HomeMy WebLinkAboutOrdinance 2618 N.C.S. 07/03/20171
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EFFECTIVE DATE
OF ORDINANCE
August 3, 2017
Introduced by
Kathy Miller
ORDINANCE NO. 2618 N.C.S.
Seconded by
Mike Healy
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PETALUMA APPROVING:
6T" MODIFICATION OF DECLARATION OF EASEMENTS, COVENANTS, AND
RESTRICTIONS AND RECIPROCAL EASEMENTS FOR PETALUMA MARINA
PROJECT; CONTRIBUTION AGREEMENT (INCLUDING QUITCLAIM
TRANSFERRING TO THE PETALUMA MARINA OWNERS ASSOCIATION TITLE
TO LOT 6 OF PARCEL MAP NO. 247 FILED FEBRUARY 29, 1990 IN BOOK
454 OF MAPS, PAGES 9 AND 10, SONOMA COUNTY RECORDS);
AND AMENDMENT TERMINATING SUBDIVIDED GROUND LEASE
TO LOT 6 DATED AND RECORDED SEPTEMBER 11, 1990
18 WHEREAS, the City is fee title owner of that certain real property containing
19 approximately 2.39 acres located in the City of Petaluma, County of Sonoma, State of
20 California, designated Lot 6, as shown on Parcel Map No. 247 filed February 27, 1990 in Book 454
21 of Maps, Pages 9 and 10, Sonoma County Records, (the "Subject Property "); and
22 WHEREAS, on or about July 16, 1984, the City and the Petaluma Marina Owners
23 Association's predecessor -in- interest, Marina Office Park Association, a California limited
24 partnership ( "MOPA "), entered into that certain Agreement Concerning Development for the
25 development of a marina on certain real property adjacent to the Subject Property by the City
26 and the development by MOPA of a commercial project on the Subject Property and Lots 1, 2,
27 3, 4 and 5 as shown on Parcel Map No. 247 filed February 27, 1990 in Book 454 of Maps, Pages 9
28 and 10, Sonoma County Records (the "Commercial Project "), together with a parcel referred to
29 as the "Apartment Parcel." The Commercial Project and the Apartment Parcel are referred to
30 collectively herein as the "Remaining Project;" and
31 WHEREAS, pursuant to terms of the Agreement Concerning Development, the City and
32 MOPA entered into that certain Ground Lease dated October 3, 1985 concerning the Subject
33 Property and the Remaining Project and recorded on that date in the Official Records of
34 Sonoma County as Document No. 85065899; and
35 WHEREAS, pursuant to the Ground Lease, the City and MOPA have entered into that
36 certain Subdivided Ground Lease - Lot 6 (the "Lease ") covering the Subject Property dated
37 September 11, 1990 and recorded on September 12, 1990 in the Official Records of Sonoma
38 County as Document No. 1990- 0090885, and that certain Declaration of Easements, Covenants
39 and Restrictions and Reciprocal Easements for the Petaluma Marina Project, covering the
40 Subject Property and the Remaining Project dated as of dated September 14, 1990 and
41 recorded September 14, 1990 in the Official Records of Sonoma County as Document No. 1990-
Ordinance No. 2618 N.C.S. Page 1
1 0091972, as amended by that certain Agreement Reforming Property Descriptions of Recorded
2 Documents, dated January 16, 1991 and recorded January 29, 1991 in the Official Records as
3 Document No. 1991-0007524, that certain Modification of Declaration of Easements, Covenants
4 and Restrictions and Reciprocal Easements for Petaluma Marina Project, dated November 11,
5 1992 and recorded on April 9, 1993 in the Official Records as Document No. 1993- 0044988, that
6 certain Second Modification of Declaration of Easements, Covenants and Restrictions and
7 Reciprocal Easements for Petaluma Marina Project dated May 1, 2000 and recorded on July 21,
8 2000 in the Official Records as Document No. 2000072696, that certain Third Modification of
9 Declaration of Easements, Covenants and Restrictions and Reciprocal Easements for Petaluma
10 Marina Project dated December 29, 2004, that certain erroneously titled Third Modification of
11 Declaration of Easements, Covenants Restrictions and Reciprocal Easements for Petaluma
12 Marina Project dated December 14, 2007 and recorded on December 19, 2007 in the Official
13 Records as Document No. 2007133051, and that certain erroneously titled Fourth Modification of
14 Declaration of Easements, Covenants and Restrictions and Reciprocal Easements for Petaluma
