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2022/12/13 City Council Resolution 2022-122 RESOLUTION NO. 2022-122 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK AUTHORIZING AND APPROVING A MASTER MAINTENANCE AGREEMENT WITH SOMO VILLAGE LLC WHEREAS, on August 10, 2010, the City Council of the City of Rohnert adopted Resolution No 2010-101 approving the Final Environmental Impact Report for the Sonoma Mountain Village Planned Development including a draft EIR, response to comments and appendices (together the "2010 EIR"); and WHEREAS,on March 9, 2021, the City Council of the City of Rohnert Park adopted Resolution No. 2021-027 approving the SOMO Village Phase Zero Parcel Map; and WHEREAS, on March 9, 2021, the City Council of the City of Rohnert Park adopted Resolution No. 2021-028 approving a Supplemental Environmental Impact Report for the SOMO Village Planned Development (2021 Supplement); and WHEREAS, on March 23, 2021, the City Council of the City of Rohnert Park adopted Ordinance No. 953, approving an Amended and Restated Development Agreement ("Development Agreement") between the City of Rohnert Park and SOMO Village LLC ("Developer"); and WHEREAS, on August 24, 2021, the City Council of the City of Rohnert Park adopted Resolution 2021-098 approving the Tentative Map ("Tentative Map") for the SOMO Village Development Phase 1 N-A,prepared by Civil Design Consultants and dated June 23, 2021, subject to certain conditions of approval ("Conditions of Approval"); and WHEREAS, the Developer intends to file the Final Map for SOMO Village Phase IN-A, consisting of 116 single-family residential lots, 32 airspace condominiums and four parcels; and WHEREAS, the Development Agreement and the Conditions of Approval require the Developer make provisions for the ongoing maintenance of public and private improvements, including but not limited to landscaping on private and public property and stormwater treatment measures, and to establish a Homeowner's Association to perform ongoing maintenance responsibilities; and WHEREAS,the Master Maintenance Agreement included as Exhibit A provides for the ongoing maintenance of improvements and the assignment of this responsibility to Association when appropriate, which satisfies the Conditions of Approval. NOW, THEREFORE,BE IT RESOLVED that the City Council of the City of Rohnert Park finds that maintenances activities are consistent with the Sonoma Mountain Village 2010 EIR and the 2021 Supplement, and that no other CEQA analysis is warranted. BE IT FURTHER RESOLVED that the Master Maintenance Agreement included as Exhibit A is hereby approved. BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed to execute the Master Maintenance Agreement, in substantially similar form to the agreement attached hereto and incorporated by this reference as Exhibit A, subject to minor modifications approved by the City Manager and City Attorney. DULY AND REGULARLY ADOPTED this 13th day of December, 2022. CITY OF ROHNERT PARK Jack lward, or ATTEST: Sylvia Lopez Cu , ity Clerk Attachment: Exhibit A GUIDICE:,.) , IUIV1iOLLINGSWORTH ADAMS:Ay. STAFFORD I RODRIGUEZ: ELWARD: E.,AYES: (L f- ) NOES: ( 9s) ABSENT: ( ]) ABSTAIN: ( ) Resolution 2022-122 2 1 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Rohnert Park 130 Avram Avenue Rohnert Park, California 94928 Attention: City Clerk ) ) ) ) ) ) ) ) Exhibit A to Resolution ) (Space Above This Line for Recorder’s Use Only) Exempt from recording fee per Gov. Code § 27383. MASTER MAINTENANCE AGREEMENT (SOMO VILLAGE PLANNED DEVELOPMENT) APN 046-051-049 (portion) THIS MASTER MAINTENANCE AGREEMENT (“Agreement”) is made and entered into this ___ day of _____________, 2022, (“Effective Date”), by and between SOMO VILLAGE, LCC, a Delaware limited liability company (“Developer”), and the CITY OF ROHNERT PARK, a California municipal corporation (“City”) with reference to the following facts. City and Developer may each be referred to as a “Party” or collectively as the “Parties.” RECITALS A. Developer is the owner of that certain real property located in the City of Rohnert Park, County of Sonoma, State of California, located in the SOMO Village Planned Development and known as a portion of Assessor’s Parcel Number (APN) 046-051-049, which is in Exhibit “A”, attached hereto and incorporated by this reference as if fully set forth herein (the “Property”). The Property is being developed as a mixed-use community featuring single family and multifamily homes. B. In connection with its development of the Property, the Developer obtained Final Development Plan and Conditional Use Permit on March 9, 2021 by Resolution 2021-030, Development