HomeMy WebLinkAboutStaff Report 5.B 07/03/2017`SAL U
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DATE: July 3, 2017
TO:
FROM:
Agenda Item #5. B
Honorable Mayor and Members of the City Council through City Manager
Eric W. Danly, City Attorney
SUBJECT: . Adoption of Ordinance Approving: 6th 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
RECOMMENDATION
It is recommended that the City Council Adopt an Ordinance Approving: 6t1' 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 (Attachment 1).
BACKGROUND
On June. 19, 2017, the City Council introduced Ordinance 2618 N.C.S. with amendments,
approving: 6th 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. The Council introduced the ordinance by a vote of 5/7 with Vice Mayor Barrett and Mayor
Glass opposed.
DISCUSSION
Ordinance No. 2618 N.C.S. ("Ordinance") implements transfer by quitclaim of Lot 6 ("Subject
Property") totaling approximately 2.39 acres of a commercial subdivision comprising a total of 6
lots pursuant to Parcel Map No. 247 filed February 29, 1990 in Book 454 of Maps, pages 9 and 10,
Sonoma County Records. The Ordinance effects the transfer of the Subject Property from the City
of Petaluma Successor Agency as fee owner to the Petaluma Marina Owners Association
("Association") as successor to Marina Office Park Associates as envisioned in and in accordance
with the terms of the Declaration of Easements, Covenants, and Restrictions and Reciprocal
Easements for Petaluma Marina Project ("Declaration") via an agreement form ("Contribution
Agreement") specified in the Declaration. The Declaration was part of a series of transactional
documents related to commercial development located at and established in conjunction with the
Petaluma Marina.
As described in the Ordinance, the Association wishes to acquire the Subject Property from the
City on the terms and conditions set forth in the Sixth Modification ("Modification") of the
Declaration to facilitate an apartment development ("Marina Apartments") on property adjacent to
the Subject Property. The Ordinance incorporates and provides for City Council approval of the
Modification, the Contribution Agreement, and an amendment terminating a subdivided ground
lease ("Amendment") to the Subject Property as pant of the transfer. The Ordinance authorizes and
directs the City Manager to execute on behalf of the City the Modification, the Contribution
Agreement, and the Amendment in a form substantially in accordance with the exhibits to the
Ordinance.
As introduced by the City Council, the City Manager's authorization and direction pursuant to the
Ordinance is 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.
FINANCIAL IMPACT
The financial impact associated with this action is primarily that of staff time involved in
reviewing the transactional history related to the Marina, review of legal descriptions and
preparation of the current transactional documents. The processing of the Marina Apartments
application is subject to a cost recovery agreement with the applicant. The deposit accounts for the
project had balances as follows as of May 31, 2017: SPAR $589.15; Public Improvements
$2298.95; Lot Line Adjustment $3568.86. Because the City Council conditioned its approval of
the Ordinance on reimbursement by Basin Street Properties 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, the cost to the City of the action will be reduced by that amount.
ATTACHMENTS
Attachment 1: Ordinance Approving Declaration Amendment
Exhibits:
A. Sixth Modification of Declaration of Easements
B. Contribution Agreement
C. Subdivided Ground Lease Amendment as Amended
2
EFFECTIVE DATE
OF ORDINANCE
Introduced by
Attachment 1
ORDINANCE NO. 2618 N.C.S.
Seconded by
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
WHEREAS, the City is fee title owner of that certain real property containing approximately
2.39 acres located in the City of Petaluma, County of Sonoma, State of California, designated Lot
6, as shown on Parcel Map No. 247 filed February 27, 1990 in Book 454 of Maps, Pages 9 and 10,
Sonoma County Records, (the "Subject Property"); and
WHEREAS, on or about July 16, 1984, the City and the Petaluma Marina Owners
Association's predecessor -in -interest, Marina Office Park Association, a California limited
partnership ("MOPA"), entered into that certain Agreement Concerning Development for the
development of a marina on certain real property adjacent to the Subject Property by the City
and the development by MOPA of a commercial project on the Subject Property and Lots 1, 2, 3,
4 and 5 as shown on Parcel Map No. 247 filed February 27, 1990 in Book 454 of Maps, Pages 9 and
10, Sonoma County Records (the "Commercial Project"), together with a parcel referred to as the
"Apartment Parcel." The Commercial Project and the Apartment Parcel are referred to
collectively herein as the "Remaining Project;" and
WHEREAS, pursuant to terms of the Agreement Concerning Development, the City and
MOPA entered into that certain Ground Lease dated October 3, 1985 concerning the Subject
Property and the Remaining Project and recorded on that date in the Official Records of Sonoma
County as Document No. 85065899; and
WHEREAS, pursuant to the Ground Lease, the City and MOPA have entered into that
certain Subdivided Ground Lease - Lot 6 (the "Lease") covering the Subject Property dated
September 11, 1990 and recorded on September 12, 1990 in the Official Records of Sonoma
County as Document No. 1990-0090885, and that certain Declaration of Easements, Covenants
and Restrictions and Reciprocal Easements for the Petaluma Marina Project, covering the Subject
3
