HomeMy WebLinkAboutResolution 2010-050 N.C.S. 04/05/2010Resolution No. 2010-050 N.C.S.
of the City of Petaluma, California
AUT~-IORIZING TI~E C'ITY MANAGER TO ACCEPT A PERMANEN'I' EASEIVIENT
FOR THE PURPOSE OF EXTENDdNG AUTC~ CENTER DRIVE TO ITS
CONNECTION WITH PETAL~.JIVIA BOULEVARD NORTH AND TO ENTER IN'TO AN
AGREEMENT FOR TI3~ Pi1RCHASE AND SALE O~' 'I'I~E EASEMENT,
CONSENTING TO THE EXPENDI~'URE OF '1'AX INCREIVIEN'd' F~1NDS FOR THE
AU'I'O CENTER DIt. EXTENSION PROJEC'I' C53101002, AND ADOP'TING FINDINGS
REQiJIRED BY I~EALTH ANI) SAFE'I'Y CODE SECTION 33445
W~IE~AS, the City Council and Victor Gonella ("Purchaser"), owner of the Victory
Chevrolet dealership in the City of Petaluma ("City"), wish to extend Auto Center Dr. to its
connection with Petaluma Blvd. North, C53101002 ("Project"); and,
WI~EIZ~AS, Purchaser has agreed to pay for a permanent easement on pro~erty owned
by MYOB Investments ("Owner") in order to facilitate such roadway extension, for Owner's
conve~ance to the City; and,
WHEREAS, the City Council wishes to accept the permanent easement and to fund the
design and construction of this roadway extension; and,
WHEREAS, acceptance of the permanent easement is not subject to Section 46 of the
City Charter; and,
WHEREAS, the property that will be subject to the permanent easement for the Project
is located within the Petaluma Community Development Project Area ("Project Area"); and,
W~IERI:AS, the City, the Purchaser, and the Owner wish to enter into an agreeme~nt
outlining the terms and conditions of the purchase and sale of the permanent easement; and,
WHEREAS, California Health and Safety Code Section ~33445 provides that
redevelopment agencies may, with the consent of the legislative body, pay all or part of the value
of land for and the cost of the installation and construction of any building, facility, structure, or
other improvements that are publicly owned and are located either inside or contiguous to a
Resolution No. 2010-050 N.C.S. Page I
redevelopment project area, subject to the following findings made by the legislative body:
That the acquisition of land or the installation or construction of any improvements
that are publicly owned is of benefit to the project area by helping to eliminate blight
within the project area.
2. That no other reasonable means of tinancing the improvements is available to th~e
commun~ty.
That the payment of funds for the cost of the improvements that are publicly owned is
consistent with the implementation plan adopted by the redevelopment agency.
WHEREAS, the Petaluma Community Development Commission ("PCDC") Five-Year
Implementation Plan ("Implementation Plan") for the Central Business District ("CBD") and
Petaluma Community Development ("PCD") areas (collectively, the "Project Areas"), approved
by the PCDC on June 11, 2007, and revised on November 5, 2009, provides for the transfer of
certain specified tax increment funds for the purpose of funding roadway reconstruction and
related improvements as more particularly described in the Implementation Plan, including the
Project; and,
W~IER~AS; the Project is budgeted in the amount of $1,346,000 in the CIP for the
PCDC; and,
WHEREAS, the public improvements in the Project are of benefit to the Project Area by
helping to eliminate blight within the Project Area in that they will improve public facilities and
infrastructure within the Project Area, improve transportation and traffic circulation along both
Industrial Ave. and Old Redwood Highway corridor, and facilitate private investment and
revitalization of the Project Area by alleviating impediments to circulation and access that deter
revitalization; and,
WHEREAS, City staff is aware of no other source of funds reasonably available to
undertake the City's share of funding for the public improvements, as the only other source
available for such purpose would be City general fund revenues which are committed for the
provision of essential services such as police and fire services.
Resolution No. 2010-050 N.C.S. Page 2
NOW, TI-IEREFORE, BE I'~' RESOI,VED that the City Council of the City of
Petaluma:
1. Authorizes the City Manager to enter into an Agreement for Purchase and Sale of
Easement with Victor Gonella and MYOB Investments, substantially in the form
attached hereto as Exhibit A to this Resolufron and incorporated herein by reference.
2. Authorizes the City Manager to accept conveyance of the permanent easement for the
purposes of the roadway extension of Auto Center Dr. to its connection to Petaluma
Blvd. North and to take such other and further actions as may be necessary to
implement the intent of this Resolution.
