HomeMy WebLinkAboutOrdinance 2394 N.C.S. 01/03/2011EFFECTIVE DATE ORDINANCE NO. 2394 N.C.S
OF ORDINANCE
January 3, 2011
Introduced by Seconded by
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PETALUMA APPROVING
AMENDMENT NO. 1 TO OPTION AGREEMENT BETWEEN THE
CITY OF PETALUMA AND REGENCY PETALUMA LLC
WHEREAS, on May 17, 2004, the Petaluma City Council adopted Ordinance No. 2181,
authorizing execution of an Option Agreement with Regency Petaluma LLC ( "Regency ") for a
nonexclusive vehicular and pedestrian access easement ( "Option Agreement "), and
authorizing execution of an easement agreement upon satisfaction of all required conditions,
including Regency's acquisition of all entitlements necessary for the development of the
Kenilworth School Site; and,
17 WHEREAS, on June 17, 2004, the City executed the Option Agreement; and,
18 WHEREAS, on February 8, 2010, the Petaluma City Council approved land use
19 entitlements for the East Washington Place project proposed by Regency and located on the
20 former Kenilworth School Site (the "Project "); and,
21 WHEREAS, on April 13, 2010, the Petaluma Planning Commission approved site design
22 and architectural review for the Project; and,
23 WHEREAS, on June 14, 2010, the Petaluma City Council heard an appeal challenging the
24 Project's site design and architectural review approval and denied said appeal; and,
25 WHEREAS, as part of the U.S. 101 /East Washington Street Interchange Project (City Project
26 Number RDA] 00208) (the "Interchange Project ") previously approved by the City, the City is
27 required to obtain on behalf of Caltrans certain rights of way necessary for construction of
28 improved Highway 101 interchange ramps at East Washington Street; and,
29 WHEREAS, a portion of the required right of way is owned by Regency Petaluma LLC and
30 as part of pre- condemnation proceedings by the City, has been appraised by the City at
31 $474,554; and,
32 WHEREAS, on November 30, 2010, the Petaluma City Council approved Resolution No.
33 2010 -209, approving a resolution of necessity and authorizing the filing of eminent domain
34 proceedings to acquire the right of way from Regency Petaluma LLC; and,
35 WHEREAS, Section 4 of the Option Agreement states that the Regency shall pay to the
36 City fair market value of the access easement and a partial leasehold interest in the Payran Fire
Ordinance No. 2394 N.C.S. Page 1
1 Station, as identified in the Option Agreement unless a project at the East Washington Place is
2 approved which "includes at least 300,000 square feet of retail space in a mixed -use
3 development that includes housing "; and,
4 WHEREAS, the approved Project does not consist of a "mixed -use development that
5 includes housing" because housing was removed from the Project in the course of the review
6 process for the Project; and,
7 WHEREAS, Regency and the City have tentatively agreed that Regency will provide the
8 required Interchange Project right of way owned by Regency as full compensation and
9 satisfaction of any payment obligations Regency may have under Section 4 of the Option
10 Agreement for the easement and leasehold interest identified in the Option Agreement; and,
11 WHEREAS, Caltrans construction of the East Washington Interchange project requires that
12 the City provide possession and use of the Regency Petaluma LLC property necessary for the
13 interchange project right of way on or before June, 2011; and,
14 WHEREAS, California Eminent Domain Law procedures for obtaining possession of the
15 necessary right of way of the Regency Petaluma LLC on or before June, 2011, would require the
16 City to file an eminent domain action to acquire the Regency Petaluma LLC right of way on or
17 before January 14, 2011; 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,
33 WHEREAS, proceeding other than by urgency ordinance would require the City to
34 undertake legal proceedings and the City and Regency to incur staff, legal and consultants'
35 costs and fees which would be unnecessary upon approval of a negotiated agreement,
36 avoiding unnecessary expenditures of significant amounts of taxpayer and private funds and
37 judicial resources; and,
38 WHEREAS, the City Council of the City of Petaluma therefore finds that the immediate
39 preservation of the public peace, health, and safety requires and is served by proceeding with
40 the acquisition of right of way from Regency Petaluma LLC for the East Washington Interchange
41 project in a manner that avoids unnecessary legal proceedings, does not cause the City and /or
42 the Petaluma Community Development Commission (PCDC) and /or Regency Petaluma, LLC to
43 incur unnecessary expenditure of funds at a time when the City is facing severe budget
44 shortages, and Regency Petaluma LLC has incurred and is still incurring significant costs to
45 develop the Regency Project and that avoids wasteful expenditures and unnecessary use of
46 judicial and court resources; and,
Ordinance No. 2394 N.C.S. Page 2
1 WHEREAS, Article XII, Section 76A of the Petaluma Charter provides that an urgency
2 ordinance may be adopted and take immediate effect upon the unanimous vote of the
3 Council members present at the meeting.
4 NOW, THEREFORE, THE COUNCIL OF THE CITY OF PETALUMA ORDAINS AS FOLLOWS:
5 SECTION 1. The City Manager is hereby authorized to execute the Amendment No. 1 to
6 Option Agreement attached hereto as Exhibit A and incorporated herein by reference.
7 SECTION 2. Severability. The provisions of this Ordinance are severable and if any
8 provision, clause, sentence, word or part thereof is held illegal, invalid, unconstitutional,
9 or inapplicable to any person or circumstances, such illegality, invalidity,
10 unconstitutionality, or inapplicability shall not affect or impair any of the remaining
11 provisions, clauses, sentences, sections, words or parts thereof of this Ordinance or their
12 applicability to other persons or circumstances.