Agreement on March 23, 2021 by City Ordinance No. 953 and a Tentative Map on August 24, 2021 by Resolution 2021-098 (the “Project Approvals”). The Project Approvals require the Developer to install and maintain certain public and private improvements both on the Property and along the Property frontage, which improvements are described and depicted on Exhibit “B” attached hereto and by this reference made a part hereof (the “Improvements”). The Improvements include frontage landscaping within the public right-of-way, new streets, curb, gutter and sidewalk, streetlights, sewer, water, recycled water, and storm drain lines, parks and mailbox structures. C. The City’s National Pollutant Discharge Elimination System (“NPDES”) Municipal Separate Storm Sewer System (“MS4”) Permit, Order Number No. R1-2015-0030, issued and extended by the North Coast Regional Water Quality Board, requires the City to implement and enforce specific requirements for the construction and maintenance of onsite storm water management facilities/best management practices (collectively, “BMPs”) for development, redevelopment, and other applicable projects with the goal of mitigating impacts to storm water quality and runoff volume discharges into the MS4. Provisions of Title 15 and other applicable sections of the Rohnert Park Municipal Code shall apply to the construction, inspection and maintenance of BMP facilities, as defined in Recital D below, and the enforcement of MS4 Permit requirements. 2 D. On July 8, 2022, the City approved Developer’s Improvement Plans and a Final Standard Urban Stormwater Mitigation Plan (“SUSMP”) (collectively, “Plan”) for the Property which include provisions for the construction and maintenance of BMP facilities as part of the Improvements on the Property (the “BMP Facilities”) by Developer. The BMP Facilities are described in Exhibit “C” attached hereto and by this reference made a part hereof and include bioretention beds and storm filters. E. The City and Developer will enter into a Recycled Water Use Agreement in substantial conformance with Exhibit “D”, Recycled Water Use Agreement, for the purpose of providing recycled water for irrigation of landscaping to be installed by Developer as part of the Improvements on the Property. F. The Developer recognizes that the City’s approval of the Project Approvals is based on the Developer’s commitment to the long-term maintenance, repair, care and, if and when necessary, replacement of the Improvements and the BMP Facilities, and that the Project Approvals would not have been approved without the assurance that this Agreement would be executed by the Developer. G. Parties acknowledge that the Development Agreement also obligates Developer or its Assignee to pay the annual sewer pump station fee described in Section 4.14 of the Development Agreement. H. Parties acknowledge that Developer intends to assign some or all of the long-term maintenance, repair and care to a Homeowners Associate established under Davis-Stirling Common Interest Development Act (the “Association”), I. The City and the Developer desire to enter into an agreement pursuant to which the Developer will maintain the Improvements within the area depicted on Exhibit “B” (“Maintenance Area”), as well as the BMP Facilities shown on Exhibit “C”. AGREEMENT NOW, THEREFORE, the City and the Developer (together, the “Parties”) hereby agree as follows: 1. PURPOSE OF AGREEMENT. The purpose of this Agreement is to assure the maintenance, periodic inspection, repair, safe operation and, if and when necessary, replacement of the Improvements by the Developer at its expense in accordance with the standards, including the Maintenance Standards (defined in Section 4 below), set forth herein and the construction, inspection and maintenance of the BMP Facilities. 2. IMPROVEMENTS AS A BENEFIT. The Developer agrees that the Improvements will materially benefit the Property and that Developer’s maintenance, repair, safe operation and, if and when necessary, replacement thereof in accordance with this Agreement is necessary for approval of the Developer’s Project Approvals. 3. DEVELOPER’S RESPONSIBILITIES. Developer, at its sole expense, shall construct, install, maintain, safely operate, periodically inspect, repair, resurface and, if and when necessary, replace the Improvements identified in Exhibit “B”, as well as perform all necessary service on maintenance equipment, in order to ensure the attractive and healthy appearance of the landscaping, the attractive appearance, condition and safety of any and all structures, and the efficient operation of all of the Improvements, including paying the electrical expense of operating any pedestrian light and irrigation controller, said electrical expense to be paid by the Developer upon the direct receipt of invoices for 3 electrical service from Pacific Gas and Electric, all in accordance with the Maintenance Standards described in Section 4 below, and industry and City standards applicable to similar improvements. 