Property and the Remaining Project dated as of dated September 14, 1990 and recorded
September 14, 1990 in the Official Records of Sonoma County as Document No. 1990-0091972, 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, that certain Third Modification of Declaration of
Easements, Covenants and Restrictions and Reciprocal Easements for Petaluma Marina Project
dated December 29, 2004, 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, and that certain erroneously titled Fourth Modification of Declaration of Easements,
Covenants and Restrictions and Reciprocal Easements for Petaluma Marina Project dated March
31, 2011 and recorded on July 15, 2011 in the Official Records as Document No. 2011059815 (as so
amended, "CC&Rs"); and
WHEREAS, the Petaluma Marina Owners Association ("Association") has succeeded to
MOPA's interest in the Lease; and
WHEREAS, the parties to the CC&Rs acknowledge and agree that the fair market value of
the Subject Property as burdened by the CC&R's and the permitted uses under presently existing
land use restrictions and the terms of the agreements governing use of the Subject Property is
minimal; and
WHEREAS, City is a member of the Association, and the City, through the CC&R's and the
bylaws of the Association, has maintained significant control over the operation of the Association
and, after the Association's acquisition of the Subject Property, shall retain significant control over
the management and use of the Subject Property; and
WHEREAS, in order to facilitate the development of the Subject Property in the manner
originally contemplated by the Agreement Concerning Development, Ground Lease and the
Lease, and to facilitate the development of the Apartment Parcel in accordance with previously
issued City approvals, the Association wishes to acquire the Subject Property from the City and the
City wishes to contribute the Subject Property to the Association on the terms and conditions set
forth in a proposed Sixth Modification of Declaration of Easements, Covenants and Restrictions
and Reciprocal Easements for Petaluma Marina Project (the "Sixth Amendment"), which Sixth
Amendment is attached to and made a part of this ordinance as EXHIBIT A; and
WHEREAS, to accomplish transfer of ownership of the Subject Parcel in accordance with
the Sixth Amendment, in addition to the Sixth Amendment, the following documents have been
prepared: a contribution agreement ("Contribution Agreement"), which is attached to and
made a part of this ordinance as EXHIBIT B, and an amendment terminating the Lease
("Amendment"), which is attached to and made a part of this ordinance as EXHIBIT C; and
WHEREAS, Section 46 of the Charter of the City of Petaluma requires that specified actions
for the acquisition, sale, or lease of real property be taken by Ordinance; and,
WHEREAS, the City Council finds this action qualifies for exemption under the California
Environmental Quality Act (CEQA) pursuant to Title 14, Chapter 3 of the California Code of
El
Regulations (CEQA Guidelines), sections 15061, 15301 involving purchase, sale, and/or lease of
existing facilities;
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 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.
5
INTRODUCED and ordered posted/published this 19th day of June, 2017.
ADOPTED this day of 2017 by the following vote:
Ayes:
Noes:
Abstain:
Absent:
David Glass, Mayor
ATTEST: APPROVED AS TO FORM:
Claire Cooper, CMC, City Clerk
Eric W. Danly, City Attorney
R
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL
TO:
Basin Street Properties
1383 N. McDowell Blvd.
Suite 150
Petaluma, CA 94954
Attn: Jennifer Tompkins
A//
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 No 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
7
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 Parldng 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 Parldn . 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 Parldn. 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 Parking_Stalls
Lot 1: 113
Lot 2: 123
Lot 3: 1153
Lot 4: 196
Marina: 98
Apartment Parcel: 45
Unallocated: 26
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.
0
4. Continuing Obligations. 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 terns of this Sixth Modification and the terms of the Declaration, the terns of
this Sixth Modification shall control.
5. Counterparts. This Sixth Modification may be executed in counterparts.
[SIGNATURES TO FOLLOW ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties 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
Bv:
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
11
///Continued from Previous Page///
"CITY"
THE CITY OF PETALUMA,
A public body corporate and politic
By:
Name: John C. Brown
Title: City Manager
r_ U -
By:
Name: Claire Cooper
Title: City Clerk
APPROVED AS TO FORM:
By:
Name:
Title:
By:
Name:
Title:
APPROVED:
By:
Name:
Title:
12
///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
51
Paul Andronico
President
13
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.
Signature
(Seal)
14
EXHIBIT B
Depiction of Dedicated Marina Parldug
[to be attached]
Depiction of Dedicated Apartment Project Parking
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EXHIBIT D
Depiction of Land to be Transferred by Lot Line Adjustment
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18
CONTRIBUTION AGREEMENT
(Lot 6)
THIS CONTRIBUTION AGREEMENT ("Agreement") is made and entered into this
day of , 201_, by and between THE CITY OF PETALUMA, a public body
corporate and politic (the "City") and the PETALUMA MARINA OWNERS_ ASSOCIATION, a
California non-profit corporation (the "Association").