13 SECTION 3 Effective Date. This Ordinance of the City of Petaluma shall be immediately
14 effective upon a unanimous vote of the Council members present in accordance with
15 Article XII, Section 76 -A of the Petaluma Charter.
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SECTION 4. Publication. The City Clerk is hereby directed to post and /or publish this
ordinance or a synopsis of this ordinance for the period and in the manner required by
the City Charter.
INTRODUCED, ADOPTED, and ORDERED POSTED /PUBLISHED this 3rd day of January, 2011
Ayes: Albertson, Barrett, Mayor Glass, Harris, Vice Mayor Healy, Renee
Noes: None
Abstain: None
Absent: None
Mayor
ATTEST: APPROVED AS TO FORM:
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40 City Clerk
Ordinance No. 2394 N.C.S. Page 3
1
2 EXHIBIT A to
3 Urgency Ordinance of the City Council of the City of Petaluma
4 Approving Amendment No.1 to Option Agreement
5
6 AMENDMENT NO.1 TO
7 OPTION AGREEMENT
8
9 This AMENDMENT NO.1 TO OPTION AGREEMENT ( "Amendment ") dated as of
10 January J 2011 ( "Effective Date "), is entered into by and between the CITY OF
11 PETALUMA, a charter city duly organized under the laws of the State of California (the
12 "City "), and REGENCY PETALUMA LLC, a Delaware limited liability company
13 ( "Regency "). City and Regency are sometimes referred to hereafter collectively as the
14 "Parties".
15 RECITALS
16 A. This Amendment ( "Amendment ") relates to the Option Agreement dated as of
17 June 17, 2004, between the City and Regency (the "Option Agreement ").
18 B. City and Regency wish to amend the Option Agreement as set forth in this
19 Amendment.
20 AGREEMENT
21 NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
22 contained, the parties hereto covenant and agree as follows:
23 1. Definitions Capitalized terms used but not defined in this Amendment have the
24 meaning given to them in the Option Agreement.
25 2. Effective Date of this Amendment This Amendment shall be effective, and its
26 terms in full force and effect, from and after the Effective Date of this Amendment.
27 4. Amendments to the Option Agreement
28 (a) Section 4, "Consideration," of the Option Agreement is amended in its
29 entirety to read as follows:
30 Section 4. Consideration
31 The parties acknowledge and agree that execution and delivery by
32 Regency to the City of that certain Right of Way Contract between
33 Regency, the City and the State of California, acting by and through its
34 Director of Transportation attached to this Option Agreement as Exhibit F
Ordinance No. 2394 N.C.S. Page 4
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and incorporated herein by reference ( "ROW Contract ") constitutes full
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settlement and satisfaction of any payment obligations of Regency
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previously set forth in Section 4 of this Option Agreement. The execution
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and delivery by Regency to the City of the ROW Contract and compliance
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by Regency with all terms and conditions of the ROW Contract, including
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but not limited to delivery of all deeds, documents and other materials
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specified therein as necessary to transfer the property interests described
8
therein to Caltrans shall serve as the full and entire consideration for the
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Easement and shall constitute full compliance, satisfaction and discharge
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of any payment obligations of Regency pursuant to Paragraph 4 of the
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Option Agreement.
12 5. The ROW Contract is attached to this Amendment as Exhibit A and incorporated
13 herein by reference.
14 6. Conditions For this Amendment to become effective in accordance with its
15 terms:
16 (a) On or before January 17, 2011, the City must receive a copy of this
17 Amendment executed by Regency together with evidence of the execution and delivery
18 by Regency of the ROW Contract;
19 (b) Regency represents and warrants that the part(ies) executing this
20 Amendment and the ROW Contract on Regency's behalf have been duly authorized to
21 execute the Amendment and ROW Contract;
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(c) Execution of this Amendment by a City official authorized to do so in
accordance with the City of Petaluma Charter and applicable law.
7. Recordation A copy of this Amendment shall be recorded in the Official
Records of Sonoma County. Reference is made to that certain Memorandum of Option
dated as of June 17, 2004 made by and between the City and Regency and recorded as
Document No. 2006 - 053243, Official Records of Sonoma County.
8. Effect of Amendment Except as provided in this Amendment, all of the terms
and conditions of the Option Agreement remain in full force and effect.
9. Counterparts This Amendment may be executed in counterparts, each of which
when so executed must be deemed an original, but all such counterparts together will
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first above written.
Ordinance No. 2394 N.C.S. Page 5
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CITY OF PETALUMA
Bv:
Name: John Brown
Title: City Manager
[Attach Notarial Acknowledgement]
ATTEST:
City Clerk
APPROVED AS TO FORM:
Eric W. Danly
City Attorney
APPROVED:
Risk Manager
APPROVED:
Finance Director
REGENCY PETALUMA LLC
By:
Name:
Title:
By:
Name:
Title:
[Attach Notarial Acknowledgment]
Ordinance No. 2394 N.C.S.
Page 6
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!I1;
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EXHIBIT A to
AMENDMENT NO.1 TO
OPTION AGREEMENT
RIGHT OF WAY CONTRACT
Ordinance No. 2394 N.C.S.
Page 7