HomeMy WebLinkAboutAgenda Bill 4.B 03/21/2011i _ a
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W. 0-, MESA ME
DATE: March 21, 2011
TO: Honorable Mayor and Members of the City Council through City Manager
FROM: Larry Zimmer, Capital Improvements Division Manager
SUBJECT: Introduction (First Reading) of an Ordinance the Expenditure of
$82,000, Plus Costs and Fees, to Purchase Right -of -Way from Consolidated
Industries, Inc. in Connection with the Lynch Creek Trail Project and Authorizing
City Manager to Execute! All Required Documents.
RECOMMENDATION
It is recommended that the City.Council introduce the attached ordinance authorizing the
expenditure of $82,000, plus costs and fees, to purchase right -of -way from Consolidated
Industries, Inc. in connection with the Lynch Creek Trail Project and authorizing City Manager
to execute all required documents.
BACKGROUND
Paved sections of Lynch Creek Trail lie east of Sonoma Mountain Parkway and west of
McDowell Boulevard North. Between McDowell Boulevard and Sonoma Mountain Parkway,
the public has created a foot path. The City desires to construct an ADA compliant multi -use
asphalt or concrete trail (depending on the available budget at bid opening). The project will
replace the existing footpath with an all- weather surface between the River Trail and the
Petaluma Ring Trail, and will complete the gap closure. During preparation of the State Bicycle
Transportation Account (BTA) grant application, it was determined that right -of -way on
Consolidated Industries' pro_ perty was needed for the construction,, operation, and maintenance
of the new trail. Following City Council's direction on February 7, 2011, staff was able to
negotiate purchase of the right -of -way with Consolidated Industries at a cost of $82,000.
DISCUSSION
Staff recommends Council authorize City Manager to execute all documents relating to the grant
of right -of -way to facilitate construction of the trail.
Agenda Review:
City Attorney Finance Director City Manager
JF'INANCIAL IMPACT'S
The cost of the right-of-way on Consolidated Industries' property is $82,000, excluding title,
escrow, and other miscellaneous costs totaling approximately $4,000. This expense will be paid
from the approved budgeVfor the Lynch Creek Trail Project. It is expected that the right -of -way
costs will be eligible for reimbursement from the BTA grant, at a rate of 81 %. Match funding
for the BTA grant will be provided by a TDA -3 grant, previously approved by Council.
ATTACHMENTS
1. Ordinance, including Exhibit A to Ordinance, Agreement for the Purchase and Sale of Real
Property
2. Location Map
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ATTACHMENT I
ORDINANCE NO. N.C.S.
AUTHORIZING' THE EXPENDITURE OF $82,000, PLUS COSTS AND FEES, TO
PURCHASE RIGHT -OF -WAY FROM CONSOLIDATED INDUSTRIES, INC. IN
CONNECTION WITH THE LYNCH CREEK TRAIL PROJECT AND AUTHORIZING
CITY MANAGER TO EXECUTE ALL REQUIRED DOCUMENTS
WHEREAS, Consolidated Industries, Inc. (Grantor) is the owner of a parcel of real
property located at 101 Monroe Street, in the City of Petaluma, County of Sonoma, California,
Sonoma County Assessor's Parcel No. 149 - 090 -004 (Parcel); and
WHEREAS, the City of Petaluma (Grantee) is acquiring from Grantor right -of -way for
the construction, operation and maintenance of a trail; and
WHEREAS, for such purposes, Grantee intends to construct the trail onto the right -of-
way; and
WHEREAS, on February 7, 2011, the City Council of the City of Petaluma authorized
staff to negotiate the easement acquisition with the Grantor, resulting in the proposed Agreement
for the Purchase and Sale of Real Property, a copy of which is attached as Exhibit A to
Ordinance and made a part hereof; and
WHEREAS, a grant deed sufficient to grant the right-of-way will be prepared and
recorded pursuant to the Agreement for the Purchase and Sale of Real Property; and
WHEREAS, the Project;is .exempt pursuant to California Environmental Quality Act
(CEQA) pursuant to Title 1.4, the Code of Regulations ( "CEQA Guidelines"), Section 15301, as
the minor alteration of existing public facilities with negligible or no expansion in use; and
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Petaluma
as follows:
Section 1. The Recitals are true and correct, are incorporated herein by reference as though fully
set forth 'and are adopted as findings of the City Council.
