HomeMy WebLinkAboutStaff Report 5.G 4/7/2014DATE: April 7, 2014
TO: Honorable Mayor and Members of the City Council through City Manager
FROM: Dan St. John, RASCE — Director, Public Works and Utilities
Curt Bates, P.E. — City Engineer
SUBJECT: Introduction (First Reading) of an Ordinance Authorizing the City Manager to
Execute an Agreement with the Sonoma Marin Area Rail Transit District
(SMART) for the Conveyance of Real Property located at Haystack Landing
(APN: 005-060-062), Construction of Undercrossing Improvements and
Reservation and Grant of Easements for Planned Pedestrian and Bicycle Trail
RECOMMENDATION
It is recommended that the City Council introduce the attached ordinance authorizing the City
Manager to execute an agreement with the Sonoma Marin Area Rail Transit District (SMART)
for the conveyance of real property located at Haystack Landing (APN: 005-060-062),
construction of undercrossing improvements and reservation and grant of easements for planned
pedestrian and bicycle trail.
BACKGROUND
The SMART sales tax measure, Measure Q. was approved by voters in November of 2008. The
SMART rail commuter line will service Sonoma and Marin Counties between Santa Rosa and
San Rafael, with possible expanded service and station sites in the future. The SMART project
has been under construction for several years, including segments within the City of Petaluma,
and is expected to commence passenger rail service starting in 2016.
A major component of the SMART project is the removal of the existing swing bridge and
installation of a bascule bridge over the Petaluma River immediately east of the US 101 freeway
bridge. According to SMART representatives, the existing railroad swing bridge is over 100
years old, has exceeded its useful life and does not operate quickly enough for the anticipated
passenger trains. Therefore, a bascule bridge will be installed for greater reliability and improved
service. As part of the project, the bridge and rail tracks immediately north of the Petaluma River
will be realigned, and the tracks will be relocated partially onto the City property known as
"Haystack Landing." (See attached location map.) The realignment will maximize the navigable
channel width in the Petaluma River pursuant to discussions with the United States Coast Guard
and conurercial shipping company, Jerico Products, hic. To accommodate the new tracks and
modified alignment, SMART is requesting that the City convey to SMART approximately 1.65
Agenda Revi .
City Attorney Finance Director City Manager
acres of Haystack Landing, identified as Assessor Parcel Number 005-060-062. In the process of
negotiating the conveyance of the property, City staff identified the need to acquire future
easements and construct an undercrossing structure to accommodate the future River Trail in the
area of the SMART project. This is necessary to comply with the transportation element of the
City's General Plan 2025 and the City's Pedestrian and Bicycle Plan, which call for a bicycle
and pedestrian connection between the industrial area on Hopper Street and the Petaluma
Marina. The proposed agreement addressed herein would convey the necessary property to
SMART for their railroad bridge improvement while securing the needed easements and railroad
undercrossing for the future River Trail in the area.
DISCUSSION
As part of the proposed property transfer and SMART rail and bridge reconstruction, City staff
requested that SMART install an undercrossing structure to accommodate a future public access
pathway, aka "River Trail" connection as shown in Exhibit A, and provide the needed easements
for the future trail. The proposed undercrossing structure would connect the leg of the future
pathway to be routed under the US 101 Bridge on Caltrans property and serve the proposed
Riverfront property development with the leg crossing over to the Marina and Alman Marsh,
Shollenberger Park, and Ellis Creek conservation areas. When completed, the River Trail would
connect Lucchesi Park, through downtown, to Ellis Creek. A future pedestrian and bicycle bridge
would be needed to cross a narrow drainage channel to connect the Haystack property to an
existing trail on the Marina peninsula.
It is critical to install the undercrossing structure as part of SMART's construction project while
the new railroad embankment is being constructed and tracks are being re-laid, as opposed to
waiting to install the structure after SMART's work is done and passenger rail service has
commenced. Staff has specified in the subject agreement that the ped/bike undercrossing be 8
feet high and 10 feet wide, be constructed to exceed current ADA standards, have a sump to
manage internal drainage, and be suitable for lighting in the future.
The preliminary siting of the trail and undercrossing is the result of an initial alignment study and
has been reviewed and recommended by PBAC. Two alternatives to connect the trail over to the
Marina were considered, one including a bridge over a small drainage channel connecting to the
existing path on the "Marina Peninsula" and the other running up the west side of the channel to
Lakeville Road and then through the parking lot to the Marina. The bridge alternative is
recommended because it provides a more aesthetic and economical solution.
The attached agreement will reserve a right to a 20 -foot wide public access easement and a 50 -
foot wide temporary construction easement for the future pathway. These easements are
necessary for the City to build and maintain the undercrossing structure and future connecting
pathway segments. The final alignment of the River Trail has not yet been exactly established
through a final design process.
SMART prepared an appraisal dated July 16, 2013 for the Haystack Landing property which sets
the appraised value at $27,470 based on existing land use and development potential. The City's
right-of-way appraiser provided a peer review of the analysis and concurred with SMART's
appraisal. The original estimated cost to the City for construction of the undercrossing structure
and grant of easements was approximately $39,700, which would have left a balance of $12,230
owed by the City to SMART. However, as a result of subsequent revisions to design of
SMART's plamied railroad bridge, the estimated undercrossing construction costs have been
reduced. Accordingly, City and SMART staff agree it is appropriate for the City to convey the
Haystack Landing property required by SMART, reserving easements needed for the River Trail,
and for SMART to construct the undercrossing improvements and convey easements required for
the River Trail, with no additional payment required from the City.
FINANCIAL IMPACTS
SMART provided the City with an original cost estimate in the amount of $39,700 to design and
construct the pathway undercrossing structure and related improvements, and provide easements
for the River Trail. However, as a result of subsequent revisions to design of SMART's planned
railroad bridge, the estimated undercrossing constriction costs have been reduced. The appraisal
report for the City's Haystack Landing property valued the property at $37,470. City and
SMART staff agree it is appropriate for the City and SMART to exchange the Haystack Landing
property, with reservation of River Trail easements, for construction of the undercrossing
improvements, and grant of River Trial easements, with no further consideration exchanged
between the agencies. This results in a savings to the City of $12,230 that no longer must be paid
to SMART and that would have been charged to Traffic Impact Mitigation Fees.