15 Marina Project dated March 31, 2011 and recorded on July 15, 2011 in the Official Records as
16 Document No. 2011059815 (as so amended, "CC &Rs "); and
17 WHEREAS, the Petaluma Marina Owners Association ( "Association ") has succeeded to
18 MOPA's interest in the Lease; and
19 WHEREAS, the parties to the CC &Rs acknowledge and agree that the fair market value
20 of the Subject Property as burdened by the CC &Rs and the permitted uses under presently
21 existing land use restrictions and the terms of the agreements governing use of the Subject
22 Property is minimal; and
23 WHEREAS, City is a member of the Association, and the City, through the CC &Rs and the
24 bylaws of the Association, has maintained significant control over the operation of the
25 Association and, after the Association's acquisition of the Subject Property, shall retain significant
26 control over the management and use of the Subject Property; and
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28 WHEREAS, in order to facilitate the development of the Subject Property in the manner
29 originally contemplated by the Agreement Concerning Development, Ground Lease and the
30 Lease, and to facilitate the development of the Apartment Parcel in accordance with
31 previously issued City approvals, the Association wishes to acquire the Subject Property from the
32 City and the City wishes to contribute the Subject Property to the Association on the terms and
33 conditions set forth in a proposed Sixth Modification of Declaration of Easements, Covenants
34 and Restrictions and Reciprocal Easements for Petaluma Marina Project (the "Sixth
35 Amendment "), which Sixth Amendment is attached to and made a part of this ordinance as
36 EXHIBIT A; and
37
38 WHEREAS, to accomplish transfer of ownership of the Subject Parcel in accordance with
39 the Sixth Amendment, in addition to the Sixth Amendment, the following documents have been
40 prepared: a contribution agreement ( "Contribution Agreement "), which is attached to and
41 made a part of this ordinance as EXHIBIT B, and an amendment terminating the Lease
42 ( "Amendment "), which is attached to and made a part of this ordinance as EXHIBIT C; and
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44 WHEREAS, Section 46 of the Charter of the City of Petaluma requires that specified
45 actions for the acquisition, sale, or lease of real property be taken by Ordinance; and,
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47 WHEREAS, the City Council finds this action qualifies for exemption under the California
48 Environmental Quality Act (CEQA) pursuant to Title 14, Chapter 3 of the California Code of
49 Regulations (CEQA Guidelines), sections 15061, 15301 involving purchase, sale, and /or lease of
50 existing facilities;
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Ordinance No. 2618 N.C.S. Page 2
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NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS
FOLLOWS:
Section 1: The City Council approves:
a. The Sixth Modification of Declaration of Easements, Covenants and Restrictions and
Reciprocal Easements for Petaluma Marina Project (EXHIBIT A);
b. The Contribution Agreement, including quitclaim transferring to the Petaluma Marina
Owners Association Title to Lot 6 of Parcel Map No. 247 Filed February 29, 2990 in Book
454 of Maps, Pages 9 and 10, Sonoma County Records (EXHIBIT B); and
c. The Amendment terminating the Subdivided Ground Lease to Lot 6 (EXHIBIT C).
Section 2: On behalf of the City, the City Manager is authorized and directed to
execute documents substantially in accordance with Exhibits A, B and C, as determined by the
City Attorney, and all other documents reasonably necessary to complete the transfer of the
Subject Property, subject to consultation with City legal counsel for matters involving
redevelopment dissolution law regarding potential requirements for the property transfer under
that law, and payment by Basin Street Properties, one of the parties making up the Association,
and developer of the Marina Apartments project, of 1/2 of the cost of the staff time expended by
the City Attorney's Office in researching and developing the documents approved pursuant to
the Ordinance.
