HomeMy WebLinkAboutOrdinance 2348 N.C.S. 10/05/20091
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EFFECTIVE DATE
®F ORDINANCE
November 5, 2009
Introduced by
Mike Harris
ORDINANCE NO. 2348 N.C.S.
Seconded by
Mike Healy
AUTHORIZING THE EXPENDITURE OF X39,000, PLUS COSTS AND FEES, TO PURCHASE
EASEMENTS FROM MACPHAIL PROPERTIES, INC. IN CONNECTION WITH THE CAULFIELD
LANE EXTENSION AT-GRADE RAILROAD CROSSING PROJECT AND AUTHORIZING THE CITY
MANAGER TO EXECUTE ALL REQUIRED DOCUMENTS
WHEREAS, MacPhail Properties, Inc. is the owner of a parcel of real property located at
the end of Caulfield Lane Extension; in the City of Petaluma, County of Sonoma, California;
Sonoma County Assessor's Parcel No. 005-060-087 (Parcel); and,
WHEREAS, the City of Petaluma (Grantee) is acquiring from Grantor easements for the
construction, operation and maintenance of railroad signal equipment housing, sidewalk and
public utility; and,
WHEREAS, for such purposes, Grantee intends to construct the railroad equipment
housing, sidewalk and public utility onto the easements; and,
WHEREAS, the City Council of the City of Petaluma authorized staff to negotiate the
easement acquisition with the Grantor, resulting in the proposed Easement Agreement, a copy
of which is attached as Exhibit A and made a part hereof; and,
WHEREAS, an easement deed .sufficient to grant the easements described in Exhibits
One, Two and Three of the Easement Agreement to the City will be prepared and recorded
pursuant to the Easement Agreement; and,
Ordinance No. 2348 N.C.S. Page 1
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WHEREAS, environmental impacts of the at-grade crossing for which the proposed
easements are being acquired were studied for purposes of the California Environmental Quality
Act ("CEQA") as part of the program Final Environmental Impact Report for the Central
Petaluma Specific Plan ("CPSP") certified by the City of Petaluma prior to adoption of the CPSP
(SCH #2002-1 12-039) ("FEIR"); and,
WHEREAS, on February 16, 2006, the PUC issued its Opinion Conditionally Granting
Application 04-06-030 ("2006 Opinion"),which conditionally approved relocation of the crossing.
and expressly determined after thorough review that the City's prior environmental review was
adequate to support the PUC conditional approval; and,
WHEREAS, at such time as passenger rail service commences along the rail line, the City is
required by the 2006 Opinion to apply to the PUC for continued authorization of the at-grade
crossing, and will include as part of that application any supplemental environmental evaluation
required because of future institution of passenger rail service.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PETALUMA AS
FOLLOWS:
Section 1. The Recitals are true and correct and adopted as findings of the City Council.
Based on said findings, environmental review of the at-grade crossing relocation has been
conducted pursuant to CEQA and supports the acquisition of the easements authorized by this
ordinance.
Section 2. The City Manager is authorized to execute the Easement Agreement
attached as Exhibit A hereto and all documents necessary to acquire and accept the
easements which are the subject of the Easement Agreement.
Section 3. If any section, subsection, sentence, clause, phrase or word of this Ordinance
is for any reason held to be unconstitutional, unlawful or otherwise invalid by a court of
competent jurisdiction or preempted by state legislation, such decision or legislation shall not
affect the validity of the remaining portions of this Ordinance. The City Council of the City of
Petaluma hereby declares that it would have passed and adopted this Ordinance and each
and all provisions thereof irrespective of the tact that any one or more of said provisions be
declared unconstitutional, unlawful or otherwise invalid.
Ordinance No. 2348 N.C.S. Page 2
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Section 4. This Ordinance or a synopsis of it shall be posted and/or published for the
period and in the manner required by City charter.
Section 5. This Ordinance shall become effective thirty (30) days after the date of its
adoption by the Petaluma City Council.
INTRODUCED and ordered posted/published this 21st day of September, 2009.
ADOPTED this 5'~ day of October, 2009 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN
ATTEST:
Vice Mayor Barrett, Glass, Harris, Healy, Babbitt, Renee, Mayor Torliatt
None
None
None
APPROVED AS TO
Claire Cooper, City Clerk Eric Danly, City ttorney
Ordinance No. 2348 N.C.S.
Page 3
EXHIBIT A TO ORDINANCE 2348 N.C.S.
AGREEMENT FOR THE PURCHASE AND SALE OF
PERMANENT AND TEMPORARY CONSTRUCTION EASEMENTS
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is entered into effective as of September
21, 2009 (the "Effective Date") by and between MacPhail Properties Inc., a California
Corporation, ("GRANTOR") and the City of Petaluma, a municipal corporation, ("CITY").