RECITALS
This Agreement is made with reference to the following facts:
A. The City is fee title owner of that certain real property containing approximately 2.39
acres located in the City of Petaluma, County of Sonoma, State of California, designated Lot 6, as
shown on Parcel Map No. 247 filed February 27, 1990 in Book 454 of Maps, Pages 9 and 10,
Sonoma County Records, more particularly described in Exhibit A attached hereto and incorporated
herein (the "Subject Property").
B. On or 'about July 16, 1984, the City and the Association's predecessor -in -interest,
Marina Office Park Associates, a California limited partnership ("MOPA"), entered into that certain
Agreement Concerning Development (herein so called) for the development of a marina on certain
real property adjacent to the Subject Property by. the City and the development by MOPA of a
commercial project on the Subject Property and Lots 1, 2, 3, 4 and 5 as shown on Parcel Map No.
247 filed February 27, 1990 in Book 454 of Maps, 'Pages 9 and 10, _Sonoma County Records (the
"Commercial Project"), together with the parcel legally described on Exhibit B. (the "Apartment
Parcel"). The Commercial Project and the Apartment Parcel are.referred to collectively herein as
the "Remaining Project".
C. Pursuant to terms of the Agreement Concerning Development, the City and MOPA
entered into that certain Ground Lease (herein so called) dated .October 3, 1985 concerning the
Subject Property and the Remaining Project and recorded on that date in the Official Records of
Sonoma County as Document No. 85065899.
D. Pursuant to the Ground Lease, the City and MOPA have entered into that certain
Subdivided Ground Lease — Lot 6 (the "Lease") covering the Subject Property dated September 11,
1990 and recorded on September 12, 1990 in the Official Records of Sonoma County as Document
No. 1990-0090885, and that certain Declaration of Easements, Covenants and Restrictions and
Reciprocal Easements for the Petaluma Marina Project, covering the Subject Property and the
Remaining Project dated as of dated September 14, 1990 and recorded September 14, 1990 in the
Official Records of Sonoma County as Document No. 1990-0091972, 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
19
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, that certain Third Modification of Declaration of Easements, Covenants and
Restrictions and Reciprocal Easements for Petaluma Marina Project dated December 29, 2004, (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"), that certain erroneously titled Fourth Modification of
Declaration of Easements, Covenants and Restrictions and Reciprocal Easements for Petaluma
Marina Project dated March 31, 2011 and recorded on July 15, 2011 in the Official Records as
Document No. 2011059815, (the "Fifth Amendment"), and that certain Sixth Modification of
Declaration of Easements, Covenants and Restrictions and Reciprocal Easements for Petaluma
Marina Project (the "Sixth Amendment") dated and recorded on
in the Official Records as Document No. (as so
amended, the "CC&R's").
E. The Association has succeeded to MOPA's interest in the Lease.
F. The parties hereto acknowledge and agree that the fair market value of the Subject
Property as burdened by the CC&R's and the permitted uses under presently existing land use
restrictions and the terms of this Agreement is minimal.
G. The City is a member of the Association. The City, through the CC&R's and the bylaws
of the Association, has maintained significant control over the operation of the Association and,
after the Association's acquisition of the Subject Property, shall retain significant control over the
management and use of the Subject Property.
H. In order to facilitate the development of the Subject Property in the manner originally
contemplated by the Agreement Concerning Development, Ground Lease and the Lease, and to
facilitate the development of the Apartment Parcel in accordance with previously issued City
approvals, the Association wishes -to acquire -the Subject Property from the City and the City wishes
to contribute the Subject Property to the Association on the terms and conditions hereinafter set
forth.
AGREEMENT
ACCORDINGLY, for good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1 - AGREEMENT TO CONTRIBUTE TITLE
The City hereby agrees to convey and the Association hereby agrees to accept the Subject
Property on the terms and conditions set forth below.
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ARTICLE 2 — TITLE
2.1 Title Report. The Association has received a First Amendment Preliminary Report
(the "Title Report") issued by Old Republic Title Company, 151 Petaluma Blvd S. #125, Petaluma,
California, dated October 28, 2016, as Order No. 0812011746 -JJ, a copy of which is attached hereto
as Exhibit C and incorporated herein. The Association hereby approves those certain title matters
shown as Exceptions Nos. 1-16, 18-19, and 21-35 as shown on the Title Report.