ATTACHMENTS
1. Ordinance.
2. Exhibit A — Draft Conveyance Agreement
EFFECTIVE DATE
OF ORDINANCE
Introduced by
Attaclunent 1
ORDINANCE NO. N.C.S.
Seconded by
AN ORDINANCE APPROVING AN AGREEMENT WITH THE SONOMA MARIN
AREA RAIL TRANSIT DISTRICT (SMART) FOR THE CONVEYANCE OF REAL
PROPERTY LOCATED AT HAYSTACK LANDING (APN: 005-060-062)1
CONSTRUCTION OF UNDERCROSSING IMPROVEMENTS AND RESERVATION
AND GRANT OF EASEMENTS FOR A PLANNED PEDESTRIAN AND BICYCLE
TRAIL (SMART)
WHEREAS, the Sonoma Marin Area Rail Transit District (SMART) requires the acquisition of
a portion of City -owned property referred to as the Haystack Landing property as identified in
the attached agreement to install railroad track bridge and related improvements in order for
SMART to operate passenger rail service in Sonoma and Marin Counties; and,
WHEREAS, the City of Petaluma recognizes the importance of regional passenger rail service
to Petaluma and Sonoma and Marin Counties, and desires to cooperate with SMART to facilitate
said rail service; and,
WHEREAS, it is desirable as part of construction of SMART's railroad track bridge and related
improvements to have constructed a concrete undercrossing structure and related improvements
("Undercrossing Improvements") in the new railroad embankment to accommodate the future
City River Trail alignment in the area of SMART's project within the Haystack Landing
property in accordance with the terms of the attached agreement for a firture pedestrian and
bicycle trail identified in the Petaluma General Plan as the River Trail; and,
WHEREAS, it is desirable in consideration of the conveyance of part of the City -owned
Haystack Landing property to reserve from such conveyance a 20 -foot wide public access
easement and a temporary construction access easement of sufficient size necessary for future
River Trail pathway construction, at no additional charge to the City, to accommodate
construction and operation of the undercrossing and associated future pathway segments,
including a future pedestrian and bicycle bridge with approach(s), and/or abutment(s) on the
Haystack Landing property, in accordance with the Petaluma General Plan; and
WHEREAS, it is desirable in consideration of the conveyance of part of the City -owned
Haystack Landing property for the City to obtain from SMART a 20 -foot wide public access
easement and a temporary construction access easement of sufficient size necessary for future
River Trail pathway construction, across SMART -owned property adjacent to the Haystack
Landing property, at no additional charge to the City, to accommodate construction and
operation of the undercrossing and associated future pathway segments, including a future
pedestrian and bicycle bridge, in accordance with the Petaluma General Plan; and
WHEREAS, the City of Petaluma has not identified existing or foreseeable uses for the
Haystack Landing property other than the proposed River Trail public bicycle and pedestrian
facilities, and conveyance of part of the Haystack Landing property for installation of railroad
track bridge and related improvements for SMART operation of passenger rail service in
Sonoma and Marin Counties and construction of undercrossing improvements and establishment
of easements for the planned River Trail conflict with no City plans for the Haystack Landing
property and are consistent with the Petaluma General Plan; and.
WHEREAS, Section 46 of the Petaluma City Charter requires that actions providing for
expenditures of $3,000 or more for acquisition or sale of real property be taken by ordinance,
except where action is taken pursuant to general state law; and
WHEREAS, on July 19, 2006, the SMART Board certified a Final Environmental Impact
Report ("FEIR") pursuant to the California Environmental Quality Act ("CEQA") for SMART's
5
passenger rail project, including replacement of numerous bridges, including the Haystack
Landing Bridge over the Petaluma River; and
WHEREAS, on February 19, 2014, by Resolution No. 2014-01, the SMART Board adopted an
Addendum to the FEIR addressing potential environmental impacts of proposed modifications to
the Haystack Landing Bridge Replacement project, which modifications include the
Undercrossing Improvements for the fature River Trail pedestrian and bicycle pathway, and the
SMART Board found that the bridge replacement project modifications will not result in any
new significant environmental effects or a substantial increase in the severity of the effects
examined in the FEIR and the 2008 Supplemental EIR;
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
PETALUMA AS FOLLOWS:
1. The City Council hereby introduces this ordinance authorizing the City Manager to
execute an agreement with the Sonoma Marin Area Rail Transit District (SMART) for the
conveyance of real property located at Haystack Landing (APN: 005-060-062), construction of
undercrossing improvements and reservation and grant of easements for a planned pedestrian and
bicycle trail.
2. The City Manager is hereby authorized and directed to sign an agreement with the
Sonoma Marin Area Rail Transit District (SMART) for the conveyance of real property located
at Haystack Landing (A -PN: 005-060-062), construction of undercrossing improvements and
reservation and grant of easements for planned pedestrian and bicycle substantially in the form
attached to and made a part of this ordinance as Attaclunent A.
3. The signed agreement shall be recorded with the Sonoma County Recorder's Office
within 30 days after signature by all parties.
C7
Recording requested by and when recorded return to:
Sonoma -Marin Area Rail Transit District
5401 Old Redwood Highway, 2"' Floor
Petaluma, CA 94954
Exempt from recording fees
Gov. Code §6103
USE
AGREEMENT OF FEE ACQUISITION, GRANT OF EASEMENT, AND
CONSTRUCTION OF UNDERCROSSING IMPROVEMENTS
SUMMARY
Grantors/Grantees: City of Petaluma, a California
charter city
Sonoma -Marin Area Rail Transit
District (SMART)
Grantors'/Grantees' City of Petaluma
Addresses: 11 English Street
Petaluma, CA 94952
SMART
5401 Old Redwood Highway —
2"d Floor
Petaluma, CA 94954
Property Address: Lakeville Highway, Petaluma,
CA 94952
Assessor's Parcel 005-060-062 (portion), 005 -060 -
Nos.: 081 (portion)
Acquisition: SMART proposes to acquire a
portion of City -owned property in
fee from City, subject to
easements reserved by the City
for a bicycle and pedestrian
Project: SMART Transit
System
Property Owners:
City of Petaluma
SMART
APNs:
005-060-062
005-060-081
undercrossing and trail. SMART
to construct undercrossing to City
specifications on SMART
property at Haystack Bridge.