4. MAINTENANCE STANDARDS APLICABLE TO IMPROVEMENTS WITHIN THE MAINTENANCE AREA. Developer and its maintenance staff, contractors and subcontractors shall comply with the following standards in performing the obligations imposed by this Agreement on all Improvements within the Maintenance Area. a. The Improvements shall be maintained in compliance with the Plan and Project Approvals, in good condition, and in accordance with the custom and practice generally applicable to public rights-of-way within the City of Rohnert Park. b. Pedestrian/bicycle trail maintenance includes, but is not limited to maintaining all surfaces in good condition and repairing and replacing the surfaces as necessary to maintain a safe walking and riding path. c. Landscape maintenance includes, but not be limited to: irrigating; fertilizing; periodic trimming, mowing, and/or edging of grass and lawn areas; pruning of trees, shrubs, and other vegetation; trimming and shaping of trees and shrubs to maintain a healthy, natural appearance, safe road conditions and visibility, and irrigation coverage; removing and replacing plant materials as needed; controlling weeds in all planters, shrubs, lawns, ground covers, or other planted areas; maintaining mailbox, street furniture, play equipment and other structures within landscaped areas; and staking for support of trees. d. Clean-up maintenance includes, but not be limited to maintenance of all sidewalks, paths, mailbox and mailbox structure and other paved areas in clean and weed-free condition; maintenance of all such areas clear of dirt, mud, trash, debris, graffiti or other matter which is unsafe or unsightly; removal of all trash, litter and other debris from improvements and landscaping prior to mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris are properly disposed of by maintenance workers. e. All maintenance work shall be performed in a good and workman like manner and shall conform to all applicable federal and state Occupation Safety and Health Act standards and regulations for the performance of maintenance. f. Any and all chemicals, unhealthful substances, and pesticides used in and during maintenance shall be applied in strict accordance with all governmental requirements. Precautionary measures shall be employed recognizing that all areas are open to public access. g. All use of recycled water shall comply with the requirements of the Recycled Water Use Agreement. 5. BMP FACILITIES. Developer hereby covenants, agrees and declares as follows: a. At its sole cost and expense, Developer shall construct, inspect, and maintain the BMP Facilities in accordance with the Plan and the SUSMP. b. Maintenance associated with roadside bioretention with curb openings per details on Exhibit C, sheets 5 and 6, includes but is not limited to removing trash, weeds, debris and sediment, trimming, and periodically replacing improvements as maybe needed. 4 c. Maintenance associated with the bioretention beds with no curb and gutter per detail on Exhibit C, sheets 7-9, includes but is not limited to: irrigating; fertilizing; periodic trimming, mowing, and/or edging of vegetation; removing and replacing plant materials as needed; and controlling weeds. d. Maintenance associated with all Contech stormfilter units shall conform to the manufacturer’s recommendations and the SUSMP and shall include cleaning and debris removal from the unit on at least an annual basis. e. Developer shall submit to City inspection reports as required by the Plan and SUSMP. 6. CITY’S RIGHT TO PERFORM MAINTENANCE. In the event that the Developer fails to comply with the requirements of Section 4 and Section 5, as reasonably determined by the City, City shall have the right to correct the deficiencies or to contract for the correction of such deficiencies. By executing this Agreement, Developer knowingly and willfully provides consent to the City to enter and perform such maintenance work as City deems necessary to satisfy the requirements of this Agreement. It is expressly understood that the City is under no obligation to maintain or repair the Improvements, and in no event shall this Agreement be construed to impose such an obligation on the City. a. Notice to Developer. Prior to taking any such corrective action, the City shall notify