaustive list of all public improvement dedications, improvements and
contributions that may be required by this Amended Agreement, the Project Approvals and the
MMRP.
ARTICLE 5 DEVELOPMENT STANDARDS AND REQUIREMENTS
Section 5.01 Compliance with State and Federal Law. Developer, at its sole cost and expense,
shall comply with requirements of, and obtain all permits and approvals required by, regional,
State and Federal agencies having jurisdiction over the Project.
Section 5.02 Prevailing Wage Requirements.
A. Developer acknowledges and agrees that all improvements paid for
directly or indirectly with the proceeds of CFD Bonds or other 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, 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," including the payment of prevailing wages
in connection with the applicable portions of the Project (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. Developer shall also include in each of its contractor agreements, a provision in form
acceptable to City, obligating the contractor to require its contractors and/or subcontractors to
comply with Prevailing Wage Laws with respect to required portions of the Project, 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 reasonably acceptable to 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.
Section 5.03 Sale Tax Point of Sale Designation. Developer shall use good faith efforts to
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
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Sales and Use Tax Law (Revenue & Taxation Code Sections 7200, et seq. and implementing
regulations) on the sale of such bulk construction and building materials and components.
Section 5.04 Affordable Housing Plan. Developer shall comply with the provisions of the
Affordable Housing Plan for the Project, attached hereto as Exhibit G ("Affordable Housing
Plan"). City may administratively approve minor modifications to the Affordable Housing Plan.
Developer's compliance with all provisions of the Affordable Housing Plan shall be deemed to
satisfy Developer's obligations under City's inclusionary zoning ordinance (City Municipal Code
Section 17.07.020(N)).
ARTICLE 6 MORTGAGEE PROTECTION
Section 6.01 Mortgagee Protection. This Amended Agreement shall be superior and senior in
all respects to any lien placed upon the Property or any portion thereof after the date of recording
of the Amended Agreement, including the lien of any deed of trust or mortgage.
Notwithstanding anything to the contrary set forth in this Amended Agreement, including,
without limitation, Section 10.05 hereof, this Amended Agreement shall be subordinate and
junior in all respects to any lien placed upon the Property or any portion thereof before the date
of recording of this Amended Agreement, including the lien of any deed of trust or mortgage.
No breach hereof shall defeat, render invalid, diminish or impair the lien of any deed of trust or
mortgage, whether recorded before or after the date of recording of this Amended Agreement (as
the same may be amended or otherwise modified from time to time, "Mortgage") made in good
faith and for value, but all of the terms and conditions contained in this Amended Agreement
shall be binding upon and effective against and shall run to the benefit of any person or entity,
including any deed of trust beneficiary or mortgagee ("Mortgagee"), who acquires title or
possession to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of
foreclosure or otherwise.
Section 6.02 Mortgagee Not Obligated. Notwithstanding the provisions of Section 6.01 above,
no Mortgagee shall have any obligation or duty under this Amended Agreement to perform any
obligation of Developer under this Amended Agreement, including, without limitation, the
obligation to construct or complete the construction of improvements, or to guarantee such
construction or completion; provided, however, that 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 this Amended Agreement, or otherwise under the Project Approvals.
Notwithstanding the foregoing provision, if any improvements located on the Property or any
portion thereof that are encumbered by a Mortgage recorded against the Property or any portion
thereof before the date of recording of this Amended Agreement are damaged by any casualty
event or are taken by eminent domain, the Mortgagee under such Mortgage shall be permitted,
free of any restriction or requirement set forth in this Amended Agreement, including, without
limitation compliance with the Project Approvals, to re-construct, or cause Developer to re-
construct, such improvements to the same size and configuration as in effect prior to any such
casualty or taking. Nothing in the foregoing is intended to, nor shall it, modify any of
Developer's obligations under this Amended Agreement, including obligations to City.
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Section 6.03 Notice of Default to Mortgagee. If City receives a notice from a Mortgagee
requesting a copy of any notice of default given Developer hereunder and specifying the address
for service thereof, then City agrees to use its best efforts to deliver to such Mortgagee,
concurrently with service thereon to Developer, any notice given to Developer with respect to
any claim by City that Developer has committed an event of default, and if City makes a
determination of noncompliance hereunder, City shall likewise use its best efforts to serve notice
of such noncompliance on such Mortgagee concurrently with service thereon on Developer.
Each Mortgagee shall have the right during the same period available to Developer to cure or
remedy, or to commence to cure or remedy, the event of default claimed or the areas of
noncompliance set forth in City's notice. If a Mortgagee shall be required to obtain possession in
order to cure any default, then vis-à-vis the Mortgagee, the time to cure shall be tolled so long as
the Mortgagee is attempting to obtain possession, including by appointment of a receiver or
foreclosure but in no event may this period exceed one hundred twenty (120) days from City's
notice.
ARTICLE 7 COOPERATION AND IMPLEMENTATION
Section 7.01 Subsequent Project Approvals. Developer and City acknowledge and agree that
Developer intends to submit applications for Subsequent Project Approvals, including both
Subsequent Ministerial Approvals and Subsequent Discretionary Approvals. In connection with
any Subsequent Project Approval, City shall exercise its discretion in accordance with
Applicable Law, the Project Approvals and, as provided by this Amended Agreement, including
the reservations of authority set forth in Section 3.05.
A. Subsequent Ministerial Approvals ("Subsequent Ministerial Approvals")
are 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.
B. All other Subsequent Project Approvals, including amendments of the
Project Approvals, site development plan approvals, Commercial Core development area plan,
improvement agreements, architectural review permits, use permits, lot line adjustments,
subdivision maps, preliminary and final development plans, 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
Discretionary Approvals").
Section 7.02 Processing Applications for Subsequent 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 its best 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
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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, to the full extent
allowed by law, promptly 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 including:
(i) providing at Developer's expense and subject to Developer's request and prior approval,
reasonable overtime staff assistance, additional staff and/or staff consultants for concurrent,
expedited planning and processing of each pending Subsequent Project Approval application;
(ii) if legally required, providing notice and holding public hearings; and (iii) acting on any such
pending Subsequent Project Approval application.