Section 3: If any section, subsection, sentence, clause, phrase or work of this
Ordinance is for any reason held to be unconstitutional, unlawful or otherwise invalid by a court
of competent jurisdiction or preempted by State legislation, such decision or legislation shall not
affect the validity of the remaining portions of this Ordinance. The City Council of the City of
Petaluma hereby declares that it would have passed and adopted this Ordinance and each
and all provisions thereof irrespective of the fact that any one or more of said provisions be
declared unconstitutional, unlawful other otherwise invalid.
Section 4: This Ordinance shall become effective thirty (30) days after the date of its
adoption by the Petaluma City Council.
Section 5: The City Clerk is hereby directed to publish or post this Ordinance or a
synopsis for the period and in the manner provided by the City Charter and any other
applicable law.
INTRODUCED and ordered posted /published this 191h day of June, 2017.
ADOPTED this 3rd day of July, 2017 by the following vote:
Ayes: Albertson, Healy, Kearney, King, Miller
Noes: Vice Mayor Barrett, Mayor Glass
Abstain: None
Absent: None
David Glass, Mayor
Ordinance No. 2618 N.C.S.
Page 3
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ATTEST:
APPROVED -AS TO, FORM:
�4
Claire Cooper, CMC, City Clerk Eric W. Danly, qity Attorney
Ordinance No. 2618 N.C.S.
Page 4
RECORDING REQUESTED BY
AND WIIEN RECORDED MAIL
TO:
Basin Street Properties
1383 N. McDowell Blvd.
Suite 150
Petaluma, CA 94954
Attn: Jennifer Tompkins
Exhibit A to Ordinance
THE AREA ABOVE IS RESERVED FOR RECORDER'S USE
SIXTH MODIFICATION OF
DECLARATION OF EASEMENTS, COVENANTS AND RESTRICTIONS, AND
RECIPROCAL EASEMENTS FOR PETALUMA MARINA PROJECT
This Sixth Modification of Declaration of Easements, Covenants and Restrictions, and
Reciprocal Easements for Petaluma Marina Project (the "Sixth Modification ") is made as of this
day of , 2017, by and among the City of Petaluma, a public body corporate and
politic (the "City "), Petaluma Marina Investors LLC, a Delaware limited liability company ( "Hotel
Owner "), Petaluma Marina Office Investors LLC, a California limited liability company ( "Office
Owner "), and Petaluma Marina Owners' Association, a California non - profit mutual benefit
corporation (the "Association ").
THE PARTIES ENTER INTO THIS SIXTH MODIFICATION based upon the
following facts, understandings and intentions:
A. The parties (or their predecessors in interest) have entered into that certain Declaration
of Easements, Covenants and Restrictions, and Reciprocal Easements for Petaluma Marina Project
dated September 14, 1990 and recorded September 14, 1990 in the Official Records of Sonoma
County ( "Official Records ") as Document No. 1990 - 0091972 (the "Original Declaration "), as
amended by that certain Agreement Reforming Property Descriptions of Recorded Documents,
dated January 16, 1991 and recorded January 29, 1991 in the Official Records as Document No.
1991 - 0007524, that certain Modification of Declaration of Easements, Covenants and Restrictions
and Reciprocal Easements for Petaluma Marina Project, dated November 11, 1992 and recorded on
April 9, 1993 in the Official Records as Document No. 1993- 0044988, that certain Second
Modification of Declaration of Easements, Covenants and Restrictions and Reciprocal Easements
for Petaluma Marina Project dated May 1, 2000 and recorded on July 21, 2000 in the Official
Records as Document No. 2000072696 (the "Second Amendment "), that certain Third
Modification of Declaration of Easements, Covenants and Restrictions and Reciprocal Easements
for Petaluma Marina Project dated December 29, 2004 and recorded on , (the "Third
Amendment "), that certain erroneously titled Third Modification of Declaration of Easements,
Covenants Restrictions and Reciprocal Easements for Petaluma Marina Project dated December 14,
2007 and recorded on December 19, 2007 in the Official Records as Document No. 2007133051,
(the "Fourth Amendment "), and that certain erroneously titled Fourth Modification of Declaration
of Easements, Covenants and Restrictions and Reciprocal Easements for Petaluma Marina Project
Ordinance No. 2618 N.C.S. Page 5
dated March 31, 2011 and recorded on July 15, 2011 in the Official Records as Document No.
