HomeMy WebLinkAboutResolution 2011-004 N.C.S. 01/03/2011Resolution No. 2011 -004 N.C.S.
of the City of Petaluma, California
APPROVING RIGHT OF WAY CONTRACT BETWEEN REGENCY PETALUMA
LLC, THE CITY OF PETALUMA AND THE STATE OF CALIFORNIA, ACTING BY
AND THROUGH ITS DIRECTOR OF TRANSPORTATION
WHEREAS, on November 30, 2010, the Petaluma City Council approved Resolution
No. 2010 -209, approving a resolution of necessity and authorizing the filing of eminent domain
proceedings to acquire certain right of way from Regency Petaluma LLC for construction of the
U.S. 101 /East Washington Street Interchange Project (City Project Number RDA100208) (the
"Interchange Project "); and,
WHEREAS, as part of the Project, the City is required to acquire on behalf of Caltrans
certain rights of way for construction of the Project; and,
WHEREAS, this action involves funding for interchange improvements whose
environmental effects were previously reviewed in full in the Mitigated Negative Declaration,
U.S. Route 101 /East Washington Street Interchange, SCH #2007112073, for which a
CalTrans/NEPA Determination was made on March 10, 2008; and satisfaction of conditions
precedent to Regency's exercise of a pre- existing option for an easement to create the primary
access road to Regency's East Washington Place project, the environmental impacts of which
were reviewed in full in the Environmental Impact Report for East Washington Place, SCH
#2005052061, certified by the City Council on February 8, 2010. No changes have been made to
the interchange improvements or to the access road which would create new or substantially
greater environmental impacts, require modification of any mitigation measure or condition of
approval previously adopted, and no new or substantially greater environmental impacts are
created by the funding mechanisms contained in the Amendment No. 1 to Option Agreement
between the City of Petaluma and Regency Petaluma LLC and Resolution Approving Right of
Way Contract between Regency Petaluma LLC, the City of Petaluma and the State of California,
Acting by and through its Director of Transportation; and,
WHEREAS, Caltrans construction of the East Washington Interchange project requires
that the City provide possession and use of the Regency Petaluma LLC property necessary for
the interchange project right of way on or before June, 2011; and,
WHEREAS, California Eminent Domain Law procedures for obtaining possession of the
necessary right of way of the Regency Petaluma LLC on or before June, 2011, would require the
City to file an eminent domain action to acquire the Regency Petaluma LLC right of way on or
before January 14, 2011; and,
WHEREAS, proceeding other than by urgency ordinance would require the City to
undertake legal proceedings and the City and Regency to incur staff, legal and consultants' costs
and fees which would be unnecessary upon approval of a negotiated agreement, avoiding
unnecessary expenditures of significant amounts of taxpayer and private funds and judicial
resources; and,
Resolution No. 2011-004 N.C.S. Page 1
WHEREAS, Regency Petaluma LLC and the City of Petaluma wish to agree on terms
for the acquisition of the right of way.
NOW, THEREFORE, BE IT RESOLVED that the City Manager is authorized to
execute the Right of Way Contract between Regency Petaluma LLC, the City of Petaluma and
the State of California, acting by and through its Director of Transportation, which is attached as
Exhibit A hereto and incorporated herein by reference.
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 A yfo as t o
Council of the City of Petaluma at a Regular meeting on the 3` day of January,
2011, by the following vote:
ttorney
AYES: Albertson, Barrett, Mayor Glass, Harris, Vice Mayor Healy, Renee
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
�Z
City Clerk Mayor
Resolution No. 2011 -004 N.C.S. Page 2
EXHIBIT A TO
RESOLUTION 2011 -004 N.C.S. APPROVING RIGHT OF WAY CONTRACT
BETWEEN REGENCY PETALUMA LLC, THE CITY OF PETALUMA AND THE
STATE OF CALIFORNIA, ACTING BY AND THROUGH ITS DIRECTOR OF
TRANSPORTATION
RIGHT OF WAY CONTRACT
, California
,20 11
REGENCY PETALUMA, LLC,
A DELAWARE LIMITED LIABILITY
COMPANY
Grantor
Dist.
Co.
Rte.
P.M.
Ex p. Auth.