City proposes to acquire
easements from SMART on
SMART -owned property for
construction and operation of the
planned bicycle and pedestrian
trail to traverse the City and
SMART -owned property.
Consideration: Quitclaim of Future Railway
Property with appraised value of
$27,500 subject to reservation of
pathway easement in exchange
for construction of undercrossing
improvements and grant of
pathway easements.
Project: SMART Transit
System
Property Owners:
City of Petaluma
SMART
APNs:
005-060-063
005-060-081
Exhibits: Exhibit A - Legal Description of
Future Railway Property to be
acquired by SMART
Exhibit B - Quitclaim Deed for
Future Railway Property to be
acquired by SMART with
reservation of City easement
Exhibit C — Grant of Easement to
City for bicycle and pedestrian
trail across SMART property
Exhibit D - Diagram and
specifications for undererossing
improvements to be constructed
by SMART on SMART property
and planned location of bicycle
and pedestrian trail
AGREEMENT OF FEE ACQUISITION
(PARTIAL FEE), GRANT OF EASEMENT, AND CONSTRUCTION OF
UNDERCROSSING IMPROVEMENTS
THIS AGREEMENT (this "Agreement") is entered into as of the day of
3014, by and between CITY OF PETALUMA, a
California charter city ("City"), and the SONOMA-MARIN AREA RAIL TRANSIT
DISTRICT, a public agency ("SMART"). City and SMART are sometimes referred to
herein individually as a "party," and collectively as the "parties."
THE PARTIES ENTER INTO THIS AGREEMENT on the basis of the following facts,
understanding, and intentions:
A. City is the owner of certain real property located in the City of Petaluma, County of
Sonoma, State of California. The real property is bordered by the Petaluma River,
the Petaluma Marina, Lakeville Highway, and real property owned by SMART,
described below, real property owned by the Sonoma County Water Agency, and
other property, and is identified by Sonoma County Assessor's Parcel Number 005-
060-063 and is more particularly described in Article 1 below (the "City
Property').
0
Project: SMART Transit
System
Property Owners:
City of Petaluma
SMART
APNs:
005-060-062
005-060-081
B. SMART is the owner of certain real property located in the County of Sonoma,
State of California. The real property is bordered by the Petaluma River, the City
Property, Lakeville Highway, real property owned by the Sonoma County Water
Agency, and other property, and is identified by Sonoma County Assessor's Parcel
Number 005-060-081, and is more particularly described in Article 1—below (the
"SMART Property").
C. SMART desires to acquire fee title to a portion of the City Property, together with
all buildings, structures, improvements, landscaping, irrigation systems, machinery,
fixtures and equipment affixed or attached to the City Property to be acquired, and
all easements and rights appurtenant to the City Property (as more particularly
described in Article 1 below), and SMART desires to acquire the City Property
from City, on the terms and conditions set forth herein, to facilitate relocation of
SMART's railway and a bridge across the Petaluma River supporting SMART's
railway. City agrees to convey the portion of the City Property described in Exhibit
A to SMART, subject to reservation of easements described in Exhibit A as needed
for planned construction of a bicycle and pedestrian pathway described below.
D. SMART agrees to construct undercrossing improvements beneath SMART's
railway improvements to be located on the property to be acquired from the City.
SMART will construct the undercrossing improvements ("Undercrossing
Improvements") in accordance with this Agreement, including the specifications in
Exhibit D within the easement to be reserved by the City from the City Property to
be conveyed to SMART.
E. SMART agrees to convey to the City easements on the SMART Property as
described in Exhibit C as needed for planned construction and operation of a
bicycle and pedestrian pathway ("Pathway") traversing the City Property and the
SMART property via the Undercrossing Improvements.
NOW THEREFORE in consideration of the mutual covenants and promises of the parties,
the parties hereto agree as follows:
ARTICLE I — FUTURE RAILWAY PROPERTY, TITLE
1.1 Property Included in Conveyance to SMART. City hereby agrees to convey
to SMART, and SMART hereby agrees to acquire from City, subject to the terms and
conditions set forth herein, the following:
a. in fee simple interest, a portion of that certain real property identified by
Sonoma County Assessor's Parcel Number 005-060-062, and more particularly
10
Project: SMART Transit
System
Property Owners:
City ofPetaluma
SMART
APNs:
005-060-062
005-060-081
and legally described in Exhibit A attached hereto (the "Future Railway
Property"); and
b. all rights, privileges and easements appurtenant to the Future Railway Property,
including, without limitation, all minerals, oil, gas and other hydrocarbon
substances on and under the Future Railway Property, as well as all
development rights, air rights, water, water rights, and water stock relating to
the Future Railway Property, and any other easements, rights-of-way, or
appurtenances used in connection with the beneficial use and enjoyment of the
Future Railway Property (all of which are collectively referred to as the
"Appurtenances"); and
c. reserving therefrom to the City easements on the Future Railway Property for
construction and operation of the Under Crossing Improvements and the
Pathway, which easements are more particularly and legally described in
Exhibit C, which easements to be reserved from the Future Railway Property
are collectively referred to as the Undercrossing Easements.
1.2 Title to Property. On the Closing Date, City shall convey to SMART and
SMART shall acquire by quitclaim deed from City, all of City's interest in the Future
Railway Property in accordance with the terns and conditions of this Agreement and the
exhibits attached hereto, subject to the reserved Undercrossing Easements and the
exceptions described in Section 6.1 .2 of Article 6 (the "Permitted Exceptions"). Evidence
of delivery of fee title shall be the issuance by the Title Company (as defined hereinafter)
of the CLTA Owner's Policy of Title Insurance described in Section .2.3, in the full
amount of the Appraised Value of the Future Railway Property, insuring fee simple title to
the Future Railway Property and the Appurtenances, in SMART, subject to the
Undercrossing Easements and the Pennitted Exceptions.