3. Based upon the foregoing recitals, which are declared to be true and correct and
hereby incorporated herein as tindings of the Petaluma City Council, finds in
accordance with California Health and Safety Code section 33445 and other
applicable law that (i) the expenditure of tax increment funds to undertake the public
improvements and the Project as set forth in this Resolution and the Implementation
Plan will be of benefit to the Project Area by helping to eliminate blight within the
Project Area, (ii) no other reasonable means of financing the public improvements
and the Project is available to the community, and (iii) completion of the public
improvements and the Project is consistent with the Implementation Plan adopted for
the Project Area.
.}
4. Consents to a contribution of $1,346,000 from PCDC to CIP-C53101002 for the Auto
Center Dr. Extension Project.
Under the power and authority conferred upon this Council by the Charter of said City.
REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the p ve as to
Council of the City of Petaluma at a Regular meeting on the ~'~ day of April, 2010,
by the following vote:
AYES: Barrett, Vice Mayor Glass, I-Iealy, Rabbitt, Renze, Mayor Torliatt
NOES: None
ABSENT: Harris
ABSTAIN: None
ATTEST: ~v~~~" ~^~
City Clerk
Mayor
Ci
Resolution No. 2010-050 N.C.S. Page 3
EX~IIBIT A TO RESOLUTION 2010-050 N.C.S.
AGREEMENT FOR PURCHASE AND SALE OF EASEMENT
This Agreement ("Agreement") is entered into this _ day of , 2010 (the
"Effective Date") by and among MYOB INVESTMENTS, a California limited partnership ("Owner"),
VICTOR GONELLA, an individual ("Gonella"), and the City of Petaluma, a California municipal
corporation (the "City"). Owner, Gonella and City are hereinaffer referred to individually as
"Party" and collectively as "Parties".
RECITALS
A, Owner is the owner of that certain real property located in Sonoma County,
California, identified as Assessor's Parcel No. 007-412-053 and more particularly described in
Exhibit A, "Parcel A Legal Description", and Exhibit B, "Parcel A Site Plan", attached hereto
("Pprcel A"), and that certain portion of reai property identified as Assessor's Parcel No. 007-412-
046 and more particularly described in Exhibit C, "Parcel B Legal Description", and Exhibit D,
"Parcel B Site Plan", attached hereto ("Parcel B").
B. Gonella is the owner of commercial real property adjoining Parcel A(located at
1370 Auto Center Drive (APN 007 412 070), Petaluma, California) (the "Gonella Property"),
C. Pursuant to authority granted under Community Redevelopment Law (California
Health and Safety Code Section 33000 et seq,) (the "CRL"), the Petaluma Community
Development Corporation (the "Agency") has responsibility to implement the redevelopment
plan adopted by the City Council ("City Council") of the City by Ordinance No, 1725, N,C.S„ as
subsequentiy amended (the "Redevelopment Plan") for the Petaluma Community Development
Project Area (the "Project Area"),
D. Parcels A and B and the Gonella Property are located within the Project Area.
E. Pursuant to the CRL, the Agency Board and the City Council have made the
requisite findings for use of Agency tax increment revenue for the extension of Auto Center
Drive, a public street in the City, to its connection to Petaluma Boulevard North, a public street in
the City (the "Project") and have included the Project in the 2009 amendments to the Agency's
Implementation Plan; and have also included the Project in the Agency's 2010 Capital
Improvement Program project budget,
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows.
1. Grant and Duration of Easements, Subject to the terms and conditions set forth
herein, and in consideration of payment of the Purchase Price as defined in Section 5, Owner
agrees to grant to City, for the Project, a permanent, nonexclusive roadway easement on,
across, and under Parcels A and B, with the right of immediate entry and continued possession
for the construction, improvement, maintenance, repair, operation, and replacement for
roadway and public uti~ity purposes, including but not limited to electricity, gas, fiber optics,
sewer facilities, water facilities, storm drain, sidewalks, curb and gutter, planter strip, telephone,
cable television and/or such other reasonably similar purposes as the City may choose to make
over, upon, across, through and beneath that certain real property described in Exhibits A and B
(the "Easement").
2. Proiect Definition, The Project shall consist of construction on Parcels A and B by
the Agency or the City of a public street including roadway pavement, curb and guiter,
driveways, sidewalk, storm drainage modifications, and landscaping, along with utility
extensions (including without limitation street lighting, sanitary sewer, and water service) and the
provision of access for ingress and egress purposes to the Gonella Property, adjacent
automobile dealerships and other adjacent properties, and the general public to Old Redwood
Highway, also known as Petaluma Boulevard North, over Parcels A and B.
Resolution No. 2010-050 N.C.S. Page 4
3. Reservation to Owner. The grant of Easement shall reserve for ihe use and benefit of
Owner and its successors in interest the right to cross Parcels A and B for ingress and egress
purposes and to make driveway improvements thereon, at two locations as approved by the
City, in order to access that certain real property owned by Owner in Sonoma County, California
and identified as Assessor's Parcel Nos. 007-412-046, 007-412-053, and 007-412-043.