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 Amended
Agreement and the Existing Project Approvals shall be processed and considered in a manner
consistent with the vested rights granted by this Amended 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 this Amended 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
reports, analysis or studies to assist in determining that the requested Subsequent Ministerial
Approval is consistent with this Amended Agreement and the Existing Project Approvals. If
City determines that an application for a Subsequent Ministerial Approval is not consistent with
this Amended Agreement or the Existing Project Approvals and should be processed as an
application for a Subsequent Discretionary Approval rather than a Subsequent Ministerial
Approval, 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 Amended Agreement and the Existing
Project Approvals, as the case may be, or City shall process the application as an application for
a Subsequent Discretionary Approval; provided, however, that Developer shall have the right to
dispute City's determination pursuant to Section 9.07 hereof.
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.
Section 7.03 Administration of Subsequent Project Approvals.
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A. Subsequent Ministerial Approvals shall be reviewed and processed by
City in accordance with Applicable Law. If City denies any application for a Subsequent
Ministerial Approval, City must specify in writing the reasons for such denial and may suggest a
modification which would be approved. Any such specified modifications must be consistent
with the Existing Project Approvals and Applicable Law, and City shall approve the application
if it is subsequently resubmitted for City review and addresses the reason for the denial in a
manner that is consistent with this Amended Agreement, the Project Approvals and Applicable
Law.
B. Applications for Subsequent Discretionary Approvals shall be reviewed
and processed by City in accordance with Applicable Law. If City denies any application for a
Subsequent Discretionary Approval, City must specify in writing the reasons for such denial and
may suggest a modification which would be approved. Any such specified modifications must
be consistent with this Amended Agreement and Applicable Law, and City shall consider the
application if it is subsequently resubmitted for City review and addresses the reason for the
denial in a manner that is consistent with this Amended Agreement, the Project Approvals and
Applicable Law.
Section 7.04 Changes and Amendments to Project Approvals.
A. Given the long term build-out of the Project, the Parties 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:
(1) Upon the written request of Developer for an amendment or
modification to a Project Approval, the Development Services Director or his or her designee
shall determine: (i) whether the requested amendment or modification is minor when considered
in light of the Project as a whole; and (ii) whether the requested amendment or modification is
consistent with this Amended Agreement and Applicable Law. If the Development Services
Director or his or her designee finds that the proposed amendment or modification is minor,
consistent with this Amended Agreement and Applicable Law, and will result in no new
significant impacts not addressed and mitigated in the EIR or SEIR, the amendment shall be
determined to be an "Administrative Project Amendment" and the Development Services
Director or his or her designee 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. Without limiting the generality of the foregoing, lot line
adjustments; reductions in the density, intensity, scale or scope of the Project that do not affect
either Developer's obligations to provide affordable housing or neighborhood serving
commercial/retail uses or change the scope of development from that contemplated in this
Amended Agreement; alterations in vehicle circulation patterns or vehicle access points which
do not adversely affect capacity or service levels; substitutions of comparable landscaping for
any landscaping shown on any final development plan or landscape plan; variations in the
location of structures that do not substantially alter the design concepts of the Project; variations
in the location or installation of utilities and other infrastructure connections or facilities that do
not substantially alter the design concepts of the Project; and minor adjustments to the Property
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or legal description of subdivision limits or lots shall be treated as Administrative Project
Amendments.
(2) Any request of Developer for an amendment or modification to a
Project Approval which is determined by the Development Services Director or his or 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 and consideration by
the City pursuant to the Project Approvals, Applicable Law and this Amended Agreement, as
applicable.
(3) Neither Administrative nor Non-administrative Project
Amendments shall require an amendment to this Amended Agreement.
B. Parcel Adjustments; Approval of Phased Final Maps. City and Developer
acknowledge that as the development of the Project proceeds, Developer will submit tentative
tract maps for various phases and other portions of the Project and that, subsequent to the filing
of such maps, it may be necessary to adjust the configuration of subdivision lots as shown on the
originally-filed maps.
Section 7.05 Other Government Permits. City shall cooperate with Developer, to the extent
appropriate and as permitted by law, in Developer's efforts to obtain, as may be required, permits
and approvals from other governmental or quasi-governmental entities.
Section 7.06 Mitigation Measures. Developer and City shall comply with the MMRP as it
applies to the Project, including the construction of all traffic improvements and mitigation
measures set forth in the MMRP.
Section 7.07 Cooperation 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 Amended Agreement, any Existing Project
Approvals or any Subsequent Project Approvals and City shall, upon request of Developer,
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 therefor, 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. 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 Amended 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.
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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, up to a maximum amount of One Hundred Thousand Dollars
($100,000), 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, without regard to the above dollar amount cap.
ARTICLE 8 ASSIGNMENT, TRANSFER AND NOTICE
Section 8.01 Assignment. No sale, transfer or assignment of all or a portion of the Property, or
creation of a joint venture or partnership, shall require the amendment of this Amended
Agreement.
Section 8.02 Right to Assign.
A. Because of the necessity to coordinate development of the entirety of the
Property pursuant to the SV Revised Final Development Plan and the SV P-D Zoning District,
particularly with respect to the provision of on- and off-site public improvements and public
services, certain restrictions on the right of Developer to assign or transfer its interest under this
Amended Agreement with respect to the Property, or any portion thereof, are necessary in order
to assure the achievement of the goals, objectives and public benefits of the SV P-D Zoning
District and this Amended Agreement. Developer agrees to and accepts the restrictions set forth
in this Section 8.02 as reasonable and as a material inducement to City to enter into this
Amended Agreement. For purposes of this Section 8.02, a change in the identity of the initial
managing member of SV (including the sale or transfer, in the aggregate, of the controlling stock
or interest in said managing member) shall be deemed a transfer by Developer subject to the
provisions of this Section. Developer shall have the right to sell, transfer, ground lease or assign
the Property in whole or in part (provided that no such partial transfer shall violate the provisions
of the Subdivision Map Act) to any person, partnership, joint venture, firm, company or
corporation (any of the foregoing, an "Assignee") subject to the written consent of City;
provided that Developer may assign its rights under this Amended Agreement without the
consent of City to any corporation, limited liability company, partnership or other entity which is
controlling of, controlled by, or under common control with SV, as applicable, 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 owners of such entity
("Affiliated Party"). City's consent shall not be unreasonably withheld, delayed or conditioned,
and City shall consent if the Assignee reasonably demonstrates to City that it is able to perform
the obligations of Developer under this Amended Agreement. Assignee shall succeed to the
rights, duties and obligations of Developer only with respect to the parcel or parcels of all or a
portion of the Property so purchased, transferred, ground leased or assigned, and Developer shall
continue to be obligated under this Amended Agreement with respect to all portions of the
Property retained by Developer, and with respect to the dedication and installation of all
infrastructure improvements to be provided by Developer, pursuant to the Project Approvals, and
the PFFP. Notwithstanding any other provision of this Article 8, in no event shall Developer
assign its rights under Section 4.02(B), which are personal to Developer. Any attempt
assignment of Developer’s rights under Section 4.02(B) shall be deemed void.
