HomeMy WebLinkAboutStaff Report 4.B 07/11/20051
Crry OF PFTALUMA, CALIFORNIA
AGENDA BILL July 11, 2005
Agenda Title: Resolution approving an Easement Agreement with Meeting Date: July 11. 2005
Parkway Plaza LLC for access and egress for the Gatti park project,
and authorizing the City Manager to sign the agreement and the City
Clerk to record it with the County Recorder. Meeting Time: ® 3:00 PM
❑ 7:00 PM
Category (check one): ❑ Consent Calendar ❑ Public Hearing ® New Business
❑ Unfinished Business ❑ Presentation
Department'. I Directo ' Contact Person: Phone Number:
Parks and Recreation Jim C Jim Carr (707) 778-4380
Cost of Pronosal: NIA Account Number: NIA
Amount Budgeted: N/A Name of Fund: N/A
Attachments to Agenda Packet Item:
1. Site plan for the Gatti park site
2_ Public Access Easement with Parkway Plaza LLC
3. Resolution
Summary Statement:
At the time of the development of the Parkway Plaza Shopping Center, the then owners, Basin Street
Properties, had agreed to grant the City a non-exclusive easement to provide access and egress for the Gatti
park project. The access agreement has been developed with the current owners Parkway Plaza, LLC, and
is recommended to the City Council for approval.
Recommended Citv Council Action/Sueuested Motion:
Recommend approval of the proposed Access Easement for the Gatti park project with Parkway Plaza,
LLC
Reviewed by Finance Director:
ate:
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Todav's Date:
Reviewed by City Attornev:
Date:
Revision # and Date Revised:
AuDrove %.Av City Manager:
Date:
File Code:
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CITY OF PETALUMA, CALIFORNIA
JULY 11, 2005
AGENDA REPORT
FOR
Approval of an Easement Agreement with Parkway Plaza LLC
EXECUTIVE SUMMARY:
An access easement to provide access and egress for the Gatti park site has been negotiated with the
owners of the Parkway Plaza Shopping Center. The proposed agreement is recommended for City
Council approval.
2. BACKGROUND:
Prior to the start of the planning process for the Gatti park site, city staff had been involved in the
planning and design of the Parkway Plaza Shopping Center. Basin Street Properties was the owner
of the shopping center project at the time and had agreed that when the Gatti park site was
developed, they would allow use of the south west driveway off of Sonoma Mountain Parkway, for
access to a parking lot in the future park. In addition, the shopping centers design included a plaza
adjacent to the park, and a walkway that would extend through the park to the Junior College.
When park design process started in 2003, negotiations between city staff and the City Attorney's
office started with Basin Street Properties. Mid way through the negotiations, Basin Street Properties
sold the shopping center without completing the requested access easement.
Staff contacted the new owners who expressed a desire to allow the City to have an access easement
to service the new park.
Assistant City Attorney Lisa Goldfien has been working with the attorney representing Parkway
Plaza LLC, with the proposed Easement Agreement a result of her and staff's efforts.
Features of the agreement include:
a. Parkway Plaza LLC grants and Access Easement for the benefit of the Gatti park project
which runs with the land.
b. The Access Easement is perpetual in nature as long as it is used by the City.
c. Parkway Plaza LLC shall be responsible for all repairs and ordinary maintenance of the
Easement.
d. For any emergency repairs creating a hazard, the repairs will be performed and then both
parties will determine the allocation of the costs.
e. For ordinary maintenance repairs, the City shall reimburse Parkway 40% of the cost of
the work.
f. Repairs required as a result of one of the parties will be paid for by that party, although
Parkway Plaza will undertake the repairs right away.
g. Prior to performing any repairs, Parkway Plaza LLC will notify the City regarding the
proposed repairs with the estimated costs and detailed specifications.
3. ALTERNATIVES:
a. Approve the proposed Access Easement Agreement
b. Direct staff to re -negotiate with the Parkway Plaza Shopping Center owners for different terms to
the agreement.
c. Not approve the agreement.
a
4. FINANCIAL ID'IPAcTs:
There is no financial impact at this time. Through the use of the Access Easement Agreement, the
City does not have to provide a separate access driveway to the Gatti park site. In time, as wear and
tear takes place, and ordinary maintenance is required, there will be shared costs of maintenance
with the Parkway Plaza Shopping Center. The City's share for ordinary maintenance would be 40%.