ARTICLE 2 - PATHWAY EASEMENTS
2.1 Property Included in Grant. On the Closing Date, SMART shall convey to
City and City shall acquire by grant from SMART the Pathway Easements as described in
Exhibit C in accordance with the terms of this Agreement and the exhibits attached hereto.
ARTICLE 3 — UNDERCROSSING IMPROVEMENTS
3.1 SMART will construct the Undercrossing Improvements as described in
Exhibit D at the same time SMART constructs its Future Railway project at no cost to the
City.
Project: SMART Transit
System
Property Owners:
City of Petaluma
SMART
APNs:
005-060-062
005-060-081
3 2 SMART will contract for construction of the Undercrossing Improvements
in accordance with SMART's requirements for such work and applicable law.
3.3 SMART's construction agreement covering the Undercrossing
Improvements must provide that SMART's contractor(s) shall indemnify, defend with
counsel acceptable to City, and hold harmless to the full extent permitted by law, City and
its officers, officials, employees, agents and volunteers from and against any and all
liability, loss, damage, claims, expenses and costs (including, without limitation, attorney
fees and costs and fees of litigation) (collectively, "Liability") of every nature arising out
of or in connection with the performance of the Undercrossing Improvement work or the
failure by SMART's contractor or contractors to comply with any of the obligations
contained in the agreement awarded by SMART, except such Liability caused by the
active negligence, sole negligence or willful misconduct of the City.
ARTICLE 4 - CONSIDERATION
4.1 Future Railway Property Acquisition. The consideration for SMART's
acquisition of the Future Railway Property with an appraised value of $27,500.00
("Appraised Value") shall be SMART's construction of the Undercrossing Improvements
and conveyance to the City of the Pathway Easements. The City's reservation of the
Undercrossing Easements from the Future Railway Property is part of the bargained -for
consideration between the City and SMART and no additional compensation shall be due
SMART for the Undercrossing Easements.
4.2 SMART is granting to the City the Pathway Easements as part
consideration for the City's arranging to transfer the Future Railway Property to SMART.
4.3 Construction Cost. SMART shall install the Undercrossing Improvements as
described in Exhibit D at no cost to the City in consideration of the City's arrany_ing to transfer the
Future Railway Property to SMART..
ARTICLE 5 - CONDITIONS TO CONVEYANCE
5.1 Conditions Precedent to Citv's Obligations to Convey. The obligation of
the City to convey the Future Railway Property to SMART is expressly conditioned upon
the satisfaction prior to Close of Escrow of each of the conditions set forth in this Section
5. 1, each of which is for the benefit of the City and any or all of which may be waived by
City, in writing, at City's option. If any condition set forth in this Section 5.1 is not fully
satisfied or waived in writing by City, this Agreement shall terminate, but without
l�
Project: SMART Transit
System
Property Owners:
City of Petaluma
SMART
APNs:
005-060-062
005-060-081
releasing SMART from liability if SMART defaults in the performance of any such
covenant or agreement to be performed by SMART before such termination.
5.1.1 On the Closing Date (defined below), SMART shall not be in
default in the performance of any covenant or agreement to be performed by SMART
under this Agreement, including its obligation to deliver into escrow the documents
referenced in Section 6.1.2 below.
5.1.2 On the Closing Date, all representations made by SMART in Article
7 hereof shall be true and correct as if made on and as of the Closing Date, without
exceptions.
5.2 Conditions Precedent to SMART's Obligations to Acquire. The obligation
of SMART to acquire the Future Railway Property from City is expressly conditioned
upon the satisfaction prior to the Close of Escrow of each of the conditions set forth in this
Section 53, each of which is for the benefit of SMART and any or all of which may be
waived by SMART, in writing, at SMART's option. If any condition set forth in this
Section 5.2 is not fully satisfied or waived in writing by SMART, this Agreement shall
terminate, but without releasing City from liability if City defaults in the performance of
any such covenant or agreement to be performed by City before such termination.
5.2.1 On the Closing Date, City shall not be in default in the performance
of any covenant or agreement to be performed by City under this Agreement.
5.2.2 On the Closing Date, all representations made by City in Article 5
hereof shall be true and correct as if made on and as of the Closing Date, without
exceptions.
5.23 On the Closing Date, the Title Company shall be unconditionally
and irrevocably committed to issue to SMART a California Land Title Association
Owner's Policy Form (Amended 6/17/06) of title insurance, with creditors rights
exceptions or exclusions removed and with liability in the amount of the Appraised Value,
containing all endorsements requested by SMART, insuring SMART that fee simple title
to the Future Railway Property is vested in SMART subject to the Undercrossing
Easements and the Permitted Exceptions (collectively, the "Title Policy').
5.3 Construction of Undercrossing Improvements: As a condition of
conveyance of the Future Railway Property, SMART agrees to construct the
Undercrossing Improvements as described in Exhibit D during construction of SMART's
project to replace the bridge at Haystack Bridge Landing on the Future Railway Property.
The cost of such Undercrossing Improvements shall be borne by SMART.
I9
Project: SMART Transit
System
Property Owners:
City of Petaluma
SMART
APNs:
005-060-062
005-060-081
5.4 Prior to completion and public use of the Pathway Improvements SMART
and City agree to work cooperatively in developing an agreement to define maintenance
responsibilities concerning the Undercrossing and Pathway Improvements on SMART's
property ("Maintenance Agreement"). The Maintenance Agreement will provide for
coordination of SMART and City rights and responsibilities regarding maintenance of the
Undercrossing and Pathway Improvements. City shall have no liability concerning
maintenance or use of the Undercrossing Improvements until completion of the
Undercrossing Improvements, City's acceptance of the Undercrossing Improvements as
satisfying the requirements of Exhibit D and execution by SMART and City of the
Maintenance Agreement providing for maintenance of the Undercrossing and Pathway
Improvements.