GRANTOR and CITY are sometimes hereinafter referred to as the "PARTIES." It is agreed
between the PARTIES as follows:
1. PROPERTY TO BE CONVEYED: GRANTOR agrees to sell and CITY agrees to purchase from
GRANTOR on the terms set forth in this agreement perpetual easements ("Perpetual
Easements"), together with temporary construction easements ("Temporary Construction
Easements" or "TCE's") over, upon and across certain real property owned by GRANTOR
and identified as Assessor's Parcel Number 005-060-087 (Grantor's Property). The
Perpetual Easements and the TCE's to be granted by Grantor in accordance with this
Agreement are described as follows:
A. A Perpetual Easement for public use for sidewalk purposes and a TCE for the
installation and construction of public sidewalks as more particularly described and
depicted in Exhibit One attached hereto and incorporated herein by reference.
B. A Perpetual Easement for the purpose of construction, installation, removal,
repair, replacement, reconstruction, maintenance, operation and use of public utilities,
including without limitation, electricity, gas, water, sewer, telephone and cable television
and storm drains over, along, upon, under, and across the easement area, and a TCE for
the installation and construction of said public utilities as further described in Exhibit Two
attached hereto and incorporated herein by reference.
A Grant of Easements for the Perpetual Easements and the TCEs, duly executed and
acknowledged, shall be provided by Grantor, consistent with this Agreement. The
Perpetual Easements and the TCEs granted to City thereby are collectively referred to
hereafter as "the Grant of Easements." The areas subject to the Easements are referred
to herein as the "Easement Areas."
2. ACCEPTANCE OF GRANT OF EASEMENTS: Upon receipt of the above Grant of Easements,
duly executed and acknowledged, CITY shall execute an acceptance of said Grant of
Easements. Upon and after said acceptance, City shall maintain the Easements and all
improvements erected thereon by City pursuant to applicable law.
3. COMPENSATION: CITY shall:
A. Pay the sum of $32,500.00 for the Easements as full compensation conditioned upon
the Easements vesting in the CITY free and clear of all liens, leases, encumbrances,
easements (recorded and/or unrecordedJ, assessments and taxes other than the
Permitted Exceptions and the Commercial Lease, dated October 16, 2006, between
GRANTOR and Goodwill Industries of the Redwood Empire, Inc., as amended (the
"Goodwill Lease"). The purchase price for the Easements includes payment for any
and all improvements removed and not replaced thereon, provided that following
any work within the Easement Areas, the City shall restore the above-ground surface
Ordinance No. 2348 N.C.S. Page 4
1 area and improvements and underground drainage improvements to the same or
2 better condition than existed prior to the work (excluding such improvements to be
3 removed and not replaced as part of such work and including the public utility,
4 sidewalk and signal house improvements contemplated under this Agreement.)
5
6 B. City wishes to acquire for the Sonoma-Marin Area Rail Transit District, a public agency
7 created under California law, ("SMART") a permanent easement for a signal house
8 structure to be used to house equipment for the operation of railroad signal
9 operations ("Signal House Easement") together with a permanent easement for
10 public utility purposes for the connection of equipment to be placed on the Signal
11 House Easement by SMART to other signal equipment already existing on SMART
12 property, together with access across said easements and a TCE to permit
13 construction of said improvements, all as more particularly described in Exhibit Three
14 attached hereto and incorporated herein by reference (collectively, the "SMART
15 Easements"). As part of this Agreement, Grantor agrees to grant to SMART the SMART
16 Easements, and CITY agrees to pay to Grantor the additional sum of $6,500.00 as
17 consideration for the grant of the SMART easements.
18
19 C. Pay all escrow, recording and title insurance charges, if any, incurred in this
20 transaction.
21 D. Have the authority to deduct and pay from the amount shown above any amount
22 necessary to satisfy any liens, bond demands and delinquent taxes due in any year
23 except the year in which this transaction closes, together with penalties and interest
24 thereon, and/or delinquent and unpaid non delinquent assessments. Close of this
25 transaction and payment of compensation may, at the sole discretion of CITY, be
26 contingent upon issuance of an CLTA policy of title insurance subject only to
27 Exceptions numbered 1 through 18 and 21 through 28 as shown on that certain
28 Preliminary Report, North American Title Company Order No. 62243398, Update No. 4,
29 dated June 1 1, 2009 at 7:30 a.m. ("Permitted Exceptions"). Exception No. 20 as
30 shown on the June 1 1, 2009 Preliminary Report Update No. 4 shall also be considered
31 a Permitted Exception on the condition and provided that, prior to close of escrow,
32 Grantor has furnished for recordation a Release, Relinquishment and Extinguishment
33 of Easement expressly effecting the release, relinquishment and extinguishment of all
34 easement rights previously granted or otherwise conveyed by Grantor by means of
35 that certain Easement Agreement recorded on October 12, 1999 as Instrument No.