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B. The sale, transfer, lease or assignment of any right or interest under this
Amended Agreement shall be made only together with the sale, transfer, ground lease or
assignment of all or a part of the Property. Concurrently with any such sale, transfer, ground
lease or assignment, Developer shall (i) notify City in writing of such sale, transfer or ground
lease; and (ii) Developer and Assignee shall provide a written assignment and assumption
agreement in form reasonably acceptable to City Attorney pursuant to which Assignee shall
assume and succeed to the rights, duties and obligations of Developer with respect to the parcel
or parcels of all or a portion of the Property so purchased, transferred, ground leased or assigned.
C. Subject to City's written consent as provided in Section 8.02A, City, upon
request of Developer or Assignee, and following compliance with the notification provisions
above, shall provide Assignee with a certificate of agreement compliance, stating that this
Agreement remains valid and in full force and effect and is binding upon City, Developer and the
Assignee as of the last Annual Review pursuant to the provisions of Section 9.05, except that if
City knows of any non-compliance, City shall not be required to issue a certificate of Agreement
compliance.
Section 8.03 Release of Transferring Developer. Except with respect to a Permitted transfer
and assignment under Section 8.01 to an Affiliated Party, notwithstanding any sale, transfer or
assignment of all or a portion of the Property, Developer shall continue to be obligated under this
Amended Agreement as to all or the portion of the Property so transferred unless City is satisfied
the Assignee is fully able to comply with Developer's obligations under this Amended
Agreement (both financially and otherwise) and Developer is given a release in writing.
Developer shall provide to City all information reasonably necessary for City to determine the
financial and other capabilities of Assignee. Such release shall be provided by City upon
Developer's full satisfaction of all of the following conditions:
A. City is reasonably satisfied that Assignee is fully able to comply with
Developer's obligations under this Amended Agreement (both financially and otherwise).
B. A showing by Developer that Developer no longer has a legal or equitable
interest in the portion of the Property (which may be all of the Property) for which a release is
requested.
C. Developer is not then in Default under this Amended Agreement and has
received no Notice to Cure.
D. Developer has provided City with notice and the fully executed
assignment and assumption agreement.
E. Assignee provides City with security equivalent to any security previously
provided by Developer to secure performance of its obligations hereunder, if any.
Notwithstanding any other provision hereof to the contrary, if Developer only transfers a
portion of the Property, then Developer shall continue to be obligated under this Amended
Agreement with respect to the balance of the Property not so transferred.
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ARTICLE 9 DEFAULT; REMEDIES; TERMINATION
Section 9.01 Breach. Subject to extensions of time under Section 9.06 or by mutual consent in
writing, the failure or delay by either Party to perform any term or provision of this Amended
Agreement shall constitute a breach of this Amended Agreement. In the event of alleged breach
of any terms or conditions of this Amended 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. Subject to the provisions of Section 9.06, the
Extended Cure Period shall in no event exceed one hundred twenty (120) days unless otherwise
agreed by the parties. 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
City's right to refuse to issue a permit or Subsequent Project Approval, under Section 9.03, 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.
Section 9.02 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 this Amended Agreement, institute legal
proceedings pursuant to this Amended Agreement and shall have such remedies as are set forth
in Section 9.04 below.
Section 9.03 Withholding of Permits. In the event of a Default by Developer, or following
notice of breach by Developer and during the Cure Period or Extended Cure Period, upon a
finding by City Planning Director that Developer is in serious and substantial breach, 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 Amended 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.
Section 9.04 Remedies.
A. In the event of a Default by City or Developer, the non-defaulting Party
shall have the right to terminate this Amended 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 review in the manner set forth in Government Code Section 65867 and City
regulations implementing said Section. Following consideration of the evidence presented in
said review before City Council, either Party alleging Default by the other Party may give
written notice of termination of this Amended Agreement to the other Party. Termination of this
Amended Agreement shall be subject to the provisions of Section 9.09 hereof.
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B. City and Developer agree that in the event of Default by City, the Parties
intend that the primary remedy for Developer shall be specific performance of this Amended
Agreement. A claim by Developer for actual monetary damages against City may only be
considered if specific performance is not granted by the Court. In no event shall Developer be
entitled to any consequential punitive or special damages. If City issues an Approval pursuant to
this Amended 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.
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 Amended Agreement except as limited by Section 9.04B. above. Any
such legal action shall be brought in the Superior Court for Sonoma County, California.
Section 9.05 Periodic Review.
A. The annual review date for this Amended 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
Amended 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 Amended 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 Amended 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:
(1) The City Manager shall review Developer’s submission to
ascertain whether Developer has complied in good faith with the terms of this Amended
Agreement. If the City Manager finds good faith compliance by Developer with the terms of this
Amended 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 Amended 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
Amended Agreement, the City Manager shall refer the matter to the City Council for a
determination as to compliance with this Amended 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.
(2) 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 Amended
41
Agreement. The findings of the City Council on whether Developer has complied with this
Amended 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 Amended 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 Amended Agreement, the City Council may
continue the hearing and shall notify Developer of the City’s intent to meet and confer with
Developer within 30 days of such determination, prior to taking further action. Following the
30-day time period, the City Council shall resume the hearing in order to further consider the
matter and to make a determination, regarding Developer’s good faith compliance with the terms
and conditions of the Amended Agreement and to take those actions it deems appropriate,
including but not limited to, termination of this Amended 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 Amended 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 Amended 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.