the Developer in writing that the condition of an Improvement(s) that does not conform to the standards and requirements set forth herein, including without limitation the Maintenance Standards, and shall specify the deficiencies and the actions required to be taken by the Developer in accordance with this Agreement to cure the deficiencies. Upon notification of any deficiency, Developer shall have thirty (30) days from the date of the notice within which to correct, remedy or cure the deficiency. If the written notification states that the problem is urgent and relates to the public health and safety, then Developer shall have twenty-four (24) hours to rectify the problem. Further, City retains its police powers to take immediate actions to protect the public health, safety and welfare. b. Lien for Costs of Required Maintenance. If Developer fails to correct, remedy, or cure or has not commenced correcting, remedying or curing such deficiency after notification and after expiration of any applicable cure period, then City may enter and perform the required work. Developer agrees to reimburse the City within 60 days of the date of a notice identifying all charges and costs incurred by the City for such maintenance, repair and replacement work. Until so paid, the City shall have a lien for the amount of such charges or costs, which lien shall be perfected by the recordation of a “Notice of Claim of Lien.” against the Property, The lien shall affect only those portions of the Property owned by the Developer or the Association, provided City shall not record a Notice of Claim of Lien unless and until Developer fails to reimburse the City within 60 days of the notice identifying all charges and costs incurred by the City for such work. This lien shall affect all parcels jointly if portions of the Property have been sold. Any lien in favor of the City created or claimed hereunder is expressly made subject and subordinate to any mortgage or deed of trust made in good faith and for value, recorded as of the date of the recordation of the Notice of Claim of Lien, and no such lien shall in any way defeat, invalidate, or impair the obligation or priority of any such mortgage or deed of trust, unless the mortgagee or beneficiary thereunder expressly subordinates its interest, of record, to such lien. No lien in favor of the City created or claimed hereunder shall in any way defeat, invalidate, or impair the obligation or priority of any lease, sublease or easement unless such instrument is expressly subordinated to such lien. c. Legal Action. The City may bring legal action to collect the sums due as the result of expending public monies to maintain, repair and, if and when necessary, replace any Improvements which are the responsibility of the Developer under this Agreement. Developer agrees that 5 if the City brings legal action to enforce its rights under this Section 6 and the City prevails in such legal action, Developer shall pay the City all costs incurred in performing the required work, including reasonable attorneys’ fees and court costs, together with interest from the date the City provided notice under Section 6.a, at the rate of seven percent (7%) per annum. d. Additional Remedies. Developer acknowledges and agrees that City may also pursue any and all other remedies available in law or equity in the event of a breach of the Developer’s obligations and agreements set forth herein. e. Intention of City. Nothing in this Section 6 shall be construed, either expressly or by implication, as indicating an intention of the City to exercise dominion or control over the Improvements. 7. RECYCLED WATER USE. Notwithstanding any other provisions of this Agreement, Developer shall have no obligation to provide any irrigation in violation of any requirements imposed by the State of California or any local water authority during times of drought, provided, however that Developer shall use best efforts to use drought tolerant landscaping and/or recycled water and shall otherwise maintain landscaped areas as allowed by law. 8. NO IMPAIRMENT OF LIEN. No violation or breach of the agreements, conditions, restrictions, provisions or limitations contained in this Agreement shall defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument; provided, however, that any successor of Developer to the Site or any portion thereof shall be bound by such agreements, conditions, restrictions, limitations and provisions, whether such successor’s title was acquired by foreclosure, deed in lieu of foreclosure, trustee’s sale or otherwise. 