ARTICLE 6 - CLOSING AND ESCROW
6.1 Deposits Into Escrow. Within ten (10) days after execution of this Agreement by
SMART and City, SMART shall establish an escrow with Fidelity National Title Company (the
"Title Company"), at its office located at 11050 Olson Drive, Suite 200, Rancho Cordova,
California 95670. A copy of this Agreement, duly executed by both parties, shall be deposited
therein. Prior to or on the Closing Date, the following shall be deposited into escrow with the Title
Company:
6.1.1 SMART. SMART shall deposit funds in an amount necessary for
closing costs and SMART's share of prorations, as set forth below. In addition, SMART
shall deposit a Grant of Easement substantially in the form of Exhibit C attached hereto
("Grant of Pathways Easements") duly executed and acknowledged by SMART.
6.1.2 Com. City shall deposit into escrow prior to the Closing Date a
quitclaim deed substantially in accordance with Exhibit B ("Quitclaim Deed")
relinquishing City's interest in the Future Railway Property, subject to reservation of the
Undercrossing Easements and the following exceptions which SMART hereby approves
(the "Permitted Exceptions"):
• Exception 1 — "Property taxes, which are a lien not yet due and
payable..:"
• Exception 2 — "The lien of supplemental taxes, if any, assessed pursuant
to the provisions..."
• Exception 3 — "Any adverse claim based on the assertion that:.."
• Exception 4 — "Rights and easements for navigation and fishery which
may exist..."
• Exception 5 — "Any rights in favor of the public which may exist on
It
Project: SMART Transit
System
Property Owners:
City of Petaluma
SMART
APNs:
005-060-062
005-060-081
said land..."
• Exception 6 — "Easement(s) for the purpose(s) shown below and rights
incidental thereto..."
• Exception 7 — "The lack of legal right of access to and from a public
street of highway."
• Exception 8 — "Water rights, claims or title to water, whether or not
disclosed by the public records."
City shall deposit the Quitclaim Deed duly executed and acknowledged by
City.
6.13 Escrow Instructions. City hereby authorizes SMART to prepare and
file escrow instructions with the escrow agent on behalf of City in accordance with this
Agreement.
6.2 Close of Escrow.
6.2.1 Escrow shall close within sixty (60) days of execution of this
Agreement (the "Outside Closing Date") unless extended by SMART at SMART's sole
option. SMART shall give City and the Title Company written notice specifying the actual
Closing Date selected by SMART at least five (5) business days prior to such Closing
Date.
6.2.2 Closing of Escrow. When all conditions precedent specified in
Article 5 hereof have been either satisfied or waived by City or SMART, and the Title
Company has received all necessary cash and documents, but in any event prior to the
Outside Closing Date, the Title Company shall immediately cause the following to occur
(the "Close of Escrow"):
6.2.2.1 Recording. This Agreement, the Quitclaim Deed, and the
Grant of Easement shall be recorded in the Official Records of the County where the
Future Railway Property is located. The date the documents are recorded is the "Closing
Date."
6.2.2.2 Tax Filing. If applicable, the Title Company shall file the
information return for the sale of the Future Railway Property required by Section 6045 of
the Internal Revenue Code of 1986, as amended, and the Income Tax Regulations
thereunder, which requires that a tax return be filed with the Internal Revenue Service in
connection with the sale of real property in which a broker is involved.
,6
Project: SMART Transit
System
Property Owners:
City of Petaluma
SMART
APNs:
005-060-062
005-060-081
6.2.23 Title Policy. The Title Company shall issue to SMART the
Title Policy described in Section 533.
6.3 Closing Costs.
63.1 Closing Costs. SMART and City each shall pay its own attorney's
and broker's fees in connection with negotiating this Agreement and closing the
transactions contemplated hereby. SMART shall pay recording costs, if any, escrow fees
and the title insurance premium for the Title Policy (if a policy of title insurance is desired
by SMART).
ARTICLE 7 - REPRESENTATIONS AND WARRANTIES
7.1 Authority.
7.1.1 City's Authority. City is a charter city created under the laws of the
State of California. City has full power and authority to enter into this Agreement and to
perform this Agreement. The execution, delivery and performance of this Agreement by
City have been duly and validly authorized by all necessary action on the part of City and
all required consents and approvals have been duly obtained. This Agreement is a legal,
valid, and binding obligation of City, enforceable against City in accordance with its terms,
subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws affecting the rights of creditors generally.
7.1.2 SMART's Authority. SMART is a public agency created under the
laws of the State of California. SMART has full power and authority to enter into this
Agreement and to perform this Agreement. The execution, delivery and performance of
this Agreement by SMART has been duly and validly authorized by all necessary action
on the part of SMART and all required consents and approvals have been duly obtained.
This Agreement is a legal, valid and binding obligation of SMART, enforceable against
SMART in accordance with its terms, subject to the effect of applicable bankruptcy,
insolvency, reorganization, arrangement, moratorium or other similar laws affecting the
rights of creditors generally.