Section 9.06 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 Amended 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;
governmental restrictions or priority; litigation; 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 three (3) years), if notice by the party claiming such extension is
sent to the other party within thirty (30) days of the commencement of the cause. The Parties
agree that the commencement of any litigation concerning this Amended Agreement, the
Ordinance approving this Amended Agreement or any of the Existing Project Approvals shall
constitute cause for an extension of time for performance of obligations under this Amended
Agreement up to a maximum of three (3) years, and that the Initial Term of this Amended
Agreement shall be automatically extended for the period such litigation is pending (subject,
however, to the 3 year maximum extension), and that such litigation extension shall not be
included in the calculation of the three (3) year cumulative total referenced in the immediately
42
preceding sentence. 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 9.06. 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.
Section 9.07 Resolution of Disputes. With regard to any dispute involving the Project, the
resolution of which is not provided for by this Amended 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 9.07 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.
Section 9.08 Surviving Provisions. In the event this Amended Agreement is terminated,
neither party shall have any further rights or obligations hereunder, except for those obligations
of Developer set forth in Section 5.02 (Prevailing Wage), 7.07 (Cooperation in the Event of
Legal Challenge), and Section 9.09 (Indemnify and Hold Harmless).
Section 9.09 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) for any
bodily injury, death, or property damage resulting directly or indirectly from the approval or
implementation of this Amended Agreement the development and construction of the Project by
or on behalf of Developer, or from any operations performed under this Amended 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.
ARTICLE 10 MISCELLANEOUS PROVISIONS
Section 10.01 Incorporation of Recitals and Introductory Paragraph. The Recitals contained in
this Amended Agreement, and the introductory paragraph preceding the Recitals, are hereby
incorporated into this Amended Agreement as if fully set forth herein.
Section 10.02 Findings. City hereby finds and determines that execution of this Amended
Agreement furthers public health, safety and general welfare and that the provisions of this
Amended Agreement are consistent with the General Plan.
Section 10.03 Severability. If any term or provision of this Amended Agreement, or the
application of any term or provision of this Amended Agreement to a particular situation, is held
by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms
and provisions of this Amended Agreement, or the application of this Amended Agreement to
other situations, shall continue in full force and effect unless amended or modified by mutual
consent of the parties. Notwithstanding the foregoing, if any material provision of this Amended
43
Agreement, or the application of such provision to a particular situation, is held to be invalid,
void or unenforceable, the party adversely affected may (in its sole and absolute discretion)
terminate this Amended Agreement by providing written notice of such termination to the other
party.
Section 10.04 Construction. Each reference in this Amended Agreement to this Amended
Agreement or any of the Existing Project Approvals or Subsequent Ministerial or Discretionary
Approvals shall be deemed to refer to the Amended 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 Amended
Agreement are for convenience only and are not intended to be used in interpreting or construing
the terms, covenants or conditions of this Amended Agreement. This Amended Agreement has
been reviewed and revised by legal counsel for both City and Developer, and no presumption or
rule that ambiguities shall be construed against the drafting party shall apply to the interpretation
or enforcement of this Amended Agreement. Unless the context clearly requires otherwise,
(i) the plural and singular numbers shall each be deemed to include the other; (ii) the masculine,
feminine, and neuter genders shall each be deemed to include the others; (iii) "shall," "will," or
"agrees" are mandatory, and "may" is permissive; (iv) "or" is not exclusive; (v) "include,"
"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.
Section 10.05 Covenants Running with the Land. All of the provisions contained in this
Amended Agreement shall be binding upon the parties and their respective heirs, successors and
assigns, representatives, lessees, and all other persons acquiring all or a portion of the Property or
Project, or any interest therein, whether by operation of law or in any manner whatsoever. All of
the provisions contained in this Amended Agreement shall be enforceable as equitable servitudes
and shall constitute covenants running with the land pursuant to California law including
California Civil Code Section 1468. Each covenant herein to act or refrain from acting is for the
benefit of or a burden upon the Project, as appropriate, runs with the Property and is binding
upon the Developer of all or a portion of the Property and each successive Developer during its
development of such Property or portion thereof.
Section 10.06 Notices. Any notice or communication required hereunder between City or
Developer must be in writing, and may be given either personally, by registered or certified mail
(return receipt requested), or by Federal Express or other similar courier promising overnight
delivery. If personally delivered, a notice shall be deemed to have been given when delivered to
the party to whom it is addressed. If given by registered or certified mail, such notice or
communication shall be deemed to have been given and received on the first to occur of
(i) actual receipt by any of the addressees designated below as the party to whom notices are to
be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly
addressed, with postage prepaid, is deposited in the United States mail. If given by Federal
Express or similar courier, a notice or communication shall be deemed to have been given and
received on the date delivered as shown on a receipt issued by the courier. Any party hereto may
at any time, by giving ten (10) days written notice to the other party hereto, designate any other
address in substitution of the address to which such notice or communication shall be given.
Such notices or communications shall be given to the parties at their addresses set forth below:
44
If to City: City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928-2486
Attention: City Manager
Tel: (707) 588-2223
With copies to: City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928-2486
Attention: Development Services Director
Tel: (707) 588-2236
And City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928-2486
Attention: City Attorney
Tel: (707) 588-2214
If to Developer: SOMO Village LLC
PO Box 7087
Cotati, CA 94931
Attention: Brad Baker
Tel: (707) 795-3550
Section 10.07 Entire Agreement, Counterparts and Exhibits. This Amended Agreement may be
executed in multiple counterparts, each of which shall be deemed to be an original. This
Amended Agreement, together with the attached Exhibits, constitutes the final and exclusive
understanding and agreement of the parties and supersedes all negotiations or previous
agreements of the parties with respect to all or any part of the subject matter hereof. The
Exhibits attached to this Amended Agreement are incorporated herein for all purposes:
Section 10.08 Recordation of Development Agreement. Pursuant to California Government
Code Section 65868.5, no later than ten (10) days after City enters into this Amended
Agreement, City Clerk shall record an executed copy of this Amended Agreement in the Official
Records of the County of Sonoma.