9. ENCROACHMENT PERMIT; RIGHT OF ENTRY. Developer and City acknowledge that, to the extent that the Improvements are located within the City rights-of-way, the Developer shall obtain a single on-going revocable encroachment permit from the City in order for Developer to perform its obligations under this Agreement. Such an encroachment permit shall set forth the terms and provisions upon which the Developer has a right to enter onto such rights-of-way in order to its obligations under this Agreement. The terms and conditions of the encroachment permit shall be consistent with the terms and conditions of this Agreement and shall present no obstacle to Developer performed the obligations required by the Agreement. 10. INSURANCE. Developer shall obtain and maintain in effect a commercial general liability insurance policy which covers all activities required to be performed by Developer, its contractor, subcontractors, agents and employees under this Agreement. The policy shall name the City and its elective and appointive boards, commissions, officers, agents and employees as additional insureds. The policy shall also provide that no cancellation, major change in coverage, or expiration may be affected by the insurance company or the insured during the policy term without first giving to the City thirty (30) days written notice prior to the effective date of such cancellation or change in coverage. Developer shall not permit any contractor or subcontractor to commence or continue work under this Agreement until the certificates or any substitute certificates have been approved by the City’s Risk Manager. 11. VIOLATION. In addition to any remedies outlined in the City’s Stormwater Permit and the Recycled Water Use Agreement, and violation of the Plan, SUSMP, or Recycled Water Use Agreement by Developer shall be deemed a public nuisance under Chapter 1.24, Nuisance Abatement, of the Rohnert Park Municipal Code and City shall be entitled to the remedies available to it under Chapter 1.24, in addition to the remedies available to it under Chapters 1.16 and 1.25. The remedies identified 6 herein shall be in addition to and cumulative of all other remedies, criminal or civil, which may be pursued by the City. 12. PERMITS AND APPROVALS. In addition to the encroachment permit described in Section 9, Developer shall obtain any required permits or governmental approvals at its sole cost and expense. 13. TERM. This Agreement shall commence immediately upon the Effective Date and shall continue in perpetuity until and unless terminated, with or without cause, by the City upon thirty (30) days written notice to Developer. 14. INDEMNIFICATION. Developer shall, to the fullest extent permitted by law, indemnify, defend and hold harmless the City and its Council, boards, offices, commissions, officials, agents and employees, from and against any liability, (including, but not limited to, liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, damages, losses, expenses or costs of any kind, including reasonable attorneys’ fees, that may be asserted by any person or entity, including Developer, whether actual, alleged or threatened, interest, defense costs, and expert witness fees), where the same relates to, or arises out of, any work performed under this Agreement by Developer, or Developer’s contractors, subcontractors, agents or employees, excepting only that resulting from the sole, active negligence or intentional misconduct of City, its employees, officials, or agents. Developer’s duty to defend and hold harmless, as set forth herein, shall include the duty to defend as set forth in California Civil Code Section 2778. This indemnification obligation shall survive termination of this Agreement and is not limited in any way by any limitation on the amount or type of damages or compensation payable to or for the Developer or its agents under insurance policies or workers’ compensation acts, disability benefits acts or other employees’ benefits acts. If any judgment or claim against the City, its officials, agents, or employees, shall be entered, Developer shall pay all cost and expenses in connection therewith. Notwithstanding the foregoing and subject to the terms of the Assignment Agreement(s) described in Section 15, the parties agree that Developer’s indemnification obligations under this Section 14 shall terminate upon the happening of both of the following events: (i) Developer’s assignment of its rights and obligations to the Association pursuant to Section 15 (b) and notification to the City thereunder, and (ii) the Association’s provision to City of satisfactory evidence of Insurance Coverage required by Section 10 hereof. 