4. Escrow; Escrow Instructions. Within five (5) business days of the Effective Date, Gonella
shall establish an escrow account ("Escrow") at the office of Old Republic Title Company, 201
First Street Petaluma, CA 94952 under escrow number 0812006275-RF ("Title Company" or
"Escrow Agent") to consummate the purchase and sale of the Easement pursuant to this
Agreement. Upon the opening of Escrow, the Parties shall deposit with the Escrow Agent an
executed copy of this Agreement, which shall serve as the joint escrow instructions of the Parties
for this transaction, together with such additional instructions as may be executed by the Parties
and delivered to the Escrow Agent. The Parties agree to sign and deliver to Escrow Agent such
additional documents as are necessary or convenient to close Escrow and carry out the intent
of this Agreement.
5. Purchase Price. The purchase price payable to Owner for City's acquisition shall be the
total sum of One Hundred Fifty-Six Thousand Seven Hundred Fifty Dollars ($156,750) (the
"Purchase Price") and shall be payable into Escrow by Gonella on or before the Close of Escrow
~defined below).
6. De osit. Promptly upon establishment of Escrow, Gonella shafl deposit with the Escrow
Agent the sum of Five Thovsand DoNars ($5,000) ("Deposit"), which Deposit will be applied to the
Purchase Price at the Close of Escrow. The balance of the Purchase Price shall be paid in cash
at the Close of Escrow.
7. Title Documents and Exceptions. The Parties have caused or will cause concurrently with
the establishment of Escrow the Title Company to deliver to the Parties a preliminary title report
("Preliminary Report") on Parcels A and B issued by the Title Company, setting forth all liens,
encumbrances, easements, restrictions, conditions, pending litigation, judgments, administrative
proceedings, and other matters of record affecting Owner's title to Parcels A and B together
with complete and legib.le copies of all documents relating to exceptions listed in the Preliminary
Report ("Title Excepfiions"). City shall approve as a"Permitted Exception" or shall disapprove
each Title Exception within thirty calendar (30) days following the Effective Date of this
Agreement. City's failure to object in writing within such period shall be deemed to be an
approval of a Title Exception and aN such Titfe Exceptions shall fhereafter be deemed Permitted
Exceptions. If City objects to any Title Exception Owner shall, within five (5) business days
following City's notice of objections, notify City in writing as to each Title Exception objected to
by City, whether or not Owner agrees to remove such Title Exception on or before Close of
Escrow and shall thereafter use its commercial best efforts at Owner's sole expense to remove
from title or otherwise satisfy each such exception as may be agreed to by Owner, in a form
reasonably satisfactory to City and no later than Close of Escrow. If Owner notifies City that
Owner does not agree to remove a Title Exception, City shall have the right, within five (5)
business days thereafter, to terminate this Agreement upon written notice to Owner and
Gonella. If City does not so terminate this Agreement within such period, all Title Exceptions shall
thereafter be deemed Permitted Exceptions. In the event that Owner fails to remove oc satisfy
any Title Exception that Owner has agreed to remove or satisfy, City shall have the option, in its
sole discretion, to terminate this Agreement or to accept title subject to such exception. In the
event that City elects to terminate this Agreement as provided in this Section 7, such termination
shall not c~nstitute an act of City's or Gonella's default entitling Owner to liquidated damages
pursuant to Section 19, and the Deposit and ail other funds deposited into Escrow by or on
behalf of the Parties shall be returned to the depositing Party, and all rights and obligations
hereunder shall terminate except for those rights and obligations that expressly survive
termination pursuant to the terms of this Agreement.
It shall be a condition to the C1ose of Escrow that upon the Close of Escrow Title Company issue
a CLTA Owner's Title Insurance Policy ("Title Policy") in the amount of the Purchase Price for the
benefit and protection of City, showing title to the Easement vested in City, subject only to the
Permitted Exceptions, including such endorsements as may reasonably be requested by City,
Resolution No. 2010-050 N.C.S. Page 5
conditioned only upon the payment of the premium for the Title Policy and all City-requested
endorsements.
8. Closinq Costs. The fees and charges of Escrow Holder and Title Company: including
without limitation the cost of the Title Policy and all City-requested endorsements, and any
County fees or taxes (collectively, "Closing Costs") shall be paid by and/or pro-rated between
Owner and Gonella according to the custom in Sonoma County as determined by the Escrow
Agent. The Parties acknowledge and agree that City shall have no obligation to pay Closing
Costs.
9. Due Diliqence Period. Unless extended by mutual agreement of the Parties, City shall
have until 5:00 p.m. on April 15, 2010 ("Due Diligence Period"), to undertake and complete at
City expense any inspections, evaluations, research, and tests to evaluate the physical
condition of Parcels A and B, the impact of contamination on Parcels A and B, remediation
agreements involving Conoco Phillips and /or other third parties and the assignability thereof to
City, and the intended use of Parcels A and B, including any governmental approvals related
thereto. Such evaluation may include, at City's option, a Phase One Environmental Site
Assessment, a Phase Two Environmental Site Assessment, other hazardous materials testing,
hydro-geologic testing, and all appropriate inquiry as that term is defined in 40 CFR Part 312.
