HomeMy WebLinkAboutStaff Report 3.A 04/17/2006&A
April 17, 2006
EFFECTIVE DATE ORDINANCE NO. 2238 N.C.S.
OF ORDINANCE
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10 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PETALUMA TERMINATING
11 AN ACCESS EASEMENT AND ACCEPTING CONVEYANCE OF A SUBSTITUTE ACCESS
12 EASEMENT FROM PARKWAY PETALUMA LLC, AND AUTHORIZING THE CITY MANAGER TO
13 EXECUTE A CERTIFICATE OF ACCEPTANCE FOR THE SUBSTITUTE EASEMENT
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15 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS FOLLOWS:
16 WHEREAS, during the construction of the Gatti Park project (now Leghorns Park), the City
17 of Petaluma entered into an agreement with Parkway Plaza LLC under which Parkway Plaza LLC
18 granted and the City of Petaluma ("City") accepted a nonexclusive easement over a portion of
19 the Parkway Plaza driveway directly abutting City's Gatti Park property for vehicular and
20 pedestrian access to the Gatti Park site (the "Easement"); and,
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22 WHEREAS, on October 14, 2005, the Easement as accepted by City was recorded as
23 Instrument No. 2005146910 in the Official Records of Sonoma County; and,
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25 WHEREAS, City has been advised by legal counsel for the Easement grantors that the
26 name of the Easement grantor provided to City by the Easement grantor at the time of the
27 grant was and is incorrect; and,
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29 WHEREAS, City has been asked by legal counsel for the Easement grantors to assist them
30 in correcting the identity of the Easement grantor by terminating the Easement and entering
31 into a new Easement Agreement for the same property (the "Substitute Easement"); and,
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33 WHEREAS, the Easement grantors have executed a new Easement Agreement to
34 correctly identify the current Parkway Plaza property owner and easement grantor, as more
35 specifically described in Exhibit A attached hereto and incorporated herein by reference; and,
Ordinance No. 2238 N.C.S. Page 1
I WHEREAS, the Substitute Easement is required to perfect the City's easement rights; and
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3 WHEREAS, pursuant to Government Code Section 37354, the legislative body of a city
4 may accept a conveyance of land to the City; and,
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6 WHEREAS, pursuant to section 46 of the Petaluma City Charter, the City Council must
7 adopt an ordinance to sell or to acquire real property; and,
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9 WHEREAS, the City Council finds that the actions authorized and granted to the City
10 Manager under this ordinance to terminate the Easement and accept conveyance of the
11 Substitute Easement do not have the potential to result in a direct or reasonably foreseeable
12 indirect physical change in the environment, and therefore are not a "project" subject to the
13 California Environmental Quality Act as defined in Section 21065 of the California Public
14 Resources Code
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16 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PETALUMA, CALIFORNIA, DOES
17 HEREBY ORDAIN AS FOLLOWS:
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19 Section 1. Conditional upon (i) execution and delivery by Parkway Petaluma LLC of an
20 Easement Agreement for the Substitute Easement in the form shown in Exhibit A hereto; (ii)
21 delivery of title to the Substitute Easement that is clear of outstanding assessments, taxes, liens or
22 other monetary encumbrances other than a first deed of trust securing primary financing for the
23 servient tenement; (iii) Parkway Petaluma LLC's agreement to indemnify and hold the City
24 harmless for any and all claims arising from validity and/or use of the recorded easement
25 between June 14, 2005 and the date of recordation of the Substitute Easement; and (iv)
26 remittance to City of its costs and fees related to this Substitute Easement in the amount of
27 $ _ , the City Council:
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29 a) accepts the conveyance of the Substitute Easement from Parkway Petaluma LLC;
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31 b) terminates the Easement;
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33 c) authorizes and directs the City Manager to execute the Termination of Easement
34 attached as Exhibit B and a Certificate of Acceptance accepting the conveyance
35 of the Substitute Easement on behalf of the City of Petaluma.
Ordinance No. 2238 N.C.S. Page 2
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c) authorizes and directs the City Manager to execute the Termination of Easement
attached as Exhibit B and a Certificate of Acceptance accepting the conveyance
of the Substitute Easement on behalf of the City of Petaluma.