15. ASSIGNMENT. (A) BY CITY. The City shall have the right at its option to assign its rights and obligations under this Agreement to another public agency without consent of the Developer, if: (a) City gives thirty (30) days written notice to Developer of the intended assignment, (b) the assignment does not result in any increased cost to Developer and (c) there is no alteration of any obligation of Developer or City under this Agreement. (B) BY DEVELOPER. City and Developer acknowledge that this Agreement contemplates that the Association will eventually assume all of Developer’s rights and obligations under this Agreement, although this may occur in phases. City and Developer agree that Developer, in its reasonable discretion, may assign its rights and obligations, including its indemnification obligations under Section 14, in and to this Agreement to the Association. Said assignment(s) shall accomplished by Developer and the Association entering into one or more agreements in substantially the form attached as Exhibit E (the “Assignment Agreement”). The Developer may assign its obligations under this Agreement only with the prior written approval of the City. In connection with any such assignment, the Developer and its assignee shall execute and deliver to the City a written assignment and assumption agreement in a form acceptable to the City Attorney 7 16. AGREEMENT ATTACHES TO LAND AND BINDS DEVELOPER’S SUCCESSORS AND ASSIGNS. This Agreement attaches to and runs with the Property in perpetuity, and shall be recorded against the Property. This Agreement binds the assigns and successors-in-interest of the Developer. City and its successors and assigns, in the event of any breach of this Agreement, shall have the right to exercise all of the rights and remedies, and to maintain any actions at law or suits in equity or other proper proceedings against the Developer or its permitted successors and assigns to enforce the curing of such breach. 17. AMENDMENT TO INCORPORATE ADDITIONAL PROPERTY. Other portions of the SOMO Village Planned Development may be added to this Master Maintenance Agreement as provided in this Section 17 by recording an Amendment to Master Maintenance Agreement (an “MMA Amendment”), in substantially similar form to that attached hereto as Exhibit F, which shall be signed by Developer and City. A MMA Amendment must: (i) describe the portion of the SOMO Village Planned Development to be added and incorporated (“Added Property”); (ii) describe any Project Improvements within the Added Property; and (iii) specify that except as expressly stated in the MMA Amendment, all of the covenants, obligations and rights of this Agreement will apply to the Added Property in the same manner as it is were originally covered by this Agreement. The MMA Amendment may impose any modifications or additional covenants, obligations or rights related to the Added Property that Developer and City reasonably consider appropriate to include the Added Property in this Agreement and to reflect differences in the Improvements constructed or to be constructed on the Added Property and the Project Approvals applicable to the Added Property. Upon recording an MMA Amendment, the Added Property described in the MMA Amendment will be subject to this Agreement in the same manner as if it were originally covered by this Agreement. 18. NOTICES. Any notices relating to this Agreement shall be given in writing and shall be deemed sufficiently given and served for all purposes when delivered personally or by generally recognized overnight courier service, or three (3) days after deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, addressed as follows: To the Developer: SOMO Village LLC PO Box 7087 Cotati, CA 94931 Attn: Brad Baker To the City: City of Rohnert Park 130 Avram Avenue Rohnert Park, California 94928 Attn: City Manager With a copy to: City of Rohnert Park 130 Avram Avenue Rohnert Park, California 94928 Attn: City Attorney 19. MISCELLANEOUS. a. Entire Agreement, Amendments. This Agreement contains the entire understanding and agreement of the parties. This Agreement may be altered, amended or modified only by an instrument in writing, executed by the Parties to this Agreement. 8 b. Section Headings. Section headings as used herein are for convenience only and shall not be deemed to be a part of such sections and shall not be construed to change the meaning hereof. c. Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. Venue shall be the County of Sonoma. d. Counterparts. This Agreement may be executed in any number of counterparts which together shall constitute the contract of the parties. e. Exhibits. Any and all exhibits and schedules attached or to be attached hereto are hereby incorporated and made a part of the Agreement by reference. f. Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and effect. g. Authority. Each person executing this Agreement on behalf of a party represents and warrants that such person is duly and validly authorized to do so on behalf of the entity it purports to bind and if such party is a partnership, corporation or trustee, that such partnership, corporation or trustee has full right and authority to enter into this Agreement and perform all of its obligations hereunder. h. No Agency Relationship. Neither the Developer nor any of the Developer’s agents, contractors or subcontractors are or shall be considered to be agents of City in connection with the performance of any of the Developer’s obligations under this Agreement. Nor shall City and Developer, be deemed to have become a partner of each other in the conduct of their respective business or otherwise a joint venture. i. Attorneys’ Fees and Costs. Either party may bring a lawsuit to enforce or require performance of the terms of this Agreement, and the prevailing party in such suit or proceeding shall be entitled to recover from the other party’s reasonable costs and expenses, including attorneys’ fees. [SIGNATURES ON FOLLOWING PAGE] 9 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first stated above. DEVELOPER SOMO VILLAGE, LLC a Delaware Limited Liability Company By: ____________________________ Name: Brad Baker Its: Manager [Signature must be notarized] CITY CITY OF ROHNERT PARK A municipal corporation ________________________________ Darrin Jenkins, City Manager Authorized by Resolution 2022-____, adopted by the Rohnert Park City Council on December 13, 2022 [Signature must be notarized] APPROVED AS TO FORM: ________________________________ Michelle Marchetta Kenyon, City Attorney ATTEST: ________________________________ Sylvia Lopez Cuevas, City Clerk Exhibit “A” Legal Description of the Property Exhibit “B” Improvements and Maintenance Area [list of both public and private improvements and map of areas to be inserted] Exhibit “C” BMP Facilities [to be inserted] Exhibit “D” Recycled Water Use Agreement [to be inserted] Exhibit E - 1 EXHIBIT E FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT This ASSIGNMENT AND ASSUMPTION AGREEMENT (“Agreement”), is made by and between SOMO VILLAGE, LLC, a Delaware limited liability company, (“Assignor”), and ** ASSOCIATION, a California non-profit mutual benefit corporation (“Assignee”). 1. Maintenance Agreement. Assignor and the City of Rohnert Park, a California municipal corporation (“City”) entered into an agreement entitled “MASTER MAINTENANCE AGREEMENT (SOMO Village Planned Development)” dated ______________________ (the “Maintenance Agreement”). 2. Right to Assign. Pursuant to Section 15 of the Maintenance Agreement, Assignor desires to assign certain rights and obligations under the Maintenance Agreement to Assignee. 3. Effective Date. The term “Effective Date” shall mean the latest date which appears opposite a party’s signature. 4. Defined Terms. Capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Maintenance Agreement. 5. Assignment of Rights and Obligations. Assignor assigns, transfers, and conveys to Assignee, as of the Effective Date, all of its rights, obligations and under the Maintenance Agreement only as such rights, obligations and interest pertain to that portion of the Maintenance Area described and shown on Exhibit A attached hereto (the “Assigned Maintenance Area”). Assignee accepts and receives all such rights, obligations and interest in, to and under the Maintenance Agreement as such rights, obligations and interest pertain to the Assigned Maintenance Area. 6. Assumption of Liabilities. Assignee assumes all of the duties and obligations of Assignor hereafter accruing or arising incident to the Assigned Maintenance Area of the Maintenance Agreement. Assignee confirms that as of the Effective Date, it shall be deemed a party to the Maintenance Agreement and Assignee agrees to be bound by all the terms of, and to undertake all the obligations of, Assignor contained therein. 7. Indemnification. Subject to Section 8 (Exception), Assignor and Assignee agree that upon the occurrence of: (a) Assignor’s assignment of its rights and obligations under the Maintenance Agreement to Assignee as specified herein and notice to City thereof; and (b) the provision to City of satisfactory evidence of Insurance Coverage procured by Assignee in compliance with the requirements under the Maintenance Agreement, Assignor’s indemnifications obligations pertaining to the Assigned Maintenance Area are terminated. Assignee further agrees to use its efforts to obtain Insurance Coverage as expeditiously as possible; provided, however, in the event the Assignee does not obtain Insurance Coverage and provide City notice thereof within sixty (60) days of the Effective Date, Assignor shall have the right to terminate this Agreement and reassume its rights and obligations under the Maintenance Agreement. 