Owner shall fully cooperate with City in City's conduct of such due difigence, provided that
Owner shall not incur any cost. Owner hereby grants a right of entry to the City to conduct any
inspections, testing, evaluations or examination of Parcels A and B during the Due Diligence
Period.
If at the end of the Due Diligence Period City decides not to accept a grant of Easement, City
shall have the option to terminate this Agreement by providing written notice to Owner and
Gonella within five (5) business days of the last day of the Due Diligence Period, in which event
the Escrow Agent shall be instructed to terminate the Escrow and this Agreement shall terminate
without further action of the Farties. Termination of fihis Agreemenfi pursuant to this Section 9
shall not constitute an act of City's or Gonella's default entitling Owner to liquidated damages
pursuant to Section 19. The Deposit and all other funds deposited into Escrow by or on behalf of
the Parties shall be returned to the depositing Party, and all rights and obligat+ons hereunder
shall terminate except for those rights and obligations that expressly survive termination pursuant
to the terms of this Agreement.
10. Owner's Representations. Owner hereby represents and warrants as follows: (i) Owner
has actual knowledge of contamination of soil and groundwater with respect to or affecting
Parcels A and B, and shall, within ten (10) calendar days of the Effective Date, deliver to City
copies of all documents and information in Owner's possession or reasonably available to
Owner relating thereto, and thereafter shall deliver to City any such documents and information
received by Owner subsequent to the Effective Date and prior to the C~ose of Escrow, including
without limitation documents and information relating to viofations of environmental laws,
investigations or inquiries regarding hazardous materials, monitoring programs or other
remediation of hazardous materials required by any Federal, State or local agency; (ii) to
Owner's actual knowledge there are no threatened or pending actions, suits, or administrative
proceedings against or affecting Parcels A and B or any portion thereof or Owner's interest in
Parcels A and B(the Sonoma County Health Department is requiring Conoco Phillips to
remediate contamination from its leaking underground gas tanks under Parcels A and B and
Owner is involved only as the owner of the contaminated property); (iii) C.~wner is not a"foreign
person" under Section 1445 of the Internal Revenue Code; and (iv) Owner has disclosed, or will
disclose within ten (10) calendar days of the Effective Date, all material facts concerning Parcels
A and B that are actually known to Owner.
Owner further represents and warrants that this Agreement and all other documents delivered or
to be delivered in connection herewith prior to or at Close of Escrow: (a) have been duly
authorized, executed, and deiivered by Owner; (b) are binding ob~igations of Owner; (c) are
collectively sufficient to grant the Easement to City; (d) do not violate the provisions of any
agreement to which Owner is a party or that affects Parcels A and B; provided, however, the
City permits Conoco Phillips to conduct any remediation required by the Sonoma County Health
Department ("County") on Parcels A and B as referenced in Section 26; (e) that the person or
persons executing this Agreement on behalf of Owner are authorized to do so; (f) that Owner
Resolution No, 2010-050 N.C.S. Page 6
has the legal right to enter into this Agreement and to perform all of its terms and conditions;
and (g) that this Agreement is enforceable against Owner in accordance with its terms.
Owner shall indemnify, defend and hold harmless the City, the Agency, and Gonella from all
loss, cost, liability, expense, damage or other injury, including without limitation attorneys' fees
and all other costs and expenses incurred by reason of, or in any manner resulting from the
breach of, any representation or warranty contained in this Section 10. This indemnification shall
survive termination of this Agreement and consummation of the Close of Escrow.
1 l. Owner's Covenants. Owner covenants that from the Effective Date and fhrough the
Close of Escrow, Owner shall not: (i) permit any liens, encumbrances, or easements (other than
the Easement that is the subject of this Agreement) to be placed on Parcels A and B, other than
Permitted Exceptions; or (ii) enter into any agreement regarding the Subject Property that would
be binding on City or Parcels A and B after Ciose of Escrow without the prior written consent of
City.
12. City's Representations, Warranties and Covenants. City represents, warrants and
covenants that this Agreement and all other documents delivered in connection herewith, prior
to or at Close of Escrow: (i) have been duly authorized, executed and delivered by City; (ii) are
binding obligations of City; (iii) do not violate the provisions of any agreement to which City is a
party; (iv) that the person executing this Agreement on behalf of City duly authorized to do so;
(v) that City has the legal right to enter into this Agreement and to perform all of its terms and
conditions; and (vi) that ihis Agreement shall be enforceable against City, in accordance with its
terms and conditions.