04
SON
101
4.8
264000
State of California
Department of Transportation
District 4 — Right of Way
111 Grand Avenue, MS 11
Oakland, California 94612
This Right of Way Contract ( "Contract ") in consideration for the attached Document No. 60296-
1, for a GRANT DEED; Document No. 69296 -2, for a TEMPORARY CONSTRUCTION
EASEMENT ( "TCE "); and Document No. 60296 -3, for a UTILITY EASEMENT; and the
property and property interests described therein, a copy of which is attached as Exhibits "A "
`B -1", 4 B -2 ", "C -1" and "C -2" to this Contract, located at 840 — 980 East Washington Street,
Assessor's Parcel Numbers 007 - 031 -001; 007 - 473 -040; 007 - 251 -001; and, 007 - 241 -002,
commonly known to the State of California, Department of Transportation, as Parcel Nos.
60296 -1, 60296 -2, and 60296 -3, in Petaluma, California and has been executed and delivered to
Steven L. Castellano, Right of Way Consultant in the name of the State of California,
Department of Transportation for the East Washington Street — Highway 101 Interchange
Improvements Project ( "Project "), a City of Petaluma sponsored Project.
The parties, Regency Petaluma, LLC, a Delaware Limited Liability Company ( "Grantor "), and
the City of Petaluma ( "City ") and the State of California, acting by and through its Director of
Transportation ( "Grantee "), collectively "the parties," mutually agree as follows:
1. (A) The performance of this Contract along with simultaneous execution of that
certain First Amendment to Option Agreement between Regency Petaluma LLC
and the City of Petaluma by the City and Grantor, which is incorporated herein by
this reference as though fully set forth herein, constitutes the entire consideration
for the acquisition of real property and real property interests and shall relieve
City and Grantee of all further obligation or claims arising from or relating to the
acquisition of these property interests, or on account of the location, grade or
construction of the proposed public improvement.
Resolution No. 2011 -004 N.C.S. Page 3
(B) Grantee requires said property and property interests described in Document No.
60296 -1, 60296 -2, and 60296 -3 for State highway purposes, a public use for
which Grantee and /or City have the authority to exercise the power of eminent.
domain.
The parties recognize the expense, time, effort, and risk in determining the
compensation for the property by eminent domain litigation. The compensation
set forth herein for the property is in compromise, settlement, and in lieu of such
litigation.
2. The City shall:
(A) Accept delivery of property or interest conveyed by above document(s) and
record same when title can be vested in the State of California, Department of
Transportation free and clear of all liens, encumbrances, assessments, easements
and leases (recorded and /or unrecorded), and taxes, except:
a. Taxes for the tax year in which this escrow closes shall be cleared and paid in
the manner required by Section 5086 of the Revenue and Taxation Code, if
unpaid at the close of escrow.
b. Covenants, conditions, restrictions and reservations of record, or contained in
the above referenced document.
c. Easements or rights of way over said land for public or quasi- public utility or
public street purposes, if any.
(B) Pay all escrow and recording fees incurred in this transaction, and if title insurance is
desired by the Grantee, the premium charged therefore. Said escrow and recording
charges shall not, however, include documentary transfer tax.
It is agreed that the property interests conveyed by Documents No. 60296 -1, 60296 -2,
and 60296 -3 are being transferred to the Grantee by the undersigned Grantor(s) in
exchange for the consideration stated in paragraph 1(A) hereof, and that Grantor, having
initiated this transfer has /have been informed of the right to compensation, and hereby
waive(s) such right to compensation other than the consideration stated herein.
4. Any monies necessary, if any, to satisfy any bond demands and/or delinquent taxes due in
any year except the year in which this escrow closes, together with penalties and interest
thereon and /or delinquent and unpaid nondelinquent assessments which have become a
lien as of the close of escrow shall be paid by Grantor before the close of escrow.
Any money necessary, up to and including the total amount of unpaid principal and
interest on any notes secured by a mortgage or deed of trust, if any, and all other amounts
due and payable in accordance with the terms and conditions of said trust deeds or
mortgages, shall, upon demand, be made payable to the entitled mortgagee and /or
beneficiary; said mortgagee or beneficiary to furnish Grantor with good and sufficient
receipt showing said moneys credited against the indebtedness secured by said mortgage
or deed of trust.
6. It is agreed and confirmed by the parties that notwithstanding other provisions in this
contract, the right of possession and use of the subject property by the Grantee, including
the right to remove and dispose of improvements shall commence on January 15, 2011 or
Resolution No. 2011 -004 N.C.S. Page 4
the close of escrow, whichever occurs first, and that the Purchase Price includes, but is
not limited to, full payment for such possession and use from said date.
7. Grantor hereby grants Grantee or its authorized agents permission to enter, possess, and
use Grantor's land, where necessary within the "Temporary Construction Easement Area"
as described in Exhibit "B -1" and shown as the certain area labeled 60296 -2 and shown
on the map attached hereto as Exhibit "13-2," for the lawful and permitted construction
activities such as, but not limited to, construction, staging, and storage of and for the
Project, together with the right of ingress and egress and any works necessary or
appurtenant thereto, over, through, under and across the real property set forth in Exhibits
"B -1 " and "13-2," hereto.