2.2 Condition of Title. Title to the Subject Property shall be conveyed by the City to the
Association at close of Escrow free and clear of all liens, encumbrances, restrictions and rights of
way of record, subject only to the following (the "Permitted Conditions of Title"):
2.2.1 The lien for a pro rata amount of any current real property taxes, a lien .but
not yet due and payable;
2.2,2 Those certain restrictions of record shown on the Title Report and approved
by the Association pursuant to the terms of Paragraph 2. 1, above;
2.2.3 The CC&R's; and
2.2.4 Any lien or encumbrance caused by the acts of the Association.
2.3 Policy of Title Insurance.. Title .to the Subject Property shall be insured by an
owner's CLTA standard form policy of title insurance (the "Title Policy") issued by Escrow -Holder -
or such other insurer as the Association may choose prior to Close of Escrow, in any amount
insuring the Association's interest in the Subject, Property free and clear of all liens and
encumbrances other than the Permitted Conditions of Title. .
ARTICLE 3 ESCROW AND CLOSING
3.1 Closing; Timing. The Closing of this transaction (the "Closing", "Closing Date" or
"Close of Escrow") shall take place thirty (30) calendar days after.the date of execution hereof by
both the City and the Association.
3.2 Escrow Holder. The Closing shall occur at the offices of Old Republic Title
Company, 151 Petaluma Blvd S #125, Petaluma, California (the "Escrow Holder"). Time is of the
essence of this Agreement and, except as specifically provided for herein, the Closing shall not be
adjourned or postponed unless consented to in writing by the City and the Association. The Escrow
Holder shall also cause all policies of title insurance described in Paragraph 2.3, above, to be issued
to the Association at the Closing.
3.3 The. Association's Conditions Precedent to Closing. As express conditions precedent
to the Association's obligations hereunder, the following conditions precedent must be satisfied or
waived by the Association on or prior to the Closing Date:
3.3.1 The Association must have approved the condition of title to the Subject
Property in the manner described in Paragraph 2. 1, above.
21
3.3.2 The Escrow Holder must be irrevocably committed to issue, to the
Association, the Title Policy.
3.3.3 No change in the physical condition or permitted use of the Subject Property,
including, without limitation, any change in zoning or land -use restrictions, shall have occurred or
been effected after the date of the Association's execution of this Agreement, or shall be pending or
threatened at the Close of Escrow.
3.3.4 . No litigation or condemnation proceeding concerning the Subject Property
shall have occurred, or be pending or threatened, at the Close of Escrow.
The conditions precedent described in this Paragraph 3:3 are for the sole benefit of the
Association and may be waived only by a written instrument signed by the Association.
3.4 Effect of Failure of Condition. In the event any condition set forth in Paragraph 3.3,
above, shall not be satisfied or waived, then this Agreement shall terminate, all documents
deposited into escrow shall be returned to the party who made such deposit, the City shall bear all
costs incurred by the City in entering this Agreement, and the Association shall bear all costs
incurred by the Association in entering into this Agreement.
3.5 The City's Documents at Closing. The City's Documents at closing. The City shall
deposit the following with the Escrow Holder prior to the Closing Date:
3.5.1 Deed. The City shall execute, acknowledge and deliver in recordable form a
quit claim deed or deeds (the "Deed") in the form attached as Exhibit D to this Agreement
conveying to the Association all right, title and interest in and to the Subject Property.
3.5.2 Other Documents. The City shall also deliver to the Association such escrow
instructions and other documents required by the Escrow Holder to complete the transfer of the
Subject Property to the Association in the manner described in this Agreement:
3.6 The Association's Documents at Closing: The Association shall deliver to the City
through escrow such escrow instructions and other documents required by the Escrow Holder to
complete the transfer of the Subject Property in the manner described in this Agreement.
ARTICLE 4 — ADJUSTMENTS AT CLOSING
4.1 Costs Paid or Incurred by the City. The city shall pay or otherwise incur (i). the fees
and expenses of the City's counsel in connection with this transaction and (ii) all costs and fees to
release any lien or encumbrance on the Subject Property disapproved by the Association in the
mariner described in Paragraph 2.1, above.
4.2 Costs Paid by the Association. The Association shall pay at the Closing (i) the
premium for the Title Policy, (ii) the Escrow Holder's fees; (iii) the cost of all city and county .
transfer taxes (unless exempt); (iv) recording fees for the Deed (if any); (v) fees and expenses of the
22
Association's counsel; and (vi) all other fees customarily paid for by a purchaser for the purchase of
similar property in Sonoma county. .
4.3 Prorations.
4.3.1 Rent. Rent, if any, due the City under the Lease shall be prorated as of
September 13, 2017 (and not the Closing Date).
4.3.2 No Other Prorations. Except as provided in Paragraph 4.3.1, real property
taxes., insurance premiums, utilities and other items of income and expense shall not be prorated as
of the Closing Date.
ARTICLE 5 — LEASE AND CC&R' S
5.1 Lease: The City and the Association agree that the Lease shall remain in full force
and effect and shall remain enforceable in accordance with its terms from and after the date of
execution of this Agreement until and unless the Association and/or its assignees and/or nominees
may acquire fee title to the Subject Property in accordance with the terms of this Agreement. The
the Lease shall terminate only at the Closing Date hereunder. At the Closing Date and at any time or
times thereafter, the City shall execute and deliver to the Association or to the Escrow Holder or
any other title insurer who may issue a title insurance commitment or policy concerning the Subject
Property or any part or parts thereof, a quitclaim deed or other instrument reasonably required to
evidence the termination of the Lease with respect to the Subject Property. The terms of this
Paragraph 5.1 shall survive the Closing Date.