13. Gonella's Representations, Warranties and Covenants. Gonella represents, warrants and
covenants that this Agreement and all other documents delivered in connection herewith, prior
to or at Close of Escrow: (i) have been duly authorized, executed and delivered by Gonella; (ii)
are binding obligations of Gonella; (iii) do not violate the provisions of any agreement to which
Gonella is a party; (iv) that Gonella has the legal right to enter into this Agreement and to
perform all of its terms and conditions; and (v) that this Agreement shall be enforceable against
Gonella, in accordance with its terms and conditions.
14. Close of Escrow. The Parties intend for Escrow to close as soon as practicable following
completion of the Due Diligence Period, but in any event within forty-five (45) calendar days
following the Effective Date unless extended by mutual agreement of the Parties or unless this
Agreement is terminated pursuant to its terms. Close of Escrow shall occur when: (i) all
Conditions to Closing, defined below, have occurred; (ii~ a Grant Deed of Easement and a
Certificate of Acceptance by City ("Grant Deed") are recorded in the official records of
Sonoma County, California ("Official Records"); (iii) the Title Policy is issued and delivered to City;
(iv) the Purchase Price less any prorated amounts and charges to be paid by or on behalf of
Owner is delivered to Owner; and (v) the original Grant Deed, together with a conformed copy
thereof indicating recordation in the Official Records, are delivered to City
15. City's Conditions to Closinq. The Close of Escrow and City's obligations hereunder are
conditioned upon: (i) the performance of each of the obligations of Owner and Gonelia to be
performed under this Agreement within the applicable time period, unless waived by City; (ii)
Owner's and Gonelfa's representations and warranties contained in this Agreement being true
and correct as of the Effective Date and the Close of Escrow; (iii) the commitment by Title
Company to issue and deliver the Title Policy, subject only to the Permitted Exceptions and
payment of the regularly scheduled premium for the Title Policy; (iv) completion of the Due
Diligence Period and City's determination, in its sole discretion, to accept the grant of Easement;
and (v) City's acquisition, or determination to City's satisfaction that acquisition can timely be
obtained, of such right-of-way, easements, licenses, or other interests from or agreements with
third parties as City determines is necessary for completion of the Project.
1 b. Owner's Conditions to Closinq. The Close of Escrow and Owner's obligations hereunder
are conditioned upon: (i) the performance of each of the obligations of City and Goneila to be
performed under this Agreement within the applicable time period, or Owner's waiver thereof;
and (iil City's and Gonella's representations and warranties contained in this Agreement being
true and correct as of the Effective Date and the Close of Escrow.
Resolution No. 2010-050 N.C.S. Page 7
1?. Gonella's Conditions to Closinq. The Close of Escrow and Gonella's obligations
hereunder are conditioned upon: (i) the performance of each of the obligations of City and
Owner to be performed under this Agreement within the applicable time period, or Gonella's
waiver thereof; and (ii) City's and Owner's representations and warranties contained in this
Agreement being true and correct as of the Effective Date and the Close of Escrow.
18. Closing Documents and Funds. No later than two (2) business days prior to Close of
Escrow the Parties shall deposit the following documents and funds:
(a) Owner shall deposit: (i) a Grant Deed in recordable form acceptable to City,
conveying to City a permanent, non-exclusive easement in Parcels A and B pursuant to the
terms of this Agreement; (ii) an affidavit of non-foreign status and certification that Owner is a
California limited partnership, each executed under penalty of perjury; (iii) such additional duly
executed instruments and documents as Escrow Agent may reasonably require to consummate
the Close of Escrow; and (iv) unless Owner elects to have them deducted from the Purchase
Price, Closing Costs in an amount reasonably determined by the Escrow Agent.
(b) City shall deposit: (i) a duly executed Certificate of Acceptance of Grant Deed, as
required by California Government Code Section 27281; and (ii) such additional duly executed
instruments and documents as Escrow Agent may reasonably require to consummate the Close
of Escrow.
(c) Gonella shall deposit: (i) the balance of the Purchase Price; (ii) Closing Costs in an
amount reasonably determined by the Escrow Agent; and (iii) such additional duly executed
instruments and documents as Escrow Agent may reasonably require to consummate the Close
of Escrow.
19. LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE AND AGREE THAT: (i) IT WOULD BE
IMPRACTICAL AND EXTREMELY DIFFICULT TO DETERMINE OWNER'S ACTUAL DAMAGES IN THE
EVENT OF GONELLA'S DEFAULT UNDER THIS AGREEMENT, WHICH DEFAULT RESULTS IN CITY'S
FAILURE TO ACQUIRE THE EASEMENT; AND (ii) TAKING INTO ACCOUNT ALL OF THE
CIRCUMSTANCES EXISTING ON THE EFFECTIVE DATE OF THIS AGREEMENT, THE DEPOSIT AS
PROVIDED FOR IN SECTION 6 OF THIS AGREEMENT IS THE BEST ESTIMATE OF THE AMOUNT OF SUCH
DAMAGES. THEREFORE, IN THE EVENT OF GONELLA'S DEFAULT UNDER THIS AGREEMENT, WHICH
DEFAULT RESULTS IN CITY'S FAILURE TO ACQUIRE THE EASEMENT, OWNER'S SOLE AND EXCLUSIVE
REMEDY SHALL BE TO TERMINATE THIS AGREEMENT AND RETAIN THE DEPOSIT AS LIQUIDATED
DAMAGES HEREUNDER. OWNER SPECIFICALLY WAIVES ANY RIGHTS UNDER CALIFORNIA CIVIL
CODE SECTION 3389. THE PARTIES INTEND THAT THE TERMS OF THIS SECTION 19 COMPLY WITH THE
PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1676. OWNER EXPRESSLY ACKNOWLEDGES
AND AGREES THAT CITY'S FAILURE TO ACQUIRE THE EASEMENT AS A RESULT OF CITY'S REFUSAL TO
ACCEPT TITLE EXCEPTIONS PURSUANT TO SECTION 7 OF THIS AGREEMENT OR AS A RESULT OF
CITY'S DUE DILIGENCE PURSUANT TO SECTION 9 OF THIS AGREEMENT SHALL NOT CONSTITUTE AN
EVENT OF DEFAULT ENTITLING OWNER TO LIQUIDATED DAMAGES OR ANY OTHER REMEDY AT LA\N
OR EQUITY.
Owner City Gonella
20. No Brokers. Each Party warrants and represents to the others that no person or entity can
properly claim a right to a real estate commission, brokerage fee, finder's fee, or other
compensation with respect to the transaction contemplated by this Agreement. . Each Party
agrees to defend, indemnify and hold harmless the other Parties from any claims, expenses,
costs or liabilities arising in connection with a breach of this warranty and representation. The
terms of this Section 20 shall survive the termination of this Agreement and the consummation of
the Close of Escrow.
21. Successors and Assiqns. This Agreement shall bind and inure to the benefit of the
respective successors, assigns, heirs, and personal representatives of the Parties.
Resolution No. 2010-050 N.C.S. Page 8
22. Construction of Agreement. The section headings used herein are solely for
convenience and shall not be used to interpret this Agreement. The Parties acknowledge that
this Agreement is the product of negotiation and compromise and shall not be construed as if
prepared by one of the Parties, but rather according to its fair meaning as a whole, as if
prepared by all Parties.
23. Litigation Costs. If ant legal action or other proceeding, including arbitration or action for
declaratory relief, is brought for the enforcement of this Agreement or because of an alleged
default of breach in connection with this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and court costs, in addition to such other relief as to which
such party may be entitled.
24. Time of the Essence. Time is of the essence for each condition, term, obligation and
provision of this Agreement.
25. Notices. Except as otherwise specified in this Agreement, all notices to be sent pursuant
to this Agreement shall be made in writing, and sent to the Parties at their respective addresses
below or to such other address as a Party may designate by written notice delivered to the
other Parties in accordance with this Section 25. All such notices shall be sent by:
(i) personal delivery, in which case notice is effective upon delivery;
f ii) certified or registered maii, return receipt requested, in which case notice shall be deemed
delivered on receipt if delivery is confirmed by a written receipt;
(iii) nationally recognized overnight courier, with charges prepaid or charged to the sender's
account, in which case notice is effective on delivery if delivery is confirmed by the courier; or
(iv) facsimile transmission, in which case notice shall be deemed delivered upon transmittal,
~rovided that (a) a duplicate copy of the notice is promptly delivered by first-class mail, certified
mail or overnight delivery; or (b) a transmission report is generated reflecting the actual
transmission. Any notice given by facsimile shall be considered to have been received on the
next business day if it is received after 5:00 p.m. recipient's time or on a non-business day.
Owner: Frank Barker
P.O. Box 302
Harrison,ID 83833-0302
gp3839@earthlink.net
Anthony Ferolito
297 County Road 3932
Arley, AL 35541
ynot 1 1 @rock.com
Copy to:
David Price Jones
7665 Redwood Blvd., Ste 200
Novato, CA 94945
wende@palmerjones.com
City: City of Petaluma
City Hall
Post Office Box 61
Petaluma, CA 94953
Attention: City Manager
Gonella: Victor Gonella
1370 Auto Center Drive
Petaluma, CA 94952
Resolution No. 2010-050 N.C.S. Page 9
26. Indemnitv. City, its successors and assigns, hereby agrees to indemnify, defend (with
counsel acceptable to Owner and/or Gonella), protect and hold harmless Owner and/or
Gonella for any claim, cause of action, injury to persons or property, directive, expense, penalty
or fine which results from use of the Easement by City, its successors, assigns, employees,
licensees or agents, including use in connection with construction of the Project as of the date of
Close of Escrow and following the Close of Escrow.