36 1999-126745 in the Official Records of Sonoma County; and/or that certain First
37 Amendment to and Assignment of Easement Agreement recorded on August 29,
38 2001 as Instrument No. 2001 1 1 8298 in the Official Records of Sonoma County.
39 Exception number 19 as set forth in said Preliminary Report shall be removed, as a
40 condition of close of this transaction and payment of compensation by CITY. In
41 addition, it shall be a condition of close of this transaction and payment of
42 compensation by CITY that GRANTOR obtain from Goodwill Industries a written
43 subordination or other agreement in form acceptable to the City subordinating the
44 Goodwill Lease to the Easements.
45 4. PUBLIC PURPOSE: CITY requires the Easements, property not now appropriated for public
46 use, for the construction of public sidewalk and public utilities ("the Public Improvements")
47 in connection with the relocation, construction and maintenance of a public railroad
48 crossing in the area commonly known as the Caulfield Lane Extension.
Ordinance No. 2348 N.C.S. Page 5
1
5. REPRESENTATIONS AND WARRANTIES:
A. GRANTOR represents and warrants that GRANTOR is not aware of any underground
storage tanks on, in or under the Easement Areas and is not aware of any hazardous,
toxic or petroleum product substances or materials in, on or under the Easement
Areas, except as disclosed in that certain Amendment to Covenant to Restrict Use of
Property -Environmental Restriction, DTSC site code number 200667, Instrument No.
200707071 1 recorded in the Official Records of Sonoma County, California
("Restrictive Covenant") or as may be present in, on or under the Easement Areas as
a result of releases or discharges from the service station located at 1001 Lakeville
Highway. CITY has informed GRANTOR as to the plans for the construction of the
proposed public improvement in the manner proposed.
GRANTOR represents and warrants that GRANTOR is the sole fee owner of the
Property and GRANTOR warrants that GRANTOR has the right and power to enter into
this Agreement and to convey the Easements. GRANTOR further represents and
warrants that it is not under contract wifh any other party for the purchase and sale
of the Grantor's Property, and that there are no oral or written leases in effect with
respect to any portion of the Easement Areas other than the Goodwill Lease.
GRANTOR agrees to indemnify, defend with counsel approved by CITY, hold harmless
and reimburse CITY and its officers, representatives, agents and employees from and
against any and all suits, damages, costs, fees, claims, demands, causes of action,
losses, liabilities and expenses, including without limitation attorneys' fees, in the
event that any of GRANTOR'S representations or warranties contained in this
paragraph are not correct at the time made or at the close of escrow, which
obligations, together with the representations and warranties set forth above shall
survive close of escrow and recordation of the Grant of Easements.
6. RIGHT OF POSSESSION AND USE: It is agreed and confirmed by the parties hereto that,
notwithstanding the other provisions in this Agreement, the right of possession and use of
the Easements by CITY, including the right to remove the existing improvements, if any, and
to construct the proposed improvement and the necessary conforms to the proposed
improvement, shall commence on recordation of the Grant of Easements and that the
compensation amount shown above includes, but is not limited to full payment for such
possession and use from said date.
7. ESCROW:
A. This transaction shall be handled through an escrow with North American Title
Company. The Grant of Easements shall be executed and delivered to the escrow
company for the purpose of placing the Grant of Easement into escrow. The Grant
of Easements shall be delivered in the manner described in the previous sentence
solely for the convenience of the parties. GRANTOR. shall not be deemed to have
delivered the Grant of Easements and CITY shall not be deemed to have accepted
delivery of the Grant of Easements until such time as the Grant of Easements is
recorded in the Official Records of Sonoma County, California in accordance with
written escrow instructions delivered to escrow by CITY and GRANTOR and consistent
with this Agreement. Within five (5) days after this Agreement is executed by CITY
and GRANTOR, GRANTOR shall complete execute and deliver to escrow holder (i) an
Ordinance No. 2348 N.C.S. Page b
affidavit executed by GRANTOR certifying that GRANTOR is not a "foreign person"
within the meaning of Internal Revenue Code Section 1445(f) (3), and meeting the
requirements of Internal Revenue Code Section 1445(b)(2), and (ii) an original
Withholding Exemption Certificate (California Form 590 or 590-RE, as applicable), fully
executed by GRANTOR as required by the California Taxation and Revenue Code,
certifying that the GRANTOR is not subject to tax withholding under applicable
California law. Escrow agent shall deliver the purchase price to GRANTOR, less
amounts necessary to place title in the condition required by this Agreement when
title to the Easements vests in CITY, subject only to the Permitted Exceptions. Title shall
be evidenced by a CLTA owner's policy of title insurance ("Title Policy"). The Title
Policy shall be in the amount of the purchase price, showing title to the Perpetual
Easement and the Temporary Construction Easement vested in CITY, subject only to
the Permitted Exceptions, as defined in Paragraph 3.D. above. It shall be a
condition precedent to CITY's obligations under this Agreement that escrow holder is
able to issue the Title Policy to CITY as specified upon the close of escrow.