8. Exception. Notwithstanding Section 6 (Assumption of Liabilities), the parties hereto agree Exhibit E - 2 that City shall be entitled to pursue claims accruing or arising incident to the Maintenance Agreement on or before the Effective Date, and all its rights and remedies related to such claims, for (a) payments of indemnity due under the Maintenance Agreement from Assignor, and/or (b) insurance payments or proceeds, provided, however, that Assignor’s liability for such claims shall not exceed the liability it would have incurred if the assignment had not been made. 9. Miscellaneous. a. Each party to this Agreement shall execute and deliver such instruments, documents and other written information and take such other actions as the other party may reasonably require in order to carry out the intent of this Agreement. b. This Agreement and all the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. c. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one instrument. d. This Agreement is made and entered into in California, and the laws of California shall govern the validity and interpretation hereof and the performance by the parties hereto of their respective duties and obligations. e. This Agreement shall be recorded in the Official Records of the County of Sonoma, State of California. Assignor: Dated: Assignee: Dated: EXHIBIT F FORM OF MMA AMENDMENT RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Rohnert Park 130 Avram Avenue Rohnert Park, CA 94928 Attention: City Clerk ) ) ) ) ) ) ) ) ) ) (Space Above This Line for Recorder’s Use Only) Exempt from recording fee per Gov. Code § 27383. AMENDMENT TO MASTER MAINTENANCE AGREEMENT This AMENDMENT TO MASTER MAINTENANCE AGREEMENT (“Amendment”), is made as of by and between SOMO Village LLC, a Delaware limited liability company, (“Developer”), and CITY OF ROHNERT PARK, a California municipal corporation (the “City”). 1. Maintenance Agreement. Developer and City entered into an agreement entitled “MASTER MAINTENANCE AGREEMENT (SOMO Village Planned Development)” dated ______________________ (the “Maintenance Agreement”). 2. Right to Assign. Pursuant to Section 17 of the Maintenance Agreement, City and Developer desire to add the Added Property, described in Exhibit A, attached hereto and incorporated herein by this reference, to the Maintenance Agreement. 3. Effective Date. The term “Effective Date” shall mean the date set forth above. 4. Defined Terms. Capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Maintenance Agreement. 5. Project Improvements. The term “Project Improvements,” as defined in the Maintenance Agreement, is hereby amended to include those improvements described in Exhibit B, attached hereto and incorporated herein by this reference. 6. Additional Obligations. Except as expressly set forth herein, all of the covenants, obligations and rights set forth in the Maintenance Agreement shall apply to the Added Property and Developer. 7. Miscellaneous. a. Each party to this Agreement shall execute and deliver such instruments, documents and other written information and take such other actions as the other party may reasonably require in order to carry out the intent of this Agreement. b. This Agreement and all the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. c. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one instrument. d. This Agreement is made and entered into in California, and the laws of California shall govern the validity and interpretation hereof and the performance by the parties hereto of their respective duties and obligations. e. This Agreement shall be recorded in the Official Records of the County of Sonoma, State of California. IN WITNESS WHEREOF, the parties have executed this Amendment as of the Effective Date. DEVELOPER: SOMO Village LLC A Delaware Limited Liability Company By: Name: Title: [Signature must be notarized] CITY: City of Rohnert Park A Municipal Corporation By: City Manager Authorized by Resolution 2022-__adopted on December 13, 2022 [Signature must be notarized] ATTEST: City Clerk APPROVED AS TO FORM: City Attorney Exhibit “A” Legal Description of the Property Exhibit “B” Improvements and Maintenance Area [list of both public and private improvements and map of areas to be inserted]