2011059815 ( "Fifth Amendment ") (as so amended, the "Declaration "). The capitalized terms
used in this Sixth Modification and not otherwise defined herein shall have the same meanings
given to such terms in the Declaration.
B. The Declaration covers certain real properties located in the City of Petaluma, County of
Sonoma, State of California. Said real properties or interests therein are referred to and more
particularly described in the Declaration as the "Marina ", the ` Baywood Property" and the
"Commercial Project ". Portions of the Commercial Project constitute portions of Parcel Map 247
filed in the Official Records on February 27, 1990 in Book 454 of Maps, pages 9 and 10. The
Baywood Parcel is more particularly described as Lot 4 of Parcel Map No. 271 filed in the Official
Records on October 28, 1992 in Book 501 of Maps, pages 11, 12 and 13.
C. The parties now desire to amend the Declaration as provided herein.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of
the parties, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
1. Redesignation of Parking Areas. The parties acknowledge that the development of the
Commercial Project is now complete, with the exception of (i) a 90 -unit apartment complex (the
"Apartment Project ") to be constructed on the parcel depicted on Exhibit A (the "Apartment
Parcel ") owned by Office Owner, and (ii) the possible future addition of up to ten (10) hotel rooms
in the 184 -room hotel previously constructed on Lot 4 owned by Hotel Owner. The "Parking Area"
as set forth in the Declaration now contains eight hundred and sixty -four (864) parking stalls.
Notwithstanding anything to the contrary in the Declaration, usage of the Parking Area shall be
allocated among the parties as follows:
(a) Dedicated Marina Parkin. Twenty (20) parking stalls on Lot 6, as shown
on Exhibit B, shall be reserved exclusively for public parking of vehicles /boat trailers for
patrons of the Petaluma Marina.
(b) Dedicated Apartment Project Parkin. Ninety (90) carport parking stalls,
as shown on Exhibit C, shall be reserved exclusively for residents of the Apartment Project.
Such carport parking stalls may, at the election of the owner of the Apartment Parcel, be
covered with solar panels to be installed by the owner of the Apartment Parcel at its sole
cost and expense.
(c) Shared Parkin. The remaining seven hundred fifty -four (754) parking
stalls (the "Shared Parking Stalls ") shall be unreserved and shared by the parties to this Fifth
Amendment, with each parcel allocated the following minimum number of Shared Parking
Stalls:
Parcel Parkin Stalls
talls
Lot 1: 113
Lot 2: 123
Ordinance No. 2618 N.C.S. Page 6
Lot 3: 153
Lot 4: 196
Marina: 98
Apartment Parcel: 45
Unallocated:
Total: 754
2. Lot 6 Transfer; Lot Line Adjustment. The Association and the City agree that the
City shall transfer fee title to Lot 6 to the Association promptly following the mutual execution and
delivery of this Amendment, as contemplated in Section 6.6 of the Original Declaration. The
Association and the City waive any prohibition in Section 6.1 of the Original Declaration regarding
such transfer of Lot 6 prior to September 13, 2017. In consideration for such waiver, Office Owner
agrees to pay the City the ground lease rent that would have been earned under that certain
Subdivided Ground Lease between the City and the Association's predecessor -in- interest, Marina
Office Park Associates, a California limited partnership, dated September 11, 1990 and recorded in
the Official Records on September 12, 1990 as Instrument No. 1990- 0090885 from the date that fee
title to Lot 6 is transferred to the Association through September 13, 2017. Following the transfer
of fee title to Lot 6 to the Association and upon the written request of Office Owner, the Association
shall convey fee title to Office Owner, by means of a lot line adjustment, the land depicted with
cross - hatching on Exhibit D consisting of approximately .88 acres.