5.2 CC&R's. The City and the Association agree that the CC&Rs shall remain in full
force and effect and shall remain enforceable in accordance with their terms at all times after the
execution of this Agreement and shall survive the Close of Escrow.
ARTICLE 6 — BROKERS AND FINDERS
The parties hereto agree and represent that no real estate brokers, salespersons or finders are
involved in this transaction who would be entitled to a real estate sales commission or finders' fee.
Each party hereby agrees to indemnify, defend, protect and hold the other party free and harmless
from any and all liability (including attorneys' fees) which may arise from payment of real estate
commissions or other charges due or claimed by a broker, agent or finder claiming under or through
such indemnifying party.
ARTICLE 7 — ASSIGNMENT BY THE ASSOCIATION
Subject to the provisions of this Article 7, the Association is hereby granted the right to
transfer and assign all or any part of this Agreement or all or any of the rights granted the
Association hereunder in or to this Agreement and/or the Subject Property.
7.1 Consent Required. Any assignment of this Agreement shall be preceded by the
written consent of the City, except as provided in Paragraph 7.2, below. Said prior written consent
of the City shall not be unreasonably withheld or delayed, but the City may consider such factors as
23
the reputation, financial worth and stability and operating ability of any proposed assignee. Along
with any request for consent, the Association shall deliver to the City a true and accurate copy of the
assignment instrument together with a statement from the Association of whether or not the
proposed assignee or sublessee is affiliated with the Association. If the City fails to consent to or to
disapprove any proposed assignment within twenty (20) business days after written notice from the
Association, then the City shall be deemed unconditionally and irrevocably to have approved such
assignment. The City hereby consents to the lot line adjustment contemplated in Section 2 of the
Sixth Modification.
7.2 The Association -Controlled Partnership and Owners Association. Anything in this
Article 7 notwithstanding, the Association may assign or transfer this Agreement without seeking or
obtaining the City's approval to a general or limited partnership of which Richard A. Coombs and
Borue H. O'Brien are general partners: The Association must deliver to the City a copy of any
assignment which assignment document must be executed in recordable form by the assignor and.
the assignee. The terms of this Paragraph 7.2 shall also apply to the transfer of memberships in the
Association or of general or limited partner interests in any successor partnership otherwise
allowable under this Paragraph 7.2.
ARTICLE 8 - GENERAL PROVISIONS
8.1 Notices. All notices or other communications made pursuant hereto shall be in
writing and shall be deemed properly delivered, given or served when (i) personally delivered
against receipted copy or (ii) mailed by certified or registered mail, postage prepaid, in either case
(i) or (ii) to the parties at the following addresses:
The City: City Hall .
11 English Street
Petaluma, CA 94952
Attention: City Manager
The Associations: Petaluma Marina Owners Association
c/o Basin Street Properties
1383 N. McDowell Blvd., Suite 150
Petaluma, CA 94954
Attn: Vice President, Property Management
All notices personally delivered shall be deemed given as of the date shown on the receipt, copy and
all notices mailed shall be deemed received- on the date shown on the return receipt, or if no date is
shown, within forty-eight (48) hours of deposit in the United states mail or the day after deposit
with a national overnight delivery service such as Fed Ex. Either party may change its address for
the purposes of this Paragraph 8.1 by giving fifteen (15) days prior written notice of such change to
the other party in the manner provided in this Paragraph 8.1.
8.2 Binding. This Agreement shall be binding upon and inure to the benefit of any
properly permitted successors in interest or assigns of the parties hereto.
►.'
8.3 Entire Agreement. This Agreement, the exhibits hereto, the Lease, the CC&Rs and
the exhibits to each of said documents and any instruments incorporated therein by express
reference contain the entire agreement of the parties hereto with respect to the matters covered
hereby and together supersede all prior written or oral arrangements and understandings between
the parties in regard to the Subject Property.
8.4 Amendments. This Agreement may only be amended by a further written document
signed by each of the parties hereto.
8.5 Further Documents. Each party will, whenever and as often as it shall be requested
by the other party, execute, acknowledge and deliver, or cause to be executed, acknowledged or
delivered, such further instruments and documents, including escrow instructions, as may be
necessary in order to complete the sale, conveyance and transfer contemplated herein. and shall
further do any and all other acts and execute, acknowledge and deliver any and all documents as
may foe requested in order to carry out the intent and purpose of this Agreement.
8.6 Counterparts. This Agreement may be executed simultaneously or in counterparts.
In the latter event, each counterpart shall be deemed an original, but both counterparts together shall
constitute the same agreement.