Notwithstanding the foregoing, CITY shall have the sole right to elect to close this
transaction without the use of escrow services. If CITY elects to close without the use
of escrow services, CITY shall upon acceptance of the Grant of Easements, pay the
purchase price amount directly to GRANTOR, and record the Grant of Easements
and the SMART easements. If CITY elects to close this transaction with the use of
escrow services, CITY and GRANTOR shall sign escrow instructions, if necessary, to
effect this Agreement and close escrow.
8. TRUST DEED(s) AND MORTGAGE PAYMENT: Any or all monies payable under this Agreement
up to and including the total amount of unpaid principal and interest on note(s) secured
by mortgage(s) or deed(s) of trust, if any, and all other amounts due and payable in
accordance with the terms and conditions of said trust deed(s) or mortgage(s), shall upon
demand(s) be made payable to the mortgagee(s) or beneficiary(ies) entitled thereunder;
said mortgagee(s) or beneficiary(ies) to furnish GRANTOR with good and sufficient receipt
showing said monies credited against the indebtedness secured by said mortgage(s) or
deed(s) of trust. This provision applies as to GRANTOR only and does not, nor shall be
construed to, create in CITY any duty or obligation in connection with the subject matter
hereof.
9. SUCCESSORS: This Agreement shall be binding on and shall inure to the benefit of the
parties hereto and their respective successors, heirs, assigns and transferees.
10. NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement is intended to or shall confer
upon any person, other than the Parties and their respective successors and assigns, any
rights or remedies hereunder.
11. PARTIES NOT CO-VENTURERS. Nothing in this Agreement is intended to or shall establish the
Parties as partners, co-venturers, or principal and agent with one another.
12. NON-LIABILITY OF OFFICIALS, EMPLOYEES AND AGENTS. No official, employee or agent of
CITY shall be personally liable to Grantor or its successors in interest in the event of any
default or breach by CITY or for any amount which may become due to Grantor or its
successors in interest pursuant to this Agreement.
Ordinance No. 2348 N.C.S. Page 7
13. NOTIFICATION TO SUCCESSORS: In the event GRANTOR sells, conveys, or assigns any
property interests encumbered by this Agreement, GRANTOR shdll notify the successor or
assignee of the rights and obligations of both parties as included herein.
14. SURVIVAL OF AGREEMENT: This Agreement, including all representations, warranties,
covenants, agreements, releases and other obligations contained herein shall survive the
closing of this transaction and the recordation of the Grant of Easements or deeds.
15. ENTIRE AGREEMENT: The PARTIES have herein set forth the whole of their agreement. The
performance of this Agreement constitutes the entire consideration for said Grant of
Easements or deed(s) and shall relieve CITY of any further obligation to GRANTOR therefor.
16. SEVERABILITY: If any provision of this Agreement is held by a court of competent jurisdiction
to be invalid, void or unenforceable, the remaining provisions shall continue in full force and
effect without being impaired or invalidated in any way.
17. GOVERNING LAW: This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
18. AUTHORITY AND EXECUTION: 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 the full right and authority to enter into this
Agreement and perform all of its' obligation hereunder.
19 CAPTIONS: The captions of the various sections, paragraphs and subparagraphs of this
Agreement are for convenience only and shall not be considered nor referred to in
resolving questions of interpretation.
20. REQUIRED ACTIONS: Each party agrees to execute such instruments and documents and to
undertake such actions as may be reasonably required in order to consummate the
purchase and sale contemplated by this Agreement.
21. COUNTERPARTS: This Agreement may be executed in multiple counterparts each of which
shall be deemed an original but all of which, together shall constitute one and same
document.
22. AMENDMENT: This Agreement shall not be modified or amended except by an instrument in
writing executed by each of the parties hereto.
GRANTOR:
Dated:
MacPhail Properties, Inc.
By:
By
[ATTACH NOTARIAL ACKNOWLEDGMENT]
Ordinance No. 2348 N.C.S.
Page 8
CITY OF PETALUMA:
Dated:
John Brown
City Manager
[ATTACH NOTARIAL ACKNOWLEDGMENT]
ATTEST:
City Clerk
APPROVED AS TO FORM:
Eric W. Danly
City Attorney
APPROVED:
Department Director
APPROVED:
Risk Manager
APPROVED:
Administrative Services Director
1288717.2
Ordinance No. 2348 N.C.S.
Page 9