3. Allocation of Costs. As consideration for the City's and Hotel Owner's consent to this
Sixth Amendment, Section 6. 1.1 and Section 6.1.2 are hereby deleted and replaced with the
following, which increase the share of Maintenance Costs to be borne by Office Owner:
6.1.1 Lot 5. All Maintenance Costs for Lot 5 shall be borne as follows:
Office Owner: 53.00%
Hotel Owner: 35.54%
City: 11.46%
100%
6.1.2 Lot 6. All Maintenance Costs for Lot 6 shall be borne as follows:
Office Owner: 51.00%
Hotel Owner: 12.96%
City: 36.04%
100%
If Office Owner conveys the Apartment Parcel to a third party, Office Owner shall have the
right to allocate its share of Maintenance Costs as provided in Section 6.1.1 and 6.2.2 between itself
and such third party, and the parties shall promptly amend the Declaration to reflect such modified
allocation.
Ordinance No. 2618 N.C.S. Page 7
4. Continuing Oblil4ations. Except as expressly set forth to the contrary in this Sixth
Modification, the Declaration remains unmodified and in full force and effect. To the extent of any
conflict between the terms of this Sixth Modification and the terms of the Declaration, the terms of
this Sixth Modification shall control.
5. Counterparts. This Sixth Modification may be executed in counterparts.
[SIGNATURES TO FOLLOW ON NEXT PAGE]
Ordinance No. 2618 N.C.S. Page 8
IN WITNESS WHEREOF, the patties hereto have executed this Sixth Modification as of
the day and year first above written.
"OFFICE OWNER"
PETALUMA MARINA OFFICE INVESTORS LLC,
a California limited liability company
By: G & W Ventures, LLC,
a California limited liability company
Managing Member
an
Matthew T. White
Managing Member
"HOTEL OWNER"
PETALUMA MARINA INVESTORS LLC,
a Delaware limited liability company
By: Lok Petaluma Marina Hotel Company, LLC,
a California limited liability company,
its Sole Member
By: Lok Petaluma Marina Development Company, LLC,
a California limited liability company,
its Managing Member
By: Luna Investments, LLC,
a Delaware limited liability company,
its Managing Member
By:
Name: Thomas Birdsall
Its: Manager
Ordinance No. 2618 N.C.S.
Page 9
// /Continued from Previous Page ///
"CITY"
THE CITY OF PETALUMA,
A public body corporate and politic
By:
Name: John C. Brown
Title: City Manager
ATTEST:
By:
Name: Claire Cooper
Title: City Clerk
APPROVED AS TO FORM:
By:
Name:
Title:
APPROVED:
By:
Name:
Title:
APPROVED:
By:
Name:
Title:
Ordinance No. 2618 N.C.S. Page 10
// /Continued from Previous Page///
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document
PETALUMA MARINA OWNERS ASSOCIATION,
a California non - profit mutual benefit corporation
Paul Andronico
President
Ordinance No, 2618 N.C.S. Page 1 1
STATE OF CALIFORNIA
COUNTY OF SONOMA
On , before me, , a Notary Public,
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized
capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Seal)
Signature
Ordinance No. 2618 N.C.S. Page 12
EXHIBIT A
Depiction of Apartment Parcel
[to be attached]
Ordinance No. 2618 N.C.S. Page 13
EXHIBIT B
Depiction of Dedicated Marina Parldng
[to be attached]
Ordinance No. 2618 N.C.S. Page 14
EXHIBIT C
Depiction of Dedicated Apartment Project Parking
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CARPORT B
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Ordinance No. 2618 N.C.S. Page 15
EXHIBIT D
Depiction of Land to be Transferred by Lot Line Adjustment
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HIGHWAY -
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EX4
Ordinance No. 2618 N.C.S. Page 16