8.7 Severability. Should any part, term or provision of this Agreement or any document
required herein to be executed or delivered at the Closing be declared invalid,. void or
unenforceable, all remaining parts, terms and provisions hereof shall remain in full force and effect
and shall in no way be invalidated, impaired or affected thereby.
8.8 Survival. The provisions, representations and warranties hereof shall survive the
Close of Escrow and the delivery of the consideration.
8.9 Exhibits. All the exhibits attached to this Agreement and all exhibits attached to the
exhibits attached to this Agreement are incorporated herein as though set forth in full and shall be
considered as a material part of the agreement of the parties Hereto.
8.10 Attorneys' Fees. In the event either party hereto engaged the services of any
attorney or brings suit to enforce or interpret this Agreement, or for damages on account of the
breach of any party, the prevailing party shall be entitled to receive from the other reasonable
attorneys' and experts' fees and costs incurred in addition to such costs as may be awarded by the
court.
8.11 Definitions. For purposes of this Agreement, the following terms shall have the
meaning hereafter set forth: (i) "Closing", ."Closing Date" or "Close of Escrow" shall mean the
consummation of the purchase and sale transaction evidenced by the recording of the Deed to the
Subject Property described above; (ii) "date of execution of this Agreement" or ."date of execution .
hereof' shall mean the date set forth in the preamble paragraph on the first page of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
25
IN WITNESS WHEREOF, the parties have executed this Agreement effective the day and
year first above written.
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:
By:
Name:
Title:
PETALUMA MARINA OWNERS
ASSOCIATION, a California non-profit
corporation
By:
Name: Paul Andronico
Title: President
l
EXHIBIT A
Legal Description of Subject Property
The land referred to is situated in the County of Sonoma, City of Petaluma, State of California, and
is described as follows:
PARCEL ONE:
Those portions of Lot 6 of "Petaluma Marina" Parcel Map No. 247 recorded in Book 454 of Maps
at Pages 9 and 10 Sonoma County Records and the lands of O'Brien as described in .Deed filed
under Document No-. 89009167 and shown as Lot 7 of the City of Petaluma Parcel Map No. 271
recorded in Book 501 of Maps at Pages 12-14 Sonoma County Records and being described as
follows:
Beginning at the most Southerly corner of Lot 6 of said Parcel Map No. 247; thence along the
Southwesterly line of said Lot 6 North 41' 04'00" West 253.78 feet to the Southerly line of Lot 7 of
the Parcel Map No. 271; thence leaving said Southwesterly line of Lot 6 along the line of said Lot. 7,
Southerly 60.51 feet along a curve to the left from a tangent that bears South 310 36' 40" West
through a central angle of 9° 50'40" having a radius of 352.20 feet; thence North 24° 38'55" West
28.00 feet;. thence leaving said line of Lot 7 North 480 46' 00" East 296.76 feet; thence South 71°
04' 00" East 31.23 feet to the Southerly line of said Lot 7; thence Easterly along said line 154.96
feet along a curve to the right from a tangent that bears North 750 51' 26" East through a central
angle of 25° 12' 34" having a radius of 352.20 feet; thence South 76° 58' '08" .East 171.97 feet;
thence leaving said line of lot 7 South 130.00'47" West 74.74 feet along the Easterly line of lot 6 of
said Parcel Map No. 247; thence South 48° 56'00" West 94.19 feet; thence North 41° 04'00" West
49.40 feet; thence South 48° 56'00" West 329.03 feet to the point of beginning.
Being the lands pursuant to Notice of Lot Line Adjustment recorded April 9, 1993 as Document
1993-0044993 of Official Records.
PARCEL TWO:
An easement for street or highway purposes as set forth in the document recorded March 22, 1988
as Document 88022147 and as modified by document recorded July 29, 1988 as Document
88062185 of Official Records.
APN: 005-060-072
27
EXHIBIT B
Legal Description of Apartment Parcel
The land referred to is situated in the County of Sonoma, City of Petaluma, State of California, and
is described as follows:
TRACT ONE:
All that certain real property situated in the City of Petaluma, County of Sonoma, .State of
California, described as Lot 2; as shown on Parcel Map No. 271, filed in the Office of the County
Recorder on October 28, 1992, in Book 501 of Maps, Page(s) 12, 13 and 14, Sonoma County
Records.
EXCEPTING THEREFROM all that portion of land contained in the Deed to the City of Petaluma
recorded June 5, 1996 under Document No. 1996-0049786, Sonoma County Records.
ALSO EXCEPTING THEREFROM mineral rights, etc., as reserved in that certain Deed from
Northwestern Pacific Railroad Company, a California corporation, to N. Gail, Allen and Susan
Allen, husband and wife, as joint tenants, dated January 17, 1989, and recorded February 1, 1989,
under Recorder's Document No. 89-0009165, Sonoma County Records.