Section 10.09 No Joint Venture or Partnership. It is specifically understood and agreed to by
and between the parties hereto that: (i) the subject development is a private development;
(ii) City has no interest or responsibilities for, or duty to, third parties concerning any
improvements until such time, and only until such time, that City accepts the same pursuant to
the provisions of this Amended Agreement or in connection with the various Existing Project
Approvals or Subsequent Project Approvals; (iii) Developer shall have full power over and
exclusive control of the Project herein described, subject only to the limitations and obligations
of Developer under this Amended Agreement, the Existing Project Approvals, Subsequent
45
Project Approvals, and Applicable Law; and (iv) City and Developer hereby renounce the
existence of any form of agency relationship, joint venture or partnership between City and
Developer and agree that nothing contained herein or in any document executed in connection
herewith shall be construed as creating any such relationship between City and Developer.
Section 10.10 Waivers. All waivers of the provisions of this Amended Agreement shall be in
writing and signed by the appropriate authorities of City and the Developer.
Section 10.11 California Law. This Amended Agreement shall be construed and enforced in
accordance with the laws of the State of California, without reference to choice of law
provisions.
[SIGNATURES ON FOLLOWING PAGE]
46
IN WITNESS WHEREOF, this Amended Agreement has been entered into by and
between Developer and City as of the day and year first above written.
CITY:
City of Rohnert Park, a municipal corporation
By:
City Manager
Date Signed:
Approved as to Form:
By:
City Attorney
Attest:
By:
City Clerk
DEVELOPER:
SOMO Village, LLC, a Delaware limited
liability company
By:
Title:
Exhibit A
EXHIBIT A
Site Map of Property
[To Be Inserted]
Exhibit B
EXHIBIT B
Legal Description of Property
[To Be Inserted]
Exhibit C
EXHIBIT C
Depiction of Existing Commercial Site
Exhibit D
EXHIBIT D
Infrastructure Map and Table
Exhibit D
Exhibit E-1
EXHIBIT E-1
Bodway Parcel Site Map
[to be inserted]
Exhibit E-2
EXHIBIT E-2
Bodway Parcel Site Map
[to be inserted]
Exhibit F
EXHIBIT F
Dedication, Improvement and Contribution Schedule
Dedication,
Improvement or
Contribution
Trigger to Begin Trigger to Complete Fee Program
Bodway Impact Fee $590,106 at issuance of
the building permit that
includes the 800th
residential unit
NA NA
$590,105 at issuance of
the building permit that
includes the 947th
residential unit
NA NA
Camino Colegio
Impact Fee
$855,681 at issuance of
the building permit that
includes the 1000th
residential unit
NA NA
$855,680 at issuance of
the building permit that
includes the 1327th
residential unit
NA NA
Fund purchase of
surplus Bodway
Parkway ROW north
of Valley House Drive
Prior to first Final Map NA
Dedicate ROW for
Bodway Parkway
Extension
Prior to first Final Map NA
Construct Bodway
Parkway Extension
(includes signal)
Bond with first Final
Map south of Valley
House Drive
Prior to issuance of the
first C of O south of
Valley House Drive
Public Facilities
Fire Station Site
Dedication
On the first Final Map NA NA
Fire Station
Contribution
$4,050,000 at issuance
of the building permit
that covers the 502nd
residential unit
NA
Camino Colegio
Sound Wall
(Manchester to
Mitchell)
NA Prior to initial site
grading and demolition
work on the Northern
Parcel
NA
Exhibit F
Dedication,
Improvement or
Contribution
Trigger to Begin Trigger to Complete Fee Program
Contribute
proportionate share of
East Cotati/Old Red
I/S restriping
NA Prior to issuance of
300th residential
building permit (MM
4.4-1 and 4.4-8)
Regional Traffic
Contribute
proportionate share of
East Cotati/La Salle
Traffic Signal
NA Prior to issuance of
510th residential
building permit (MM
4.4-2)
Regional Traffic
Contribute fair share
to widening for turn
lanes at Old
Red/Railroad I/S
NA Prior to issuance of
510th residential
building permit (MM
4.4-3 and 4.4.-14)
Regional Traffic
Contribute fair share
to traffic signal at Old
Red/Railroad
NA Prior to issuance of
1300th residential
building permit (MM
4.4-4)
Regional Traffic
Contribute fair share
to Petaluma Hill
Road/Main
Street/Adobe Rd I/s
improvements
NA Prior to issuance of
1500th residential
building permit (MM
4.4-5 and 4.4-9)
Regional Traffic
Modify traffic signal
at East Cotati/Camino
Colegio for
protected/permitted
phase
NA Prior to issuance of 1st
residential building
permit (MM 4.4-5 and
4.4-9)
NA
Acquire row and
install right turn lane
at East Cotati/Camino
Colegio
NA Prior to issuance of
1300th residential
building permit (MM
4.4-5 and 4.4-9)
NA
Install traffic signal
and I/S improvements
at Petaluma Hill Road
and Railroad Avenue
NA Prior to issuance of
950th residential
building permit (MM
4.4-6 and 4.4-15)
Regional Traffic
Install 2nd left turn
lane at East Cotati
Snyder Lane
NA Prior to issuance of 1st
residential building
permit (MM 4.4-10)
NA
Modify Bodway
Parkway/East Cotati
I/S
NA Prior to issuance of
250th residential
building permit (MM
4.4-11)
NA
Improve East NA Prior to issuance of Regional Traffic
Exhibit F
Dedication,
Improvement or
Contribution
Trigger to Begin Trigger to Complete Fee Program
Cotati/Petaluma Hill
Road I/S
510th residential
building permit (MM
4.4-12)
Improve Petaluma Hill
Road/Valley House
Drive I/S
NA Prior to issuance of
250th residential
building permit (MM
4.4-13)
Regional Traffic
(there is an
allowance in the
PF also)
Contribute fair share
to Railroad
Avenue/Old Red
Traffic signal
NA Prior to issuance of
1300th residential
building permit (MM
4.4-14)
Regional Traffic
Contribute fair share
to East Cotati/Old Red
I/S improvements per
Cotati GP
NA Prior to issuance of
1300th residential
building permit (MM
4.4-8)
Regional Traffic
Exhibit G
EXHIBIT G
Affordable Housing Plan
[To be inserted]
1 Exhibit G
EXHIBIT G
AFFORDABLE HOUSING PLAN
(SONOMA MOUNTAIN VILLAGE)
I. INTRODUCTION
The Project has been designed to substantially increase the housing stock in the City and to help
alleviate the City's need for housing affordable to very low-, low-, median- and moderate-income
households (as such terms are defined at Section 17.07.020(N) of the City of Rohnert Park Municipal
Code). Subject to potential adjustment as provided in Section VIII., below, Developer agrees to reserve
and Construct or cause to be Constructed a total of 254 standard Affordable Units in the Project. Unless
otherwise defined herein, capitalized terms contained in this Affordable Housing Plan shall have the
meaning given to such terms in the Development Agreement.