7.13 Limited Representation Regarding Condition of Future Railway
Propertv and Citv Disclaimer of Liability. City represents to SMART that as of the Close
of Escrow, City is not aware that the Future Railway Property is in violation of any federal,
state, or local law, ordinance, or regulations relating to the environmental conditions on,
under, or about the Future Railway Property including, but not limited to, soil and ground
water conditions. The City further represents that the City is aware of no proceeding or
inquiry by any governmental authority (including without limitation, the California State
1lo
Project: SMART Transit
System
Property Owners:
City of Petaluma
SMART
APNs:
005-060-062
005-060-081
Department of Health Services) with respect to the presence of such Hazardous Waste on
the Future Railway Property or the migration thereof from or to other property. For the
purpose of this Agreement, Hazardous Material shall include but not be limited to
substances defined as "hazardous substances," "hazardous material," or "toxic substances"
in the Comprehensive Enviromnental Response, Compensation and Liability Act of 1980,
as amended, 42 USC Section 9601 et seq.; the Hazardous Wastes Transportation Act 49
USC Section 1801, et seq.; the Resources Conservation and Recovery Act, 42 USC
Section 6901, et seq.; and those substances defined as "hazardous wastes" in Section
25117 of the California Health and Safety Code or as `hazardous substances" in Section
25316 of the California Health and Safety Code; and in the regulations adopted and
publications promulgated pursuant to said laws. Except for these limited representations,
the City disclaims any and all representations, warranties or liability of any kind
concerning the Future Railway Property. The Future Railway Property, regarding which
the City is relinquishing its interest for the benefit of SMART pursuant to this Agreement,
is conveyed to SMART pursuant to this Agreement "as -is" and "with all faults." SMART
understands and agrees that it is the responsibility of SMART to make whatever
investigation of the Future Railway Property that SMART's Railway Project, applicable
law and sound business practice may require, and City agrees to cooperate with SMART
regarding any such investigation concerning the condition of the future Railway Property.
7.2 Brokers. City has not dealt with any investment adviser, real estate broker
or finder, or incurred any liability for any commission or fee to any investment adviser,
real estate broker or finder, in connection with the sale of the Future Railway Property to
SMART under this Agreement. SMART has not dealt with any investment adviser, real
estate broker or finder, or incurred any liability for any commission or fee to any
investment adviser, real estate broker or finder, in connection with the purchase of the
Future Railway Property by SMART or this Agreement.
ARTICLE 8 - COVENANTS
8.1 Operation of Future Railway Property. Between the date of this Agreement
and the Closing Date, City shall not execute any lease affecting the Future Railway
Property, without the prior approval of SMART, which approval may be withheld in the
sole and absolute discretion of SMART. Between the date of this Agreement and the
Closing Date, City shall make no alterations to the Future Railway Property without the
prior approval of SMART, which approval may be withheld in the sole and absolute
discretion of SMART.
8.2 Survival of Representations and Disclaimers of Liability. The limited
representations and disclaimers of liability of City in Article 7 hereof shall survive the
11
Project: SMART Transit
System
Property Owners:
City of Petaluma
SMART
APNs:
005-060-062
005-060-081
Close of Escrow. City shall indemnify and defend SMART against and hold SMART
harmless from all claims, demands, liabilities, losses, damages, costs and expenses,
including reasonable attorneys' fees and disbursements, that may be suffered or incurred
by SMART if City was aware any representation made by City in Article 7 hereof was
untrue or incorrect in any respect when made.
8.3 Transfers Prohibited. Between the date of this Agreement and the Closing
Date, City shall not in any manner sell, convey, assign, transfer, encumber or otherwise
dispose of the Future Railway Property, or any part thereof or interest therein.
ARTICLE 9 — REMEDIES
9.1 If the Close of Escrow does not occur because of a party's default under or
breach of this Agreement, then the other party shall have the right to pursue any and all
remedies available to the non -defaulting party at law or in equity, including the right to
seek damages or to require specific performance of this Agreement.
ARTICLE 10 - GENERAL PROVISIONS
10.1 Binding on Successors. The terms, covenants, and conditions herein
contained shall be binding upon and insure to the benefit of the successors and assigns of
the parties hereto.
10.2 Entire Agreement. This Agreement contains all of the covenants,
conditions, and agreements between the parties and shall supersede all prior
correspondence, agreements, and understandings both verbal and written. No addition or
modification of any term or provision shall be effective tmless set forth in writing and
signed by authorized representatives of City and SMART.
103 Attorney's Fees. In the event either party to this Agreement institutes legal
action to interpret or enforce the terms hereof, or to obtain money damages, the prevailing
party shall be entitled to recover from the other, in addition to costs and judgment as
awarded by the court, its attorney's fees and disbursements incurred by such prevailing
party in such action or proceeding and in any appeal in connection therewith. If such
prevailing party recovers a judgment in any such action, proceeding or appeal, all such
costs, expenses and attorneys' fees and disbursements incurred shall be included in and as
a part of such judgment. The prevailing party shall include without limitation a party who
dismisses an action or proceeding for recovery hereunder in exchange for consideration
substantially equal to the relief sought in the action or proceeding.
Project: SMART Transit
System
Property Owners:
City of Petaluma
SMART
APNs:
005-060-062
005-060-081
10.4 Notices. All notices or other communications required or permitted
hereunder shall be in writing and either delivered by hand (including by courier or
reputable overnight delivery service) or deposited in the United States mail first-class,
postage prepaid and addressed as follows:
To City: City of Petaluma, a California charter city
11 English Street
Petaluma, CA 94952
Attention: Public Works Director
To SMART: SONOMA-MARIN AREA RAIL TRANSIT DISTRICT
5401 Old Redwood Highway — 2°d Floor
Petaluma, CA 94954
Attention: Real Estate Manager
Notices which are delivered by hand shall be deemed received upon delivery; notices
which are deposited in the United States Mail in accordance with the terms of this Section
shall be deemed received three (3) days after the date of mailing. The foregoing addresses
may be changed by notice to the other party as herein provided.
10.5 Governing Law: Venue. This Agreement shall be governed by, and
construed in accordance with the laws of the State of California. In any suit, action, or
proceeding arising out of or related to this Agreement, or the documentation related hereto,
the parties hereby submit to the jurisdiction and venue of the Superior Court in and for the
County of Sonoma.
10.6 Captions. All captions and headings in this Agreement are for the purposes
of reference and convenience and shall not limit or expand the provisions of this
Agreement.
10.7 Time. Time is of the essence with respect to every provision herein
contained in this Agreement.
10.8 Counterparts. This agreement may be executed in counterparts, each of
which shall be an original, but all counterparts shall constitute one agreement.
10.9 Exhibits. All Exhibits and attaclmlents hereto are hereby incorporated
herein by reference thereto.