In the case of emergency repairs, the costs will be shared with the allocation of costs determined by
both parties.
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CONCLUSION:
With the Access Easement provided by Parkway Plaza LLC, land that would have normally been
used to develop a drive way for access and egress for the park can be devoted for park development.
With the perpetual easement, the park access is assured as long as the park exists.
OUTCOMES OR PERFORMANCE MEASUREMENTS TxAT WILL IDENTIFY SUCCESS OR
COMPLETION:
The Access Easement will can be executed through the signature of the City Manager and filing with
the County by the City Clerk.
RECOMMENDATION:
Recommend that the City Council approve the proposed Access Easement Agreement
g:/farms/2003 agenda bill
NO
Recording requested by and,
when recorded, mail to:
City of Petaluma
Attn: City Clerk
11 English Street
Petaluma, CA 94952
Mail Tax Statements:
As Before
The undersigned Grantor(s) declare:
Documentary Transfer Tax = -0-
Transfer to Governmental Entity
(Cal. Rev & Tax Code §11922)
EASEMENT AGREEMENT
A.P.N. 137-070-069
A.P.N. 137-070-080
THIS EASEMENT AGREEMENT ("Agreement") is made and entered into as of the /,VM
day of Vvne 2005 by and between, PARKWAY PLAZA, LLC, a
California Corporation (sometimes referred to hereafter as "Parkway" or "Grantor") and
the CITY OF PETALUMA, a California municipal corporation ("City" or "Grantee").
Parkway and City are sometimes hereafter each individually referred to as a Party, and
collectively referred to as the "Parties."
RECITALS
A. Parkway is the owner of that certain real property located in the City of
Petaluma, County of Sonoma, State of California, commonly known as the
Parkway Plaza ("the Plaza"), being Assessor's Parcel No. 137-070-069.
B. City is owner of that certain real property located in the City of Petaluma,
County of Sonoma, State of California, commonly known as the Gatti Park
property ("Gatti Park"), being Assessor's Parcel No. 137-070-080.
C. In connection with the development of the Plaza, Parkway's predecessor -in -
interest agreed that upon the City's request, it would grant City a
nonexclusive easement over a portion of the Plaza's driveway directly
abutting Gatti Park to provide public vehicular and pedestrian access, and
ingress to and egress from Gatti Park.
D. City is now developing Gatti Park and wishes to provide public access thereto
over the Plaza's driveway, and Parkway is willing to provide the agreed-upon
easement.
NOW, THEREFORE, in consideration of the above facts, the Parties agree as follows:
1. GRANT OF EASEMENT. Parkway Plaza, Inc., grantor, hereby grants to
City of Petaluma, grantee, a non-exclusive easement for purposes of public pedestrian
and vehicular ingress to and egress from Gatti Park, Assessor's Parcel No. 137-070-
080 (the "Easement"), said easement being located in the City of Petaluma, County of
Sonoma, State of California, and more particularly described as follows:
See Exhibit "A" attached hereto and incorporated herein by
reference.
2. DOMINANT AND SERVIENT ESTATES: LEGAL EFFECT.
(a) The Easement granted by Parkway Plaza to City hereunder is expressly for
the benefit of Gatti Park, which shall be the dominant estate, and the Plaza shall be the
servient estate, provided that only that portion of the respective properties so benefited,
or bound and burdened, as the case may be, shall be deemed to be the dominant or
servient estate, as the case may be. The Easement granted hereunder may be
abandoned or terminated by execution of an agreement so abandoning or terminating
the same, by the owners of both the dominant and servient estates.
(b) The Easement and each right created by this Agreement is appurtenant to
the dominant estate and may not be transferred, assigned or encumbered except as an
appurtenance to such dominant estate. Each covenant contained in this Agreement (i)
constitutes a covenant running with the land, (ii) binds the Parties and every person
now having or hereafter acquiring an ownership interest in the Plaza or Gatti Park
property, and (iii) will inure to the benefit of each Party and each Parry's successors,
assigns and mortgagees. Each Party agrees that upon conveyance or lease of all or
any part its interest in the Plaza property or the Gatti Park property, together with the
Easement created hereby, the transferee or lessee thereof, by accepting such
conveyance or lease will thereby become a party to and be bound by this Agreement.