For purposes of this Affordable Housing Plan, the term "Construct" shall mean to "take all actions
necessary for completed building of the Affordable Units, including without limitation obtaining all
required land use approvals and building permits, unit construction, grading, yard landscaping,
installation of related public improvements, and compliance with applicable conditions of approval
and mitigation measures. In addition, the term "Construct" shall be deemed to encompass the phrase
"cause to be Constructed" which shall mean directing or causing a third party to Construct the
Affordable Units.
II. SUMMARY OF INCLUSIONARY HOUSING OBLIGATIONS
Section 17.07.020(N) of the City of Rohnert Park Municipal Code imposes an inclusionary requirement
or an in-lieu fee on developers of residential development projects ("Inclusionary Housing
Provisions"). The Inclusionary Housing Provisions require Developer to reserve at least fifteen percent
(15%) of all dwelling units as affordable units ("Affordable Units"). (RPMC § l7.07.020(N)(3).) The
Project shall provide for development of a total of 1,694 dwelling units. Thus, as applied to the Project,
the Inclusionary Housing Provisions require that a total of 254 Affordable Units be Constructed for
the Project.
Affordable Units Constructed as part of rental housing shall be affordable to very low- and low-
income households; Affordable Units Constructed as part of owner-occupied housing shall be
affordable to low-, median- and moderate-income households.
Additionally, the Inclusionary Housing Provisions permit a developer to satisfy its obligations through
an "alternative equivalent action," which includes the donation of vacant land to an affordable housing
developer. (RPMC § 17.07.020(N).)
Based on these requirements, Developer shall satisfy its obligations under the Inclusionary Housing
Provisions as follows:
2 Exhibit G
A. Dedication of Land for Affordable Housing Construction: Developer shall
designate and reserve one or more parcels of vacant land for Construction of a total of at least
254 Affordable Units. Developer shall either Construct the 254 Affordable Units on the
dedicated parcel(s) or donate such parcel(s) to one or more affordable housing developers for
Construction of the 254 Affordable Units (or any portion thereof which Developer does not
develop).
B. Timing for Affordable Housing Construction: To ensure that Developer
promptly Constructs the 254 Affordable Units provided for herein, Developer shall Construct
the Affordable Units progressively as other elements of the Project are constructed, according
to the timing provided at Section IV, below.
C. Restricting Rental Price on Rental Housing Sites: Developer shall, concurrent
with recordation of a final· map that includes parcels designated for rental Affordable Units,
record covenants against any parcel on which such Affordable Units are proposed to be
Constructed. Pursuant to Section III(D) of this Affordable Housing Plan, the covenants shall be
contained in a negotiated Affordable Housing Agreement which ensures, to the satisfaction of
City, that the Affordable Units proposed to be developed thereon shall be restricted as rental
housing for very low- and low-income households, with a mix of affordability as approved by
the City. Pursuant to Section IV of this Affordable Housing Plan, failure to record such
covenants is a condition of Developer receiving approval to construct designated market-rate
residential units.
D. Restricting Sale Price on Owner-Occupied Housing Sites: Developer shall,
concurrent with recordation of a final map that includes parcels designated for owner-occupied
Affordable Units, record covenants against any parcel on which such Affordable Units are
proposed to be Constructed. Pursuant to Section III(D) of this Affordable Housing Plan, the
covenants shall be contained in a negotiated Affordable Housing Agreement which ensures, to
the satisfaction of City, that the Affordable Units proposed to be developed thereon shall be
restricted as owner-occupied housing for low- and moderate-income households, with a mix of
affordability as approved by the City. Pursuant to Section IV of this Affordable Housing
Agreement, failure to record such covenants is a condition of Developer receiving approval to
construct designated market-rate residential units.
E. Applicability of Inclusionary Housing Provisions: All requirements of the
Inclusionary Housing Provisions concerning issuance of certificates of occupancy, restrictions
on rental and sale price of Affordable Units, household income restrictions, and enforcement
apply to the Construction of Affordable Units by Developer.
The foregoing obligations shall be governed by, and subject to, the further requirements
provided below.
3 Exhibit G
III. AFFORDABLE HOUSING SITE(S)
A. Obligation to Reserve Land for Affordable Units.
Developer shall reserve one or more parcels (''Affordable Housing Site(s)") for Construction of
no less than two hundred and fifty-four (254) Affordable Units. The Affordable Housing Site(s)
shall be located entirely on the Property, shall be identified by Developer in any tentative and final
tract maps for the Project, shall be formed as legal parcels, and shall be Constructed in conformance
with the timing requirements provided in Section IV, below. Each tentative tract map developed as
part of the Project shall identify the total number of Affordable Units to be developed on each
Affordable Housing Site(s) proposed for that tract, and no tentative tract map shall be deemed
complete or accepted for processing by City unless the City determines, in its reasonable discretion,
that: (i) the number of Affordable Units proposed in the tentative tract map is sufficient to satisfy
the timing requirements provided in Section IV, below; and (ii) the Affordable Housing Site(s)
is/are of adequate size, configuration, and location to accommodate the number of Affordable Units
proposed in the tentative tract map.
B. Obligation to Construct.
Developer shall Construct the Affordable Units on the Affordable Housing Site(s) in accordance
with plans and specifications approved by the City, such approval not to be unreasonably withheld.
