2021/03/09 City Council Resolution 2021-027 RESOLUTION NO. 2021-027
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
APPROVING THE SOMO VILLAGE PHASE ZERO PARCEL MAP,AUTHORIZING
EXECUTION OF A DEFERRED IMPROVEMENT AGREEMENT AND ACCEPTING
SUBJECT TO IMPROVEMENT OR REJECTING OFFERS OF DEDICATION AND
RELATED ACTIONS
WHEREAS, on January 12, 2021, the City Council of the City of Rohnert Park adopted
Resolution 2021-007 approving a Large Lot Tentative Map to allow for the subdivision of
property south of Camino Colegio, west of the Southeast Specific Plan, east of the SMART Rail
and north of East Railroad Avenue, prepared by Cinquini&Passarino, Inc. (the"Tentative
Map"), subject to certain conditions of approval ("Conditions");
WHEREAS, the owner of this property has submitted the SOMO Village Phase Zero
Parcel Map ("Map"), consisting of three (3) lots, including a lot proposed for dedication to the
City for the purpose of constructing a fire station, and three(3)parcels, for filing;
WHEREAS,the Map has been reviewed by the City Engineer and City Surveyor and has
been determined to be technically accurate and in conformance with the California Subdivision
Map Act, and the City's Municipal Code requirements set forth in Title 16;
WHEREAS, pursuant to Municipal Code section 16.10.200, the City has submitted (1) a
certificate from the County Tax Collector stating that all taxes and assessments due have been
paid pursuant to Government Code section 66492, and (2) verification that no security for taxes
and assessment need to be executed and filed with the Clerk of the County Board of Supervisors
pursuant to Government Code section 66493; and
WHEREAS,the Developer has submitted all required certificates and submittals and
paid all required fees;
WHEREAS,the Map includes the following offers of dedication:
1) Lot 2- City Fire Station
2) Public Right-Of-Way(portions of Mitchell Drive, Manchester Avenue and Valley
House Drive);
WHEREAS,the Conditions of Approval for the Tentative Map provide for the use of a
Deferred Improvement Agreement for this particular parcel map in order to allow the
construction of improvements to be phased with development.
NOW,THEREFORE,BE IT RESOLVED by the City Council of the City of Rohnert
Park that it does hereby authorize and approve an Deferred Improvement Agreement, by and
between SOMO Village Commercial, LLC, a Delaware Limited Liability Company, and the City
of Rohnert Park, a municipal corporation.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed
to take all actions to effectuate this agreement for and on behalf of the City of Rohnert Park,
including execution, if necessary, in substantially similar form to the agreement attached hereto
as Exhibit"A," subject to minor modifications by the City Manager or City Attorney.
BE IT FURTHER RESOLVED by the City Council of the City of Rohnert Park that:
1. The Parcel Map is determined to be consistent with the City's Municipal Code and
the Subdivision Map Act.
2. The Parcel Map is in substantial conformance with the Tentative Map and all
Conditions required to be completed prior to filing the final maps have been met.
3. The SOMO Village Phase Zero Parcel Map, which is attached hereto and
incorporated by this reference as Exhibit B, is hereby approved and the City Council
(a) rejects Lot 2 for the purpose of constructing a public fire station, subject to future
acceptance pursuant to an Offer of Dedication , in a form approved by the City
Manager and City Attorney,to be recorded concurrently with the Parcel Map; and (b)
accepts; subject to improvement,the Offers of Dedication for Public Right-of-Way,
as shown on the Map.
DULY AND REGULARLY ADOPTED this 9th day of March, 2021.
CITY OF ROHNERT PARK
G r 'udice, ayor
ATTEST:
Sylvia Lopez Cum City Clerk
Attachments: Exhibit A and B
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Resolution 2021-027
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Rohnert Park
130 Avram Avenue
Rohnert Park, California 94928-2486
Attention: City Clerk
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APN (Space Above This Line for Recorder's Use Only)
Exempt from recording fee per Gov. Code § 27383.