Section 2. The City Manager is hereby authorized to undertake such further action as
necessary to carry out the intent of this Ordinance.
Section 3. This ordinance shall become effective thirty (30) days after the date of its
adoption by the Petaluma City Council.
Section 4. The City Clerk is hereby directed to post this ordinance for the period and in the
manner required by the City Charter.
INTRODUCED and ordered posted/published this 3rd day of April, 2006.
ADOPTED this
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
day of
Claire Cooper, City Clerk
2006 by the following vote:
Keith Conevaro, Vice Mayor
APPROVED AS TO FORM:
Eric W. Donly, City Attorney
Ordinance No. 2238 N.C.S.
Page 3
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)
EXHIBIT A
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 _ day of
2006 by and between, PARKWAY PETALUMA, LLC, a Delaware limited liability
company (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 Leghoms Park property ("Leghoms 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 Leghoms Park to provide public vehicular and pedestrian
access, and ingress to and egress from Leghoms Park.
D. City is now developing Leghoms 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. Grantor, hereby grants to City of Petaluma, Grantee, a non-exclusive
easement for purposes of public pedestrian and vehicular ingress to and egress from Leghoms Park, Assessor's
Parcel No. 137-070-080 ("the Easement"), said easement being located in the City of Petaluma, County of
Ordinance No. 2238 N.C.S. Page 4
Sonoma, State of California, and more particularly described as follows:
See EXHIBIT W attached hereto and incorporated herein by reference.
2. DOMINANT AND SERVIENT ESTATES: LEGAL EFFECT.
(a) The Easement granted by Parkway to City hereunder is expressly for the benefit of Leghorns
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 benefitted, 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 Leghoms Park property,
and (iii) will inure to the benefit of each Party and each Party's successors, assigns and mortgagees. Each Party
agrees that upon conveyance or lease of all or any part of its interest in the Plaza property or the Leghorns 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.
Ordinance No. 2238 N.C.S. Page 5
(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 an 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; 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 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 Repairs
pending City approval of the work and costs.
6. INDEMNITY.
(a) 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.
(b) Notwithstanding the above subparagraph 6(a), Parkway agrees to fully defend, hold
harmless and indemnify City from and against any and all claims arising from public or City use of an easement
entered into between City and "Parkway Plaza LLC" as of June 14, 2005, and recorded in the Official records of
Sonoma County, California as Instrument No. 2005146910 on October 3, 2005, between June 14, 2005 and the
date of recordation of this Easement Agreement, including but not limited to claims that City and/or the public
were not entitled to use the property described in said easement and/or claims that said easement was not valid
because of defects in the identification of the Grantor in said easement.
Ordinance No. 2238 N.C.S. Page 6
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.
11. NOTICES. Any notices, 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 Petaluma, LLC
c/o Inverness
Attn: Egan Daniels
4747 North T" Street, Suite 400
Phoenix, Arizona 85014
Martin Landis
16210 Bertella Drive
Encino, CA 91436
Ordinance No. 2238 N.C.S. Page 7
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.
Ordinance No. 2238 N.C.S. Page 8
18. ATTORNEY'S FEES. In the event either party hereto shall commence any legal action arising
out of this Agreement or the 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. COSTS AND OTHER FEES. Notwithstanding anything to the contrary contained in this
Agreement, upon any foreclosure, or acquisition of title to the Plaza by deed in lieu of foreclosure or trustee's
sale or otherwise, no mortgagee or any party claiming by, through or under such mortgagee (together a
"Grantee") will be liable for any costs, fees, liens or charges accruing in connection with this Agreement
occurring prior to the date such Grantee acquires title, but shall be liable only to the extent of any costs, fees,
liens or charges accruing during the term of such Grantee's ownership.
20. GOVERNING LAW. This Agreement shall be construed in accordance with the law of the
State of California.