In each such instance the Party conveying or leasing such interests agrees: (a) to
require the transferee or lessee thereof to assume and agree to perform each of the
obligations of the conveying Party under this Agreement by means of a written
instrument executed, acknowledged and recorded in Sonoma County, California; and
(b) to give notice of each such conveyance or lease and agreement to the other Party
within ten (10) days after the execution thereof. Upon such assumption by a transferee
or lessee and the giving of notice thereof, the conveying Party will thereafter be
released from any obligation under this Agreement arising thereafter with respect to the
interests so conveyed. Each Party agrees to execute and deliver any appropriate
documents or assurances to evidence such release upon the written request of the
conveying Party.
3. DURATION. The Easement created hereunder shall be perpetual in
duration, so long as such Easement is used by the Grantee. Upon the nonuse of the
Easement for a period of six (6) consecutive months, the Easement shall terminate,
unless simultaneously with the commencement of the period of nonuse, the Grantee
provides the Grantor with notice of an intention to resume use of such Easement within
a specified period of time following the date on which nonuse commences, and such
resumption occurs within such period.
4. NO BARRIERS. The Parties agree that no wall, fence, or barrier of any
kind which impairs or impedes access to or use of the Easement granted hereby shall
be constructed or maintained on or adjacent to the Easement or to any portion thereof,
nor shall the Parties do anything which shall prevent, impair or discourage the use or
exercise of any of the Easement granted hereby, or the free access and movement
thereon.
5. SHARED MAINTENANCE: REPAIRS.
a) Parkway shall be responsible for performing all repairs to, and shall
regularly perform ordinary maintenance of, the Easement. The cost of such
maintenance and repairs shall be shared as follows:
1) For ordinary maintenance and repairs, City shall reimburse Parkway for
forty percent. (40%) of the cost of such work.
2) Repairs required for damages to the Easement that are caused by, or
attributable solely to the actions or omissions of, or the use of the Easement by, only
one of the Parties ("One -Party Repairs'), shall be performed by Parkway at the expense
of the Party responsible for the damage.
3) In the case of repairs which either Party reasonably determines are
required to be performed immediately to eliminate a hazardous condition ("Emergency
Repairs"), the Parties shall come to an agreement as to the allocation of the costs of
such work between the Parties following performance of the work.
4) In the event the Parties cannot come to an agreement as to the costs, or
the allocation of the costs, the Parties agree to mediate and/or arbitrate the dispute with
a mutually agreeable mediator/arbitrator. The parties shall share the costs of such
mediation or arbitration.
b) Prior to performing any ordinary maintenance and repair work on the
Easement, or any One -Party Repairs for which Parkway proposes to seek
reimbursement from the City, and as soon as possible in connection with any
Emergency repairs on the Easement, Parkway shall notify City of the proposed work,
including detailed specifications of the work to be done, the identity of the contractor,
and the total estimated or actual cost of the work. Except as to Emergency Repairs,
such notice shall be given by personal delivery, facsimile, or overnight mail not less
than ten (10) days prior to performing any work estimated to cost less than $10,000.00;
and shall be given as provided in paragraph 11, not less than thirty (30) days prior to
performing any work estimated to cost $10,000.00 or more. Upon proper service of
such notice, the City shall inform Parkway, prior to the date proposed for
commencement of work if possible, but no later than 30 following service of the notice,
whether or not City agrees to the work as proposed, the proposed costs, and the
proposed allocation of costs. In the event the Parties cannot come to an agreement, the
Parties agree to mediate and/or arbitrate the dispute with a mutually agreeable
mediator/arbitrator. The parties shall share the costs of such mediation or arbitration.
Nothing in this paragraph shall require Parkway to delay the performance of Emergency
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Repairs pending City approval of the work and costs.
6. INDEMNITY. Each Party covenants to defend, indemnify and hold
harmless the other Party from and against all claims and costs, expenses and liabilities
(including reasonable attorneys' fees) incurred in connection with all claims, including
any action or proceeding brought in connection therewith, arising from or as a result of
the use of the Easement hereby created, including but not limited to, claims arising in
connection with the death of any person, or any accident, injury, loss or damage
whatsoever caused to any person, or to the property of any person, excluding claims
caused solely by the negligence or willful act or omission of the indemnified Party or its
officers, employees, contractors, agents, or volunteers, wherever the same may occur.