DEFERRED IMPROVEMENT AGREEMENT
CITY OF ROHNERT PARK
THIS DEFERRED IMPROVEMENT AGREEMENT ("Deferred Improvement
Agreement") is entered into as of ____________________________ ("Effective Date") by and
between SOMO COMMERCIAL, LLC, a Delaware limited liability company ("Owner") and the
CITY OF ROHNERT PARK in its capacity as a municipal corporation of the State of California
("City"), pursuant to Rohnert Park Municipal Code, Title 16 Subdivisions, Chapter 16.16 Design
and Improvements, section 16.16.040 Deferred Improvement Agreements.
RECITALS
A. Owner is the owner of the real property located within the limits of the City
being more particularly described as Sonoma County Assessor’s Parcel No. 046-051-045
("Property") and illustrated in Exhibit A.
B. On January 12, 2021 with Resolution 2021-007, the City has approved a
Tentative Parcel Map and Conditions of Approval for the Property. The Tentative Parcel Map and
Resolution are collectively referred to herein as the "Tentative Parcel Map with Approvals." The
Tentative Parcel Map with Approvals requires design and construction of certain improvements
as further set forth thereon and therein ("Improvements").
C. The Tentative Parcel Map with Approvals contemplates that the Owner is
generally responsible for the construction of the Improvements.
D. Per the Conditions of Approval for the Tentative Parcel Map, the Improvement
Plans are to be secured by an Improvement Agreement prior to approval of the Final Map.
E. Rohnert Park Municipal Code Section 16.16.040 provides that a Deferred
Improvement Agreement may be used to provide the security required by the Conditions of
Approval for the Tentative Parcel Map.
F. In the interest of advancing the project contemplated by the Tentative Map, the
City is willing to issue Large Lot Parcel Map for the Property, contingent on concurrent execution
of this Deferred Improvement Agreement. Any City approval granted in connection with
development of the Property will be conditioned on and require compliance with this Deferred
Improvement Agreement, the Tentative Parcel Map with Approvals, and applicable sections of
the Rohnert Park Municipal Code. The Deferred Improvement Agreement will run with the land.
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NOW THEREFORE, in consideration of the faithful performance of the terms and
conditions set forth herein, it is agreed as follows:
1. Timing of Improvements. The design and construction of the Improvements are
hereby deferred. Owner shall begin construction of Improvements within ninety days of the
receipt of the notice to proceed from the City (a “Notice”), or as mutually agreed upon in writing,
between Owner and the City, including without limitation in that certain Amended and Restated
Development Agreement dated ____________, between Owner and City. City, in its discretion,
may issue a notice to proceed for Improvements related to a particular parcel, without issuing a
notice to proceed for Improvements related to other parcels.
2. Default by Owner and Remedy by City. In the event Owner fails to commence
construction of Improvements within ninety days of a Notice, the City is authorized to cause
construction to be done and charge the entire cost and expense to Owner, including interest from
the date of written notice of the cost and expense until paid. The interest rate shall be consistent
with the requirements of Article 15, Section 1 of the California State Constitution.
3. Recordation; Notice to Successors and Assigns.
(a) This Deferred Improvement Agreement shall be recorded with the
Sonoma County recorder at the expense of Owner, concurrently with the Large Lot Parcel Map
and shall constitute notice to all successors and assigns of title to the Property of the obligations
set forth therein. This Deferred Improvement Agreement binds the successors in interest and
assigns of each of the parties thereto until the Improvements have been completed and certified
complete by the City of Rohnert Park; provided, however, that obligations hereunder may be
transferred as set forth in Section 13(c), below.