WEIMii"
Lot 7, as shown upon that certain Map entitled "City of Petaluma, Parcel Map No. 271," filed in the
Office of the County Recorder of Sonoma County, State of California, filed in Book 501 of Maps,
at Page(g) 12 through 14, Sonoma County Records.
EXCEPTING THEREFROM all that portion of land conveyed to the City of Petaluma, a Municipal
Corporation, described in that certain Quitclaim Deed recorded April 9, 1993 under Document No.
1993-0044994 Official Records of Sonoma County, California.
TRACT THREE:
Those portions of Lot 6 of Parcel Map No. 247 Recorded in. Book 454 of Maps, Pages 9 and 10,
Sonoma County Records, and being described as follows:
Commencing at the most Southerly corner of said Lot 6; thence along the Southwesterly line of said
Lot, North 41' 04'00" West, 253.78 feet; thence 15.00 feet along a curve to the right from a tangent
that bears North 31' 36'40" East through a central angle of 2°2 6'25" having a radius of 352.20 feet
to the point of beginning; thence continuing along said curve 180.91 feet through a central angle of
29° 25' 51 "; thence South 48° 46'00" West, 178.93 feet to the point of beginning.
APN: 005-060-089
28
EXHIBIT C
Title Report
[to be attached]
29
RECORDING REQUESTED.BY
AND WHEN RECORDED MAIL TO:
Petaluma Marina Owners Association
c/o Basin Street Properties
1318 N. McDowell Blvd., Suite 150
Petaluma, CA 94954
Attn: Jennifer Tompkins
EXHIBIT D
Form of Deed
THE AREA'ABOVE IS RESERVED FOR RECORDER'S USE
QUITCLAIM DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
THE CITY OF PETALUMA, a public body corporate and politic, grants, transfers and assigns to
the PETALUMA MARINA. OWNERS ASSOCIATION, a California non-profit corporation, all of
its interest in that certain real property located in the City of Petaluma, County of Sonoma, State of
California, and which is more particularly described in Schedule 1, attached hereto and incorporated
herein by this reference, subject to all matters of record in the Official Records of Sonoma County,
California.
IN WITNESS WHEREOF, this Quitclaim Deed has been executed this day
of , 201_
THE CITY OF PETALUMA,
a public body corporate and politic
By:
Name: John Brown
Title: City Manager
ATTEST:
By:
Name: Claire Cooper
Title: City, Clerk,
APPROVED AS TO FORM:
By:
Name:
Title:
By:
Name:
Title:
IN
SCHEDULE 1
The land referred to is situated in the County of Sonoma, City of Petaluma, State of California, and
is described as follows:
PARCEL ONE:
Those portions of Lot 6 of "Petaluma Marina" Parcel Map No. 247 recorded in Book 454 of Maps
at Pages 9 and 10 Sonoma County Records and the lands of O'Brien as described in Deed filed
under Document No. 89009167 and shown as Lot 7 of the City of Petaluma Parcel Map No. 271
recorded in Book 501 of Maps at Pages 12-14 Sonoma County Records and being described as
follows:
Beginning at the most Southerly corner of Lot 6 of said' Parcel Map No. 247; thence along the
Southwesterly line of said Lot 6 North 41'.04'00" West 253.78 feet to the Southerly line of Lot 7 of
the Parcel Map No. 271; thence leaving said Southwesterly line of Lot 6 along the line of said Lot 7,
Southerly 60.51 feet along a curve to the left from a tangent that bears South 31° 36' 40" West
through a central angle of 9° 50' 40" having a radius of 352.20 feet; thence North 24° 38' 55" West
28.00 feet; thence leaving said line of Lot 7 North 48° 46' 00" East 296.76 feet; thence South 71°
04' 00" East 31.23 feet to the Southerly line of said Lot 1; thence Easterly along said line 154.96
feet along a curve to the right from a tangent that bears North 75° 51: 26" East through a central
angle of 25° 12' 34" having a radius of 352.20 feet; thence South 76° 58' 08"• East 171.97 feet;
thence leaving said line of lot 7 South 13° 00' 4V West 74.74 feet along the Easterly line of lot 6 of
said Parcel Map No. 247; thence South 48° 56' 00" West 94.19 feet; thence North 41° 04' 00" West
49.40 feet; thence South 48° 56' 00" West 329.03.feet to the point of beginning.
Being the lands pursuant to Notice of Lot Line Adjustment recorded April 9, 1993 as Document
1993-0044993 of Official. Records.
An easement for street or highway purposes as set forth in the document recorded March 22, 1988
as Document 88022147 and as modified by document recorded July 29, 1988 as Document
88062185 of Official Records.