10.10 Construction. City and SMART acknowledge that each party has reviewed
and revised this Agreement and that the rule of construction to the effect that any
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Project: SMART Transit
System
Property Owners:
City of Petaluma
SMART
APNs:
005-060-062
005-060-081
ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any document executed and delivered by either party in
connection with the transactions contemplated by this Agreement. The captions in this
Agreement are for convenience of reference only and shall not be used to interpret this
Agreement.
10.11 Terms Generally. The defined terms in this Agreement shall apply equally
to both the singular and the plural forms of the terms defined. The words "include,"
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation." The words "approval," "consent' and "notice" shall be deemed to be preceded
by the word "written."
10.12 Further Assurances. From and after the date of this Agreement, City and
SMART agree to do such things, perform such acts, and make, execute, acknowledge and
deliver such documents as may be reasonably necessary or proper and usual to complete
the transactions contemplated by this Agreement and to carry out the purpose of this
Agreement in accordance with this Agreement.
10.13 Partial Invalidity. If any provision of this Agreement is determined by a
proper court to be invalid, illegal or unenforceable, such invalidity, illegality or
unenforceability shall not affect the other provisions of this Agreement and this Agreement
shall remain in full force and effect without such invalid, illegal or unenforceable
provision.
10.14 Waivers. No waiver of any provision of this Agreement or any breach of
this Agreement shall be effective unless such waiver is in writing and signed by the
waiving party and any such waiver shall not be deemed a waiver of any other provision of
this Agreement or any other or subsequent breach of this Agreement.
Project: SMART Transit
System
Property Owners:
City of Petaluma
SMART
APNs:
005-060-062
005-060-081
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, on the date(s)
set forth below, effective as of the day and year first above written.
CITY OF PETALUMA, a California charter city
By:
John C. Brown
City Manager
KW4181uiU MUN D
Eric Danly
City Attorney
Date:
Date:
SONOMA-MARIN AREA RAIL TRANSIT DISTRICT, a public agency
BY:
Farhad Mansourian
General Manager
RECOMMENDED BY:
Date:
James Flageollet
Special Counsel
EXHIBIT A
LEGAL DESCRIPTION OF FUTURE RAILWAY PROPERTY TO BE
ACQUIRED BY SMART
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Exhibit "A"
Legal Description
Lying within the City of Petaluma, County of Sonoma, State of California and being a
portion of Parcel One of the lands of City of Petaluma as described by Grant Deed
recorded under Document Number 1990-026493, Official Records of Sonoma County,
said portion being more particularly described as follows
Beginning at the southwest corner of said lands of City of Petaluma; thence along the
westerly line of said lands North 24°45'40" West 1008.91 feet; thence contimting alone
said westerly line, along a curve to the right with a radius of 353.20 Feet, through a
central angle of 24°11'33", Far an are length of 148.71 feet to a point of cusp; thence
South 29°08'38" East 398.94 feet; thence South 24°44'54" East 604.80 feet; thence
South 39°37'58" East 256.49 feet to the southerly line of said lands; thence along said
southerly line the following courses and distances:
thence. South 86°20'27" West 77.33 feet;
thence North 07°03'20" East 30.00 feet;
thence North 82°52'48" West 83.30 feet to the POINT OP BEGINNING.
END Of DESCRIPTION
Basis of Bearings: Record of Survey for the Sonoma—Marin Area Rail Transit District
filed for record in Book 741 of Maps, Pages I through 24, Sonoma County Records.
Containing 71,675 Square Peet or 1.65 Acres, more or less.
Being a portion of APN 005-060-062.
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OWNER NAME & ADDRESS SONOMA-MARIN AREA RAIL TRANSIT DISTRICT
CITY OF PETALUMA AREAS FEE SIMPLE ACQUISTION
11 ENGLISH STREET CITY OF PETALUMA
PETALUMA, CA 94952 71.675 S.F. TO
A.P. No, 005-060-062 ACQUISITION AREA: 1.65 ACRES S. M. A. R. T. D.
O.R. No. D.N. 1990-026493 Scale: 1"=150 Date: 8/6/'13
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OWNER NAME & ADDRESS SONOMA-MARIN AREA RAIL TRANSIT DISTRICT
CITY OF PETALUMA AREAS FEE SIMPLE ACQUISTION
11 ENGLISH STREET CITY OF PETALUMA
PETALUMA, CA 94952 71.675 S.F. TO
A.P. No, 005-060-062 ACQUISITION AREA: 1.65 ACRES S. M. A. R. T. D.
O.R. No. D.N. 1990-026493 Scale: 1"=150 Date: 8/6/'13
Project: SMART Transit
System
Property Owners:
City of Petaluma
SMART
APNs:
005-060-062
005-060-081
EXHIBIT B
QUITCLAIM DEED FOR FUTURE RAILWAY PROPERTY TO BE ACQUIRED
BY SMART WITH RESERVATION OF CITY EASEMENT
0
Recording requested by and when recorded return to:
Sonoma -Marin Area Rail Transit District
5401 Old Redwood Highway, 2'd Floor
Petaluma, CA 94954
Exempt from recording fees
Gov. Code §6103
SPACE ABOVE THIS
QUIT CLAIM DEED
This Quitclaim Deed (Quitclaim Deed), dated and effective as of , 2014, is by and
between the City of Petaluma, a California Charter City ("CITY") and Sonoma -Marin Area Rail Transit
District ("SMART").