7. LIABILITY INSURANCE. Each Party shall at all times during the term of
this Agreement maintain, or cause to be maintained, in full force and effect,
comprehensive public liability insurance coverage, including coverage for any accident
resulting in bodily injury to or death of any person and consequential damages arising
therefrom, and comprehensive property damage insurance, each applicable to the
Easement, in the amount of not less than One Million Dollars ($1,000,000) per
occurrence. Each Party shall furnish to the other Party, on or before the Effective Date
of this Agreement, evidence that the insurance referred to in this Section is in full force
and effect and that any premiums therefore have been paid.
8. INJUNCTIVE RELIEF: REMEDIES CUMULATIVE. In the event of any
violation or threatened violation by any Party of any of the provisions of this Agreement,
in addition to the right to collect damages, each Party will have the right to seek to
enjoin such violation or threatened violation in a court of competent jurisdiction. The
rights and remedies provided by this Agreement shall be deemed to be cumulative, and
no one of such rights and remedies shall be exclusive of any of the others, or of any
other right or remedy at law or in equity which any such Party might otherwise have by
virtue of a default under this Agreement, and the exercise of one such right or remedy
by any such Party shall not impair such Party's standing to exercise any other right or
remedy.
9. FORCE MAJEURE. Each Party shall be excused from performing any
obligation or undertaking provided in this Agreement, except any obligation to pay any
sums of money under the applicable provisions hereof, in the event of, but only for so
long as, the performance of any such obligation is prevented, delayed, or hindered by
act of God, fire, earthquake, flood, explosion, war, invasion, insurrection, inability to
procure or general shortage of labor, equipment, facilities, materials or supplies in the
open market, strike, lockout, governmental order, or any other cause, whether similar or
dissimilar to the foregoing, not within the respective control of such Party.
10. BREACH SHALL NOT PERMIT TERMINATION,. It is expressly agreed
that no breach of this Agreement shall entitle any Party to cancel, rescind or otherwise
terminate this Agreement. The foregoing limitation shall not affect, in any manner, any
other right or remedy which any Party may have by reason of any breach of this
Agreement.
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11. NOTICES. Any notice, demand, request, consent or other communication
which either Party is required or desires to deliver to any other Party shall be in writing
and shall be provided by personal delivery, by United States registered or certified mail
with postage prepaid and return receipt requested, or by overnight delivery service,
addressed to the Parties at the addresses listed below, subject to the right of any Party
to designate a different address by notice similarly given.
To Parkway: Parkway Plaza, LLC
c/o Inverness
Attn: Egan Daniels
4747 North 7t' Street, Suite 400
Phoenix, Arizona 85014
Martin Landis
16210 Bertella Drive
Encino, California 91436
To City: City of Petaluma
Attn: Director, Parks and Recreation
11 English Street
Petaluma, California 94952
Any notice, demand, request, consent, approval, designation, including any duplicate
original, or other communication so sent shall be deemed to have been given, made or
communicated, as the case may be, on the earlier of the date received, the date of the
delivery receipt, or the third day after postmark, as applicable. If any such notice
requires any action or response by the recipient, such fact shall be clearly stated in the
notice.
12. AMENDMENT. The Parties may extend, terminate or modify this
Agreement, in whole or in part, only with the consent of all Parties, by declaration in
writing, executed and acknowledged by the Parties, duly recorded in the Office of the
Recorder in and for the County of Sonoma, State of California.
13. NO THIRD PARTY BENEFICIARY. The provisions of this Agreement are
for the exclusive benefit of the Parties, their successors and assigns, and not for the
benefit of any third person, nor shall this Agreement be deemed to have conferred any
rights, express or implied, upon any third person. It is expressly understood and agreed
that no modification or amendment of this Agreement, in whole or in part, shall require
any consent or approval on the part of any permittee or occupant other than a Party.