8. The TCE will be used for a temporary exclusive easement and right of way for the
purpose of moving and /or maneuvering construction equipment and vehicles, the
temporary storage of equipment and materials necessary for the construction of the
Project, and appurtenant facilities, together with the equipment used in earthwork, the
temporary spoil of excavated material during the period of construction of said facilities
and other operations necessary over, through, and across that portion of 60296 -2, as set
forth in Exhibits "B -1" and "B -2" attached hereto.
9. The above TCE area is to be used for temporary construction for a period of 12 months
commencing with the first entry on Grantor's property by Grantee's contractor. At least
48 (forty- eight) hours advance written notice will be given before entry on said parcel. It
is further understood that in no event shall the temporary rights granted herein extend
beyond the completion of the construction project or December 1, 2013, whichever is
earlier, except as provided below.
10. Grantor agrees that in case of unpredictable delays in construction, upon written
notification, the terms of the temporary construction easement may be extended for up to
twenty -four (24) months from the initial expiration date of the easement at the option of
the Grantee upon written notice thereof at least thirty (30) days in advance.
11. Grantee agrees, upon completion of the Project, it will restore the TCE area described in
Exhibit "B -1" and depicted In Exhibit "13-2," attached hereto to its original condition as
is practicable.
12. All work done under this Contract shall conform to all applicable building, fire and
sanitary laws, ordinances, and regulations relating to such work, and shall be done in a
good and workmanlike manner. All structures, improvements or other facilities, when
removed, and relocated, or reconstructed by the Grantee, shall be returned in as good
condition as found.
13. Grantee agrees to indemnify and hold harmless Grantor, its officers, agents, and
employees, from any and all liability which may be suffered or incurred by Grantor, its
officers, agents, and employees caused by, arising out of, or in any way connected with
the use, or the exercise of the rights and privileges granted herein, except claims arising
out of intentional or negligent acts of Grantor. Grantee further agrees to assume
responsibility for any damages proximately caused by reason of Grantee's operations and
Project within the TCE area and the Grantee will, at its option, either repair or pay for
such damage.
Resolution No. 2011 -004 N.C.S. Page 5
14. Grantor warrants that there are no oral or written leases on all or any portion of the
property exceeding a period of one month, and the Grantor agrees to hold City and
Grantee harmless and reimburse the City and Grantee for any and all of its losses and
expenses occasioned by reason of any lease of said property held by any tenant of
Grantor for a period exceeding one month.
15. The Grantor hereby represents and warrants that during the period of Grantor's
ownership of the property, there have been no disposals, releases or threatened releases of
hazardous substances or hazardous waste on, from, or under the property. Grantor
further represents and warrants that the Grantor has no knowledge of any disposal,
release, or threatened release of hazardous substances or hazardous waste on, from, or
under the property which may have occurred prior to Grantor taking title to the property.
If the property being acquired is found to be contaminated by the presence of hazardous
waste which requires mitigation under Federal or State law, the Grantee may elect to seek
recovery of its clean -up costs from those who caused or contributed to the contamination.
16. With respect to this Contract, any or all of the rights or obligations of the Grantee may be
transferred, either in whole or in part, to the City and /or to any private, public or
governmental association, agency or entity, whether now existing or created after
execution of this Contract.
17. This transaction will be handled through an escrow with North American Title Company
4255 Hopyard Road, Suite 1, Pleasanton, CA 94588 No. 56901 - 57990117.
No Obligation Other Than Those Set Forth Herein Will Be Recognized.
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Resolution No. 2011-004 N.C.S. Page 6
In Witness Whereof, the Parties have executed this Contract.
GRANTOR: REGENCY PETALUMA, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By:
(NAME)
(TITLE)
IM
(NAME)
(TITLE)
RECOMMENDED FOR APPROVAL:
Associated Right of Way
Services, Inc.
City of Petaluma
By
STEVEN L. CASTELLANO, SR/WA
Right of Way Consultant
itz
WILLIAM S. TANNENBAUM, SR/WA
Supervisor
1565118.3
By
VINCENT MARENGO
Director of Public Works
Approved to Form
By
ERIC W. DANLY
City Attorney
State of California
Department of Transportation
By
MARK WEAVER
District Office Chief, District 4
Right of Way Acquisition and Utility
Services
By
R. A. MACPHERSON
Deputy District Director, District 4
Right of Way
Resolution No. 2011 -004 N.C.S. Page 7