Owner, its successors and assigns, hereby agrees to indemnify, defend (with counsel acceptable
to City and/or Agency and/or Gonella), protect and hold harmless City, Agency, and Gonella
from any claim, cause of action, injury to persons or property, directive, expense, penalty or fine
relating in whole or in part to the environmental condition of Parceis A and B existing on, under
or about Parcels A and B as of the date of Close of Escrow and following the Close of Escrow for
any adverse condition on Parcels A and B that was not caused by the City; provided however,
that: (i) the Parties acknowledge that Conoco Phillips is in the process of preparing a
remediation plan for approval by the Sonoma County Department of Health ("County") to
substantially eliminate contamination under Parcels A and B and Owner's surrounding property
resulting from leaking gas tanks on the adjacent property owned by Conoco Phillips; (ii) the City
agrees that should the remediation plan approved by the County cequire any penetration of the
road surface on the Auto Center Drive Extension, the City shall cooperate with the County to
permit such remediation upon the condition that the road surface is restored to its pre-
remediation condition, at no cost to City; and (iii) the Parties agree to cooperate with the
County and Conoco Phillips to avoid, to the maximum extent permitted by law, such
remediation in the area of the Auto Center Drive Extension and the related utility installations.
27. Entire Aqreement. This Agreement, including Exhibifs A, B, C and D attached hereto and
incorporated herein by this reference, constitutes the entire agreement between the Parties
relating to the transaction which is the subject hereof. Any prior agreements, promises,
negotiations, or representations not expressly set forth in this Agreement are of no force and
effect.
28. Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of California without regard to principles of conflicts of laws.
29. Severabilitv. If any term, provision, or condition of this Agreement is held by a court of
competent jurisdiction to be invalid or unenforceabie, the remainder of this Agreement shall
continue in full force and effect unless the rights and obligations of the Parties have been
materially altered or abridged thereby.
30. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original instrument and all of which taken together shall
constitute one and the same Agreement. A facsimile signature shall be deemed an original
signature.
31. Waiver; Modification; Amendment. No waiver or breach of any covenant or provision of
this Agreement shall be deemed a waiver of any ofher covenant or provision hereof, and no
waiver shall be valid unless in writing and executed by the waiving party. An extension of time
for performance of any obligation or act shall not be deemed an extension of the time for
performance of any other obligation or act, and no extension shall be valid unless in writing and
executed by the waiving party. This Agreement may be amended or modified only by a written
instrument executed by the Parties.
32. Action or A~proval. When action and/or approval by City is required under this
Agreement, the City Manager may act on and/or approve such matter unless the City Manager
determines that such action and/or approval requires referral to the City Council for
consideration.
33. 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.
Resolution No. 2010-050 N.C.S. Page 10
34. Parties Not Co-Venturers. Nothing in this Agreement is intended to or shall establish the
F'arties as Partners, co-venturers, or principal or agent with respect to one another.
35. Non-Liabilitv of Officials, Emplovees and Agents. No member, official, employee, or
agent of City or Agency shall be personally liable to Owner or Gonella, or their successors in
interest, in the event of any breach or default by City or for any amount that may become due
to Owner, Gonella, or their successors in interest, pursuant to this Agreement.
36. Cure Period. No Party shall be deemed to be in default of this Agreement until such
Party has received notice of the claimed default and been given ten (10) days from the receipt
of such notice in which to cure fhe claimed default.
SIGNATURES ON FOLLOWING PAGE.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year first
hereinabove set forth in Sonoma County, California.
OWNER:
MYOB INVE$TMENTS
A California limited partnership
By: Its General Partner
FRB Management, LLC, a California limited liability company
By: By:
Frank Barker, Managing Member Anthony Ferolito, Managing Member
GONELLA:
By:
Victor Gonella
CITY:
THE CITY OF PETALUMA,
A California municipal corporation
By:
John C. Brown, City Manager
ATTEST:
By:
Claire Cooper, Cify Clerk
Approved as to form:
By:
Eric W. Danly, City Attorney
Resolution No. 2010-050 N.C.S. Page 11
BICF I Carlenzoli
Engineers ! Surveyors ! Plan~ers
325 Tesconi Grcle
Santa Rosa, CA 95401
~ A R L E N Z O L I Tel. 707-542-6465
Fax 707-542-1645
ENtiIYFERS, SUP.VFYCiRS' I~I.A~'4NFG5
www.bkf.com
EXHIBIT `A'
LEGAL DESCRIPTION - PARCEL A
ROAD RIGHT UF WAY
AUTO CENTER DRIVE EXTENSION
Be+ng an easement for Public Road and Public Utility purposes over the lands of
MYOB Investments, as described in that Grant Deed Correction filed under pocument
No. 1995-013874, Official Records of the County of Sonoma, and being more
particularly described as follows:
Being ail that land described as I'arcel Three in the Grant Deed Correction from Helen
L. Oberg as Trustee of the Helen L, Oberg Trust, filed under pocument No. 1995-
013874, pfficial Records of the County of Sonoma.