(b) The obligations under this Deferred Improvement Agreement shall run
with the Property and constitute a lien against the Property in such amount, including interest, as
provided in Rohnert Park Municipal Code section 16.16.070, and subject to foreclosure in the
event of a default in payment. The intent of this Deferred Improvement Agreement is to create an
obligation for the Owner and its successors and assigns (including the project proponent) to
design and construct the Improvements, for the benefit of the City and the public. Establishment
and maintenance of the security for the obligations under this Deferred Improvement Agreement
is dependent upon separation of the lien interest and fee title interest in the Property. No merger is
intended nor shall occur by any current or future ownership of the underlying fee title interest in
the Property or any portion thereof, by the City or its successors or assigns. City reserves the
right, upon written notice to the applicable Owner(s), to require that the form of security for the
Improvements (or portions thereof applicable to particular parcels or transferred portions of the
Property per Section 13(c), below) be changed from the foregoing lien to any of the methods
identified in Rohnert Park Municipal Code section 16.16.070.C, as required at the option of and
subject to the approval of the City Attorney.
4. Litigation. To the extent Owner is no longer in the City of Rohnert Park in any
capacity, then in the event of litigation occasioned by default of Owner, Owner agrees to pay all
costs involved, including reasonable attorney fees. Those costs shall become a part of the lien
against the Property.
5. Design and Construction of Improvements. The construction of deferred
Improvements shall conform to Rohnert Park Municipal Code, Title 16 and all applicable
provisions of Rohnert Park Municipal Code in effect at the time of construction.
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6. Remainder. For a designated remainder parcel, the fulfillment of construction
requirements for Improvements is not required until the City is ready to issue a permit or other
grant of approval for development of the remainder parcel or until the construction of the
Improvements is required under an agreement between Owner and the City. In the absence of an
agreement, the City may require fulfillment of the construction requirements within a reasonable
time following approval of the final map and before the issuance of a permit or other grant of
approval for the development of a remainder parcel upon a finding by the City that fulfillment of
the construction requirements is necessary for reasons of (a) the public health and safety; or
(b) The required construction is a necessary prerequisite to the orderly development of the
surrounding area.
7. Non-Performance and Costs. If Owner fails to complete the Improvements
within the time specified in this Deferred Improvement Agreement or any approved extension, or
to act promptly or in accordance with this Deferred Improvement Agreement, or should an
urgency arise that requires the repair or replacement of any Improvements, the City, at its option,
may proceed to complete the Improvements by contract or otherwise and Owner, immediately
upon demand, shall pay the costs and charges related to said work, together with a 15% overhead
charge.
8. Remedies. The City may bring legal action to (a) compel performance of this
Deferred Improvement Agreement; or (b) recover costs of completing the Improvements,
including the City's administrative costs. If legal action is brought by the City against an Owner,
such Owner shall pay all of the costs of suit and reasonable attorneys' fees, and all other expenses
of litigation as determined by the Court.
9. Inspection by City. An inspector employed by the City shall inspect all work to
be done at the reasonable cost and expense of Owner. Owner shall pay the City, on demand, the
cost of the inspection in accordance with relevant City ordinances and provisions of the Rohnert
Park Municipal Code.
10. Property Acquisition. If Owner is unable to acquire property required (if any)
for the construction of the Improvements, Owner agrees to execute the standard City Contract for
Real Property Acquisition to provide for consideration of acquisition through eminent domain.
11. Indemnification. Owner agrees to indemnify, defend and hold the City, its
elective and appointed boards, commissions, officers, agents, employees and consultants,
harmless from and against any and all claims, liabilities, losses, damages or injuries of any kind
(collectively, "Claims") arising out of Owner's, or Owner's contractors', subcontractors', agents' or
employees', acts, omissions, or operations under this Deferred Improvement Agreement,
including, but not limited to, the performance of the work of the Improvements, whether such
acts, omissions, or operations are by Owner or any of Owner's contractors, subcontractors, agents
or employees. The aforementioned indemnity shall apply regardless of whether or not City has
prepared, supplied or approved plans and/or specifications for any Improvements and regardless
of whether any insurance required under this Deferred Improvement Agreement is applicable to
any Claims. The City does not and shall not waive any of its rights under this indemnity
provision because of its acceptance of any security (whether as a lien against the Property, bonds
or insurance) required under the provisions of this Deferred Improvement Agreement.