APN: 005-060-072
31
Recording Requested By
City of Petaluma
No fee required, Govt. C §27373
When Recorded Mail To:
City of Petaluma
City Clerk's Office
11 English Street
Petaluma, CA 94952
Amendment Terminating Subdivided Ground Lease
Between
The City of Petaluma
And
Petaluma Marina Owners Association
(Lot 6)
WHEREAS, the City is fee title owner of that certain real property containing
approximately 2.39 acres located in the City of Petaluma, County of Sonoma, State of California,
designated Lot 6, as shown on Parcel Map No. 247 filed February 27, 1990 in Book 454 of
Maps, Pages 9 and 10, Sonoma County Records, (the "Subject Property"); and
. WHEREAS, on or about July 16, 1984, the City and the Petaluma Marina Owners
Association's predecessor -in -interest, Marina Office Park Association, a California limited
partnership ("MOPA"), entered into that certain Agreement Concerning Development for the
development of a marina on certain real property adjacent to the Subject Property by the City and
the development by MOPA of a commercial project on the Subject Property and Lots 1, 2, 3, 4
and 5 as shown on Parcel Map No. 247 filed February 27, 1990 in Book 454 of Maps, Pages 9
and 10, Sonoma County Records (the "Commercial Project"), together with a parcel referred to
as the "Apartment Parcel." The Commercial Project and the Apartment Parcel are referred to
collectively herein as the "Remaining Project;" and
WHEREAS, pursuant to terms of the Agreement Concerning Development, the City and
MOPA entered into that certain, Ground Lease dated October 3, 1985 concerning the Subject
Property and the Remaining Project and recorded on that date in the Official Records of Sonoma
County as Document No. 85065899; and
32
A. WHEREAS, pursuant to the Ground Lease, the City and MOPA have entered into
that certain Subdivided Ground Lease — Lot 6 (the "Lease") covering the Subject Property dated
September 11, 1990 and recorded on September 12, 1990 in the Official Records of Sonoma
County as Document No. 1990-0090885, and that certain Declaration -of Easements, Covenants
and Restrictions and Reciprocal Easements for the Petaluma Marina Project, covering the
Subject Property and the Remaining. Project dated as of dated September 14, 1990 and recorded
September 14, 1990 in the Official Records of Sonoma County as Document No. 1990-0091972,
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, that certain Third Modification of
Declaration of Easements, Covenants and Restrictions and Reciprocal Easements for Petaluma
Marina Project dated December 29, 2004, 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, that certain erroneously titled Fourth Modification of
Declaration of Easements, Covenants and Restrictions and Reciprocal Easements .for Petaluma
Marina Project dated March 31, 2011 and recorded on July 15, 2011 in the Official Records as
Document No. 2011059815, and that certain Sixth Modification of Declaration of Easements,
Covenants and Restrictions and Reciprocal Easements for Petaluma Marina Project (the "Sixth
Amendment") dated _ and recorded on in the Official
Records as Document No.
(as so amended, the "CC&R's"); and
WHEREAS, the Petaluma Marina Owners Association ("Association") has succeeded to
MOPA's interest in the Lease; and
WHEREAS, parties to the CC&Rs acknowledge and agree that the fair market value of
the Subject Property as burdened by the CC&R's and the permitted uses under presently existing
land use restrictions and the terms of this Agreement is minimal; and
WHEREAS, City is a member of the Association, and the City, through the CC&R's and
the bylaws of the Association, has maintained significant control, over the operation of the
Association and, after the Association's acquisition of the Subject Property, shall retain
significant control over the management and use of the Subject Property; and
WHEREAS, in order to facilitate the development of the Subject Property in the manner
originally contemplated by the Agreement Concerning Development, Ground Lease and the
Lease, and to facilitate the development of the Apartment Parcel in accordance with previously
issued City approvals, the Association wishes to acquire the Subject Property from the City and
the City wishes to contribute the Subject Property to the Association on the terms and conditions
set forth in the Sixth Modification (all of which Agreement Concerning Development, Ground
Lease, Lease and CC&Rs are hereby incorporated into this amendment as if set forth in full); and
33
WHEREAS, accomplish transfer of ownership of the Subject Parcel in accordance with
the Sixth Amendment, in addition to the Sixth Amendment, the following documents have been
prepared: a contribution agreement ("Contribution. Agreement") (which Contribution Agreement
is hereby incorporated into this amendment as if set forth in full), and this amendment;
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is
hereby acknowledged, the City and the Association hereby agree as follows:
1. Termination of Subdivided Ground Lease. In accordance with the applicable
terms of the documents incorporated into this amendment, expressly including the
terns of that certain Subdivided Ground Lease — Lot 6 (the "Lease") covering the
Subject Property dated September 11, 1990 and recorded on September 12, 1990 in
the Official Records of Sonoma County as Document No. 1990-0090885, including,
but not limited to provisions 18.7 and 22.14 of the Lease, the Lease is hereby
terminated effective
IN WITNESS WHEREOF, the parties have executed this Agreement effective this
day of , 2017.
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 Cleric
APPROVED AS TO FORM:
By:
Name:
Title:
By:
Name:
Title:
PETALUMA MARINA OWNERS
ASSOCIATION, a California non-profit
corporation
By:
Name: Paul Andronico
Title: President
34