Aiso described as follows:
Being a portion of the lands of MYOB Investments, a limited partnership, as described
in that Grant Deed Correction from Helen L. Oberg as Trustee of the Helen ~. Oberg
Trust, filed under pocument No. 1995-013874, Official Recards of the Coun#y of
Sonoma and being more particulariy described as foliows:
Being a strip of land of the uniform width of 60 feet, measured at right angles, and tying
northeasterly of the following described line:
Beginning at a Yz" Iron pipe, tagged RCE 11226, shown marking the most westeriy
corner of Lot 1 as shown on City of Petaluma Parcel Map No. 210, filed in Book 379 of
Maps at Page 48-49, Sonoma County Records; thence, from said Point of Beginning,
North 53°35'28" West for a distance of 460.44 feet to the Point of Termination of the
hereinabove described line.
Ths sidelines of said strip shail be lengthened or shortened as necessary to +ntersect
the northwesterly boundary of said Lot 1 on the south, and the southeasterly boundary
of Old Redwood Highway on the north.
Containing: 28,527 Sq. Ft. (0.65 Acres) of land more or less
Basis of Bearings: City of Petaluma Parcel Map No. 210, filed in Book 379 of Maps at
Page 48-49, Sonoma County Records.
K:1Eng091D991281Docsllegal DescnplionslMYOB Right of Way.doc
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Resolution No. 2010-050 N.C.S. Page 13
CARLENZOLI
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Resolution No. 2010-050 N.C.S.
BKF I Cadenzolf
Engineers / Surveyors / Planners
325 Tesco~i Cirde
Santa Rosa, CA 95401
Tei. 70J-542-6465
Fax.707•542-1645
www.bkf.com
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Page 14
EXHIBIT B'
LEGENO:
PARCEL ~ A~ p IRON PIPE, SIZE & TAGGED AS SHOWN
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PH: 707-542-6465 Job No. 2009 9128
C A R L E N Z O LI FAX: 707-542-1645 By JAK Date MAR 2010 Chkd.RHT
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Resolution No. 2010-050 N.C.S. Page 15
CARGENZOLI
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BKF 1 Carlenzoli
Engineers ( Surveyors 1 Planners
325 Tesconi C~rcle
5anta Rosa, CA 95401
Tel. 707-542-6465
Fax.707-542-1645
www.bkf.com
EXHIBIT `C'
LEGAL DESGRIPTION - PARCEL B
ROAD RIGHT OF WAY
AUTO CENTER DRIVE EXTENSIOtJ
Being an easement for Public Road and Public Utility purposes over the lands of
MYOB Investments, a limited partnership, as described in that Grant Qeed Correction
filed under pocument No. 1995-013874, Official Records of the Counry of Sonoma,
and being more particulariy described as follows:
Being a portion of the lands of MYOB Investments, a limited partnership, as described
in that Grant Deed Correction from Hefen L. Oberg as Trustee of the Helen L. Oberg
Trust, filed under Qocument No. 1995-013874, Official Records of the County of
Sonoma and being more particularly described as follows:
Commencing at a YZ' Iron pipe, tagged RCE 11226, shown marking the most westerly
corner of Lot 1 as shown on City of Petaluma Parcel Map No. 210, filed in Book 379 of
Maps at Page 48-49, Sonoma County Records; thence, from said Point of
Gommencement, along the northwesterly boundary of said Lot 1, North 36°24'32" East
for a distance of 60.00 feet to the Paint of Beginning of the parcel to be herein
described; thence, from said Point of Beginning, continuing along said narthwesterly
boundary, North 36°24'32" East far a distance of 17.61 feet; thence, leaving said
northwesterly boundary, South 70°40'52" West for a distance of 21.31 feet to the
northeasterly boundary of Parcel Three of said lands of MYOB investments; thence,
along said northeasteriy boundary, South 53°35'28" East for a distance of 12.00 feet to
the Point of Beginning of the hereinabove described parcel of land.
Containing: 106 Sq. Ft. of land more or less
Basis of Bearings: City of Petaluma Parcel Map No. 210, filed in Book 379 of Maps at
Page 48-49, Sonoma County Records.
Prepared by:
K:1Eng0910991281DocslLegal Descriptions1MY08 Right ot Way2.doc
3/11l10
DATED: .~ f l~_
Resolution No. 2010-Q50 N.C.S. Page 16
EXHIBIT 'D'
PARCEL 'B' - SITE PLAN
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' PH: 707-542-6465 Job No. 2009 9128
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