Concurrent with recordation of the final map for each tract in which Affordable Housing Site(s)
have been designated, Developer shall record an Affordable Housing Agreement (as more fully
defined in Section III(D)) containing covenants against any parcel on which such Affordable Units
are proposed to be Constructed. The covenants shall ensure, to the satisfaction of City, that the
Affordable Units proposed to be developed thereon shall be restricted as rental housing or owner-
occupied housing for, as applicable, very low-, low- and moderate- income households. Developer
may Construct the Affordable Units itself or may transfer the fee interest in each such Affordable
Housing Site(s) to an affordable housing developer selected by Developer and approved by the City
Manager or his or her designee in his or her reasonable discretion. The City Manager or his or her
designee shall not withhold approval provided the proposed affordable housing developer (i) has at
least five (5) years’ experience in the Construction, ownership; operation and management of
similar size affordable rental housing projects, (ii) does not have any record of material violations
of discrimination restrictions or other state or federal laws or regulations or local governmental
requirements applicable to such projects, and (iii) has the financial capability to Construct and
operate the Affordable Housing Site(s). Developer shall remain obligated to Construct each such
Affordable Housing Site(s) and shall, therefore, retain the right and option to repurchase each such
Affordable Housing Site(s) from the designated affordable housing developer. If any designated
affordable housing developer has not commenced Construction of the subject Affordable Housing
Site(s), as demonstrated by the pouring of foundations, within three (3) years of issuance of the first
building permit for market rate units within the Project Phase in which the Affordable Housing
Site(s) is located, Developer, at its expense, must repurchase the Affordable Housing Site(s) from
the designated affordable housing developer and commence and complete the Construction of the
Affordable Housing Site(s) as soon as possible, but in any event within six (6) years after issuance
of the first building permit for the applicable Project Phase. Developer acknowledges and
agrees that City retains the right to withhold issuance of building permits in conformance with the
timing requirements of Section VI, below, until such time as Construction of the necessary
Affordable Housing Site(s) has been satisfactorily completed as evidenced by a final certificate of
4 Exhibit G
occupancy.
C. Affordability.
Subject to adjustment as provided in Section VIII., below, the Affordable Housing Site(s) shall,
upon Project completion, provide a total of 254 Affordable Units, of which at least 72 Affordable
Units must be ownership housing and the remaining Affordable Units may be rental housing.
Additionally, the Affordable Housing Units shall be subject to the following requirements:
1. If operated as rental housing, at least 50 percent of the Affordable Units in the
Affordable Housing Site(s) shall be rented to very low-income households at an
affordable rent; and no more than 50 percent of the Affordable Units shall be rented
to low-income households at an affordable rent shall be consistent with Section
17.07.020(N) of the City of Rohnert Park Municipal Code, or any successor code section
thereto.
2. If sold as owner-occupied housing, 50 percent of the Affordable Units in the
Affordable Housing Site(s) shall be sold to low-income households at an affordable
price; 50 percent of the Affordable Units shall be sold to moderate-income
households at an affordable price.
3. The Inclusionary Housing Provisions shall govern all determinations as to income
level, affordability, and occupancy.
4. The Affordable Housing Site(s) shall be subject to affordability restrictions as
provided in the Inclusionary Housing Provisions and in this Affordable Housing
Plan.
D. Affordable Housing Agreement.
The covenants containing the affordability restrictions for the Affordable Units shall remain in
place for a minimum of fifty-five (55) years (for rental housing) or forty-five (45) years (for
owner-occupied housing). Developer or its designated affordable housing developer shall enter
into an agreement ("Affordable Housing Agreement") with City, in a form and content
acceptable to the City Attorney, which shall be recorded against the Affordable Housing Site(s)
concurrently with recordation of a final map that designates or reserves one or more Affordable
Housing Site(s). Among other things, the Affordable Housing Agreement shall include the
following terms:
If the Affordable Housing Site(s) is/are operated as rental housing:
1. The requirement to Construct the Affordable Housing Site(s) as provided herein;
2. Provisions restricting the rental of Affordable Units within the Affordable Housing
Site(s) to low- and very low-income households at an affordable rent for a period of
fifty-five (55) years;
5 Exhibit G
3. The requirement that the total number of affordable units does not include on-site
property manager units;
4. Non-discrimination covenants;
5. Provisions requiring income certification before the lease of any Affordable Units
and recertification every year thereafter;
6. Provisions requiring the submittal of certificates of continuing program compliance
to the City on at least an annual basis;
7. Restrictions on the ability to transfer the Affordable Housing Site;
8. Maintenance and management requirements, including City remedies following
notice and opportunity to cure;
9. Provisions regarding the marketing of the Affordable Housing Units, including any
approved preference program, as set forth in Section III(F) below; and
10. Requirements to pay the City annual monitoring fees.
If the Affordable Housing Site(s) is/are sold as owner-occupied housing:
1. The requirement to Construct the Affordable Housing Site(s) as provided herein;
2. Provisions restricting the sale of the Affordable Units within the Affordable Housing
Site(s) to low- and moderate-income households at an affordable sale price for a
period of forty-five (45) years;
3. Non-discrimination covenants;
4. Provisions requiring income certification before the sale of any Affordable Units;
5. Restrictions on the ability to transfer the Affordable Units;
6. A phasing plan acceptable to the City Manager that indicates the location and unit
size of each Affordable Unit, and the timing of the Construction of the Affordable
Units in relation to the market rate units within Affordable Housing Site(s);
7. Provisions requiring homebuyers to execute and record, as appropriate, resale and
refinance restrictions, disclosure statements and a performance deed of trust; and
8. A form of Resale and Refinance Restriction Agreement that includes, among other
things, provisions requiring that the Affordable Unit be sold to a low- or moderate-
income household at an affordable sales price for a period of forty-five
(45) years, refinance limitations, provisions prohibiting the rental of the Affordable
Unit, and an option to purchase at an affordable sales price in favor of City the event
of a default by the owner.
6 Exhibit G
E. Quality/Standards.
If operated as rental housing, the Affordable Housing Site(s) shall be of high architectural quality,
well landscaped, effectively and aesthetically designed and Constructed in a workmanlike manner
with professionally rendered finishes comparable to first-class market rate rental housing projects
located in the City of Rohnert Park. Each Affordable Housing Site shall include a mix of unit sizes. At
least thirty-five percent (35%) of the Affordable Units in an Affordable Housing Site shall be 2-
bedroom/2-bath units, and at least fifteen percent (15%) shall be 3-bedroom/2-bath units or larger; no
more than fifteen percent (15%) of the Affordable Units in any Affordable Housing Site may be
studio/1-bath units.