12. Notices. Formal written notices, demands, correspondence and communications
between City and Owner shall be sufficiently given if: (a) personally delivered; or (b) dispatched
by next day delivery by a reputable carrier such as Federal Express to the offices of City and
Owner indicated below, provided that a receipt for delivery is provided; or (c) dispatched by first
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class mail, postage prepaid, to the offices of City and Owner indicated below. Such written
notices, demands, correspondence and communications may be sent in the same manner to such
persons and addresses as either party may from time-to-time designate by next day delivery or by
mail as provided in this section.
City: City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Manager
with a copy to: City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
Attn: City Attorney
Owner: SOMO Commercial LLC
P.O. Box 7087
Cotati, CA 94931
Attn: Eric Reid, CFO
with a copy to: Welty Weaver & Currie P.C.
Attn: Aaron D. Currie, Esq.
141 North Street, Suite A
Healdsburg, CA 95448
Notices delivered by deposit in the United States mail as provided above shall be deemed to have
been served two (2) business days after the date of deposit if addressed to an address within the
State of California, and three (3) business days if addressed to an address within the United States
but outside the State of California.
13. Miscellaneous Terms and Provisions.
(a) Severability. If any provision of this Deferred Improvement Agreement
is held, to any extent, invalid, the remainder of this Deferred Improvement Agreement shall not
be affected, except as necessarily required by the invalid provision, and shall remain in full force
and effect.
(b) Entire Agreement. This writing contains a full, final and exclusive
statement of the contract of the parties regarding deferral of the Improvements. This Deferred
Improvement Agreement may not be altered, amended or modified without the written consent of
both parties hereto.
(c) Transfers; Assignments; Binding Upon Heirs, Successors and Assigns.
If the Property or any portion thereof is transferred (whether voluntarily, involuntarily, by
operation of law, or otherwise), then the terms, covenants and conditions of this Deferred
Improvement Agreement shall be binding upon Owner's successors and assigns as to the Property
or portions thereof transferred, and Owner's obligations hereunder as to those portions of the
Property transferred, shall terminate upon transfer thereof. If an Owner ceases to have a legal
interest in the Property or any portion thereof, then a notice to that effect shall be filed with the
City, however City's prior written approval of any such transfer is not required.
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(d) Headings. Section headings in this Deferred Improvement Agreement
are for convenience only and are not intended to be used in interpreting or construing the terms,
covenants or conditions contained in this Deferred Improvement Agreement.
(e) Governing Law; Venue. This Deferred Improvement Agreement shall be
construed and enforced in accordance with the laws of the State of California, without reference
to choice of law provisions. Any legal actions under this Deferred Improvement Agreement shall
be brought only in the Superior Court of the County of Sonoma, State of California.
(f) Authority. Each party executing this Deferred Improvement Agreement
on behalf of a party represents and warrants that such person is duly and validly authorized to do
so on behalf of the entity it purports to bind and if such party is a partnership, corporation or
trustee, that such partnership, corporation or trustee has full right and authority to enter into this
Deferred Improvement Agreement and perform all of its obligations hereunder. If there is more
than one signer of this Deferred Improvement Agreement as Owner, their obligations are joint
and several.
IN WITNESS WHEREOF, City and Owner have executed this Deferred Improvement
Agreement as of the Effective Date.
"CITY"
CITY OF ROHNERT PARK, a California
municipal corporation
Dated: By:
Darrin Jenkins, City Manager
Authorized by City Council Resolution No. 2021-______
adopted by the Rohnert Park City Council on March 9,
2021.
APPROVED AS TO FORM:
City Attorney
“OWNER”
SOMO Village, LLC,
a Delaware limited liability company
Dated:
By:
Bradley E. Baker, Manager
SIGNATURES MUST BE NOTARIZED
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EXHIBIT A
Description of the Property
Exhibit B to Resolution 2021-