RECITALS
WHEREAS, City is the owner of certain real property located in the City of Petaluma, County of
Sonoma, State of California bordered by the Petaluma River, the Petaluma Marina, Lakeville
Highway, and real property owned by SMART, described below, real property owned by the
Sonoma County Water Agency, and other property, and is identified by Sonoma County
Assessor's Parcel Number 005-060-062 (the "City Property"); and
WHEREAS, SMART is the owner of certain real property located in the County of Sonoma,
State of California, bordered by the Petaluma River, the City Property, Lakeville Highway, real
property owned by the Sonoma County Water Agency, and other property, and is identified by
Sonoma County Assessor's Parcel Number 005-060-081, (the "SMART Property"); and
WHEREAS, SMART desires to acquire fee title to a portion of the City Property, together with
all buildings, structures, improvements, landscaping, irrigation systems, machinery, fixtures and
equipment affixed or attached to the City Property to be acquired, and all easements and rights
appurtenant to the City Property (as more particularly in Exhibit A, which is attached to and
made a part of this Quitclaim Deed), and SMART desires to acquire such portion of the City
Property from City, on the terms and conditions set forth in the Agreement of Fee Acquisition,
Grant of Easement and Construction of Undererossing Improvements between the City and
SMART to facilitate relocation of SMART's railway and a bridge across the Petaluma River
supporting SMART's railway; and
WHEREAS, City agrees to convey its interest in the portion of the City Property described in
Exhibit A to SMART, subject to reservation of easements described below and in Exhibit B,
which is attached to and made a part of this Quitclaim Deed, as needed for planned construction
of a bicycle and pedestrian pathway, in accordance with the terms of the Agreement of Fee
Acquisition, Grant of Easement and Construction of Undercrossing Improvements between the
City and SMART;
�-Ip
WITNESSETH
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, City does hereby remise, release and forever quitclaim unto SMART any and all right,
claim, title, or interest City has in the real property described in Exhibit A, excepting therefrom springing,
non-exclusive public access, construction and drainage easements to, from time to time, construct,
reconstruct, inspect, maintain, replace, remove, access, and use facilities for a public pathway and
undercrossing facilities, underground conduits, pipes, drainage sumps, pumps and piping systems,
lighting and lighting conduits and related facilities ('Public Pathway Easements").
The general location, length, width and dimensions of the reserved Public Pathway Easements are as
described in Exhibit B. The final, precise location and dimensions of the Public Pathway Easements are
to be determined based on the final design for the undercrossing and public pathway improvements
pursuant to the Agreement of Fee Acquisition, Grant of Easement and Construction of Undercrossing
Improvements between the City and SMART.
City of Petaluma
By:
John C. Brown, City Manager
Approved as to form:
Eric W. Danly, City Attorney
Attest:
By:
Claire Cooper, City Clerk
0
Project: SMART Transit
System
Property Owners:
City of Petaluma
SMART
APNs:
005-060-062
005-060-081
EXHIBIT C
GRANT OF PATHWAY EASEMENT TO CITY FOR BICYCLE AND
PEDESTRIAN TRAIL ACROSS SMART PROPERTY
q;
Recording requested by and when recorded return to:
City Clerk
City of Petaluma
11 English Street
Petaluma, CA 94952
Exempt from recording fees
Gov. Code {6103
GRANT OF EASEMENT
This Grant of Easement ("Easement Grant") dated and effective as of 2014, is by and
between Sonoma -Marin Area Rail Transit District ("SMART") and the City of Petaluma, a California
Charter City ("CITY").
RECITALS
WHEREAS, City is the owner of certain real property located in the City of Petaluma, County of
Sonoma, State of California bordered by the Petaluma River, the Petaluma Marina, Lakeville
Highway, and real property owned by SMART, described below, real property owned by the
Sonoma County Water Agency, and other property, and is identified by Sonoma County
Assessor's Parcel Number 005-060-062 (the "City Property"); and
WHEREAS, SMART is the owner of certain real property located in the County of Sonoma,
State of California, bordered by the Petaluma River, the City Property, Lakeville Highway, real
property owned by the Sonoma County Water Agency, and other property, and is identified by
Sonoma County Assessor's Parcel Number 005-060-081, (the "SMART Property"); and
WHEREAS, SMART desires to acquire fee title to a portion of the City Property, together with
all buildings, structures, improvements, landscaping, irrigation systems, machinery, fixtures and
equipment affixed or attached to the City Property to be acquired, and all easements and rights
appurtenant to the City Property, and SMART desires to acquire such portion of the City
Property from City, on the terms and conditions set forth in the Agreement of Fee Acquisition,
Grant of Easement and Construction of Undercrossing Improvements between the City and
SMART to facilitate relocation of SMART's railway and a bridge across the Petaluma River
supporting SMART's railway; and
WHEREAS, the City Property and the SMART property and the portion of the City Property
sought by SMART are depicted on Exhibit A which is attached to and made a part of this
Easement Grant; and
WHEREAS, City has agreed to convey its interest in the portion of the City Property sought by
SMART, subject to reservation of easements as needed for planned construction of a bicycle and
pedestrian pathway ("Public Pathway Improvements"), in accordance with the terms of the
Agreement of Fee Acquisition, Grant of Easement and Construction of Undercrossing
Improvements between the City and SMART; and
WHEREAS, City's agreement to convey its interest in the portion of the City Property sought by
SMART is conditioned on, among other things, SMART granting to City easements across the
SMART Property as needed for construction, public use, and maintenance of the Public Pathway
Improvements;
WITNESSETH
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, SMART does hereby grant to City springing, non-exclusive public access, construction
and drainage easements appurtenant to the City Property to, from time to time, construct, reconstruct,
inspect, maintain, replace, remove, access, and use the Public Pathway Improvements facilities and
related facilities ("Public Pathway Easements") on the SMART Property.
The general location, length, width and dimensions of the Public Pathway Easements granted hereby are
as described in Exhibit A. The final, precise location and dimensions of the Public Pathway Easements
are to be determined based on the final design for the Public Pathway Improvements pursuant to the
Agreement of Fee Acquisition, Grant of Easement and Construction of Undercrossing Improvements
between the City and SMART.
City of Petaluma
By:
Farhad Mansourian, General Manager
Approved as to form:
Bv:
Tom Lyons, General Counsel
Attest:
By:
J�
Project: SMART Transit
System
Property Owners:
City of Petaluma
SMART
APNs:
005-060-062
005-060-081
EXHIBIT D
DIAGRAM AND SPECIFICATIONS FOR UNDERCROSSING IMPROVEMENTS
TO BE CONSTRUCTED BY SMART ON SMART PROPERTY AND PLANNED
LOCATION OF BICYCLE AND PEDESTRIAN TRAIL
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