If sold as owner-occupied housing, the Affordable Housing Site(s) shall be indistinguishable from the
market rate units in exterior and interior design and Construction, quality, materials, finishes, fixtures
and architectural elements (other than interior flooring materials, countertops, cabinetry and appliances
which shall be high quality, but need not be identical to the market rate housing units), as well as
number and proportion of bedroom types. The Affordable Units shall be dispersed throughout their
respective phase. At least thirty-four percent (34%) shall be 3-bedroom/2-bath units; no more than
sixty-six percent (66%) of the Affordable Units within any Affordable Housing Site shall be 2-
bedroom/2-bath units.
F. Marketing/Implementation.
Developer or its designated affordable housing developer shall prepare and implement a marketing and
implementation plan for the rental or sale of the Affordable Units in the Affordable Housing Site(s).
Each plan must be in a form and content reasonably acceptable to the City and include, among other
things, the following:
If the Affordable Housing Site(s) is/are operated as rental housing:
1. A plan to market the Affordable Units to eligible households;
2. Procedures for the rental of the Affordable Units, including the slotting of
applications and creation of a waiting list, eligibility determination, income
certification and annual re-certifications and any preference plan allowable or
required under Federal or California law.
If the Affordable Housing Site(s) is/are sold as owner-occupied housing:
1. A plan to market the Affordable Units to eligible households;
2. Procedures for the sale of the· Affordable Units, including maintaining an interest list,
creating an application process for qualifying buyers, developing and delivering a
homebuyer class to educate homeowners on their rights and obligations, a process for
working with and approving loans and lenders, a procedure for determining eligibility
and a process for executing all documents.
7 Exhibit G
IV. TIMING FOR CONSTRUCTION
To ensure that Construction of the 254 Affordable Units keeps pace with overall construction of the
Project, City shall withhold building permits for residential units as follows:
1. Prior to the 274th Building Permit for a Residential Unit: Developer and/or the
affordable housing developer(s) shall have recorded the Affordable Housing Agreement,
containing the applicable affordability covenants against the Affordable Site(s) and Constructed
and completed all steps necessary for the issuance of certificates of occupancy for the first twenty
(20) Affordable Units.
2. Prior to the 483rd Building Permit for a Residential Unit: Developer and/or the
affordable housing developer(s) shall have recorded the Affordable Housing Agreement,
containing the applicable affordability covenants against the Affordable Site(s) and Constructed
and completed all steps necessary for the issuance of certificates of occupancy for an additional
eighty-four (84) Affordable Units, such that a total of one hundred four (104) Affordable Units shall
have been Constructed.
3. Prior to the 847th Building Permit for a Residential Unit: Developer and/or the
affordable housing developer(s) shall have recorded the Affordable Housing Agreement,
containing the applicable affordability covenants against the Affordable Site(s) and Constructed
and completed all steps necessary for the issuance of certificates of occupancy for an additional one
hundred (100) Affordable Units, such that a total of two hundred four (204) Affordable Units shall
have been Constructed.
4. Prior to the 1,042nd Building Permit for a Residential Unit: Developer and/or the
affordable housing developer(s) shall have recorded the Affordable Housing Agreement,
containing the applicable affordability covenants against the Affordable Site(s) and Constructed
and completed all steps necessary for the issuance of certificates of occupancy for an additional
sixteen (16) Affordable Units, such that a total of two hundred twenty (220) Affordable Units shall
have been Constructed.
5. Prior to the 1,297th Building Permit for a Residential Unit: Developer and/or the
affordable housing developer(s) shall have recorded the Affordable Housing Agreement,
containing the applicable affordability covenants against the Affordable Site(s) and Constructed
and completed all steps necessary for the issuance of certificates of occupancy for an additional
sixteen (16) Affordable Units, such that a total of two hundred thirty-six (236) Affordable Units shall
have been Constructed.
6. Prior to the 1,600th Building Permit for a Residential Unit: Developer and/or the
affordable housing developer(s) shall have recorded the Affordable Housing Agreement,
containing the applicable affordability covenants against the Affordable Site(s) and Constructed
and completed all steps necessary for the issuance of certificates of occupancy for an additional
eighteen (18) Affordable Units, such that all required (two hundred fifty-four (254)) Affordable Units
shall have been Constructed.
V. COMPLIANCE MONITORING
Commencing one year after the Effective Date and every year through the Term, Developer shall
8 Exhibit G
submit an annual implementation plan to the City summarizing the status of compliance with the
Affordable Housing Plan, including status of Construction and sale or rental of the Affordable
Units. The Developer of Affordable Housing shall report annually to the City the income limit
verification by unit in accordance with current US Department of Housing and Urban
Development (HUD) household income limits- Sonoma County. Owner-occupied housing shall
include a mechanism to insure resale restrictions for ongoing affordability. The Developer and its
successors or assigns shall comply with reporting and compliance obligations as required by
Federal and State of California law and as later amended, whether or not specifically set forth
herein.
VI. DEVELOPER’S OBLIGATION
The obligations set forth in this Affordable Housing Plan are the obligations of Developer, who
shall be responsible for fulfilling them at Developer's sole cost and expense. Neither City nor the
Rohnert Park Community Development Agency shall have any obligation to assist in the
Construction of any of the Affordable Units. Developer shall provide any and all subsidies
necessary to Construct the Affordable Units and to comply with all provisions of this Affordable
Housing Plan.
VII. PRIORITY
The Affordable Housing Agreements described above shall be superior to any mortgage, deed of
trust, lien or other encumbrance (other than the lien for current taxes or assessments not yet due)
recorded against the Property, and shall be enforceable against any party who has acquired its title
by foreclosure, trustee's sale, voluntary conveyance or otherwise. If so requested by City,
Developer or its successor shall execute and agree to the recording of a subordination agreement
evidencing the provisions of this Section VII.
VIII. ADJUSTMENT
Developer's obligation to Construct and provide 254 Affordable Units assumes development of
1,694 total residential dwelling units within the Project. In the event that the anticipated total
number of market rate dwelling units is reduced through subdivision mapping or other approval
processes, the number of Affordable Units required to be developed within the Project shall be
reduced proportionately, with any fractional units rounded up to the nearest whole number. (For
example, if the number of market rate units is decreased to 1,200, Developer shall be required to
produce 213 Affordable Units).