14. SEVERABILITY. If any term, provision or condition contained in this
Agreement shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement (or the application of such term, provision or condition to persons or
circumstances other than those in respect of which it is invalid or unenforceable) shall
not be affected thereby, and each term, provision and condition of this Agreement shall
be valid and enforceable to the fullest extent permitted by law.
15. SUCCESSORS. This Agreement shall, except as otherwise provided
herein, run with the land, both with respect to the benefits and the burdens created
hereby, and shall be binding upon and inure to the benefit of the respective successors
and assigns of each Party.
16. TIME OF ESSENCE. Time is of the essence with respect to the
performance of each of the covenants and agreements contained in this Agreement.
17. NO WAIVER. No waiver of any default by any Party to this Agreement
shall be implied from any failure by any other Party to take any action in respect of such
default if such default continues or is repeated. No express waiver of any default shall
affect any default or cover any period of time other than the default and period of time
specified in such express waiver. One or more waivers of any default in the
performance of any term, provision or covenant contained in this Agreement shall not
be deemed to be a waiver of any subsequent default in the performance of the same
term, provision or covenant or any other term, provision or covenant contained in this
Agreement. The consent or approval by any Party to or of any act or request by any
other Party shall not be deemed to waive or render unnecessary the consent to or
approval of any subsequent similar act or request.
18. ATTORNEY'S FEES. In the event either party hereto shall commence any
legal action arising out of this Agreement orthe performance thereof, the party prevailing in
said action or proceeding shall be entitled to recover, in addition to its court costs,
reasonable attorney's fees to be fixed by the Court.
19. GOVERNING LAW. This Agreement shall be construed in accordance
with the law of the State of California.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date set forth above.
GRANTEE: GRANTOR:
CITY OF PETALUMA PARKWAY PLAZA, LLC
✓y
By ByC'/9� City Manager Name and title[attach notary acknow
ATTEST:
City Clerk 00
(Signatures continued on next page)
APPROVED AS TO FORM:
City Attorney
APPROVED:
Department Head
APPROVED:
Risk Manager
APPROVED:
Finance Officer
Attach Notarizations
613105 (rmk)
State of California )
) ss.
County of Los Angeles )
On June 14, 2005, before me, SUSAN ABCAR, a Notary Public in and for said County and
State, personally appeared MARTIN LANDIS, personally lrnown to me (or 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.
WITNESS my hand and official seal.
'USAN ABCAR 1
V COMM.j 7534585
NOTARY PUBUC-CALIFORNIAO
LOS ANGELES COUNTY 0
i V _ COMM. EXP. DE C. 13, 2008
a
TAO R CALL,STER
STEPHEN R CALLISTER
, IRII O. BROKER.
CALLISTER S. CALLISTER
A t W CORPORATION
TOO NORTH SHAND BOULEVARD. SUITE 560
GLENDALE, CALIFORNIA 9 12 03-123 6
June 15. 2005
Lisa A. Goldfien
Assistant City Attorney
City of Petaluma
Post Office Box 61
Petaluma, CA 94953-0061
RE: Gatti Park Easement
Dear Ms. Goldfien:
AREA CODE E16
TELEPHONE 500-1690
FAx 2a6-5535
We are returning to you the two Easement Agreements for the above -matter. They have
been executed by our client and notarized by myself.
Very truly yours,
CALLISTER & CALLISTER
Susan Abcar
Legal Secretary to Stephen R. Callister
Encls: As stated
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3 Resolution No. N.C.S.
4 City of Petaluma, California
6 WHEREAS, the City of Petaluma is constructing a 7 -acre park at the Gatti park site which
7 requires access off of Sonoma Mountain Parkway for park users; and
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9 WHEREAS, the City of Petaluma has been negotiating with Parkway Plaza LLC regarding
10 an Easement Agreement utilizing Parkway Plaza's driveway which directly
11 abuts the Gatti park site; and
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13 WHEREAS, the City of Petaluma and Parkway Plaza LLC have agreed to an Easement
14 Agreement that provides for perpetual use by the City of Petaluma for users of
15 the 7 -acre Gatti park site.
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17 NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Petaluma
18 that it hereby approves the Easement Agreement with Parkway Plaza LLC for
19 the 7 -acre Gatti park site, and authorizes the City Manager to sign the
20 agreement and the City Clerk to record the agreement with the County
21 Recorder.
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