21. The individual or individuals signing this Agreement on behalf of Parkway Petaluma, LLC
represent and warrant that (i) Parkway Petaluma LLC has full power and authority to enter into this Agreement
and to perform under this Agreement; (n) me execution, aenvery, ana pertormance of tms Agreement by
Parkway Petaluma LLC have been duly and validly authorized by all necessary action on the part of Parkway
Petaluma LLC, and all required consents and approvals have been duly obtained; and (iii) this Agreement is a
legal, valid, and binding obligation of Parkway Petaluma LLC, enforceable against Parkway Petaluma LLC in
accordance with its terms.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date set forth above.
;07,11arr•1
PARKWAY PETALUMA, LLC,
a Delaware limited liability
company
By: Landwin Management, LLC,
a Delaware limited liability
company
as Manager
By: Sylvia Inc., a California
Corporation
as Manager
M
Martin Landis, CEO
Ordinance No. 2238 N.C.S. Page 10
GRANTEE:
CITY OF PETALUMA
By:
City Manager
ATTEST:
By:
City Clerk
CITY OF PETALUMA
By:
City Manager
ATTEST:
By:
City Clerk
State of California )
County of Los Angeles )
On 2006, before me, Megban Fomelli, a Notary Public in and for said state, personally
appeared MARTIN LANDIS, personally known 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 her/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.
Signature of Notary
Ordinance No. 2238 N.C.S. Page 11
EXHIBIT A
Ordinance No. 2238 N.C.S. Page 12
Exhibit "A"
Access Easement
Lying within the City of Petaluma, County of Sonoma,, State of California. being a
portion of Parcel 2, as shown on Parcel Map No, 303 frlt:d for record in Book 562 of
ar t Inap ; Rages; 33 through'Pflt Soa}pn7r1- Co ill; 1pcords, said part. tijs. more particularly
dcscribed'as follows:
A strip of land 28.00 feet in width, the southeasterly line of.wbicb is described as follows:
BEGINNING at a point on the northeast right of way all Sonoma Mountain Parkway,
being the most southerly corner of said Parcel 2; thence tlong the southeasterly line of
said parcel 2, North 35°31'23" East 206.00 feet.'
The northwesterly line of which shall be lengthened or shorttened to terminate at the
noi-l}reasteity Brie 6f�orioma "Mouhtain Parkway: "' '' '
a r CUPRaNrlg 5600 sgaazd-fent rli6r` "oi'7ess'> t "
Being a portion, o'F,APN 137-070-069
END.OI' DESCRIPTION
repateil by Cinquini &'Pas'sariao, Inc. " t
/,�arme�"M. Dralcey�
exp, I M i/05
`)Joie• _
loft
Cinquini & Passarino, Inc, 1360 No. Dutton Ave.,, Sic. 150 • Santa 'Rosa, CA 95401 • (707) 542-6268
" 3r301i.t}tAeeess
Ordinance No, 2238 N.C.S. Page 13
EXHIBIT B
Ordinance No. 2238 N.C.S. Page 14
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- A.P.N. 137-070-069
Transfer to Governmental Entity A.P.N. 137-070-080
(Cal. Rev & Tax Code § 11922)
TERMINATION OF EASEMENT
This Release is given by the City of Petaluma, a California Municipal Corporation
('City"), of Petaluma, California to Parkway Petaluma, LLC, a Delaware limited liability
company ("Parkway's.
On June 14, 2005 Parkway, incorrectly identified as Parkway Plaza LLC, as Grantor,
granted to City, as Grantee a nonexclusive easement to provide public vehicular and public street
access to and from Gatti Park, pursuant to the terms of an Easement Agreement recorded as
Instrument No. 2005146910 in the Official records of Sonoma County, California, on real
property described as follows:
See Exhibit "A" attached hereto and incorporated herein by reference.
For good and valuable consideration, receipt of which is hereby acknowledged, City
releases to Parkway the Easement described above, it being the intention of the Parties to
terminate this Easement and reinstate it in corrected form.
IN WITNESS, City has executed this release on . 2006 at
CITY OF PETALUMA
By:
City Manager
ATTEST:
By:
City Clerk
Ordinance No. 2238 N.C.S. Page 15