Section 2. The City Manager is authorized to execute the Agreement for the Purchase and Sale
of Real Property attached as - Exhibit A to Ordinance hereto and all documents necessary to
acquire and accept the right -of- -way which is the subject of the Agreement for the Purchase and
Sale of Real Property.
Section 3. If any section, subsection, sentence, clause, phrase or word 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 anyone or more of said provisions be declared
unconstitutional, unlawful or otherwise invalid.
Section 4. This Ordinance or a synopsis of it shall be posted and /or published for the period and
in the manner required by City charter.
Section 5. This Ordinance shall become effective thirty (30) days after the date of its adoption
by the Petaluma City Council.
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AGREEMENT FOR THE PURCHASE AND SALE OF REAL PROPERTY
This Agreement dated 2011 is between the City of Petaluma, a municipal corporation
and California charter city ('CITY ") and ( "GRANTOR "). CITY and
GRANTOR are sometimes referred to hereafter as the "parties or individually as a "party".
It is agreed between the parties as follows:
PROPERTY TO BE CONVEYED:
A. GRANTOR agrees to'sell and CITY agrees to purchase from GRANTOR on the terms set
forth in this - Agreement =the following described real estate in the County of Sonoma,
comprised of an unimproved portion of a parcel commonly known as 101 Monroe Street
Petaluma, CA and identified as Assessor's Parcel Number 149- 090 -004, more particularly
described and depicted in Exhibit A attached hereto and incorporated herein by reference
(the "Subject Property ").
B. CITY is a charter city °and, governmental agency for purposes of the California Government
Code. Accordingly,'the conveyance by GRANTOR of the Subject Property to CITY is not
considered a division of land for purposes °of the Subdivision Map Act. CITY shall cause a
certificate of compliance to be issued affecting the residual portion of GRANTOR's
property, or other satisfactory documentation stating that the division of GRANTOR's
property resulting from this. conveyance complies with applicable provisions the
Subdivision Map Actand of local ordinances enacted pursuant thereto.
2. ACCEPTANCE OF GRANT DEED: Upon receipt of a Grant Deed for the Subject Property, duly
executed and acknowledged, CITY shall execute an acceptance of said Grant Deed in
accordance with and subject to the terms and conditions ofthis Agreement.
3. COMPENSATION: CITY shall`
A. Pay the sum of $82,000 for the Subject Property ( "Purchase Price ") conditioned upon fee
title to the Subject Property vesting in the CITY1ree and clear of all liens, leases,
encumbrances, Easements (recorded and /or unrecorded), assessments and taxes, .except
any title exceptions acceptable to CITY as so indicated by CITY in writing ( "Permitted
'Exceptions'). The purchase price for the Subject Property includes payment for:any and° all
improvements Iodated on the Subject Property andzeverance damages, if any,-to the
remainder of Assessor's Parcel No. 149 -090 -004 and /or Grantor's adjacent property.
B. Pay all escrow, recording. and title insurance charges, if any, incurred in this transaction.
C. Have the °authority to deduct and pay from the amount shown above any amount necessary
to satisfy any liens, bond demands and delinquent taxes due in any year except the year in
.which this transaction closes, together with penalties and interest thereon, and /or
delinquent and unpaid non delinquent assessments. Close of this transaction and payment
of compensation may, at the sole discretion of CITY, be contingent. upon any or all of the
following: (1) the CITY'S receipt of subordination agreements and /or consents and /or
quitclaim deeds and /or.deeds of partial reconveyances from any deed(s) of trust or
mortgage holder trustees and beneficiaries and /or Lessees, and (2) issuance of an CLTA
or ALTA title insurance (subject only, to Permitted Exceptions) from a title insurance
company acceptable to CITY, and in a form, acceptable to CITY.
4. REPRESENTATIONS AND WARRANTIES:
A. GRANTOR represents and warrants that Grantor has no knowledge of any disposals,
releases or threatened releases,of hazardous waste and/or hazardous, toxic or petroleum
product substances on,, from or under the Subject Property during the period of Grantor's
ownership of the Subject Property. Grantor further represents and warrants that the Grantor
has no knowledge of any disposal, release, or threatened release of'hazardous substances
or hazardous waste and /or hazardous, toxic or petroleum product substances on, from, or
underthe Subject Property which may have occurred prior to Grantor taking title to the
Subject Property. Grantor has no knowledge of any underground storage tanks on, in or
under the Subject Property. If the Subject;Property is found to.be contaminated by the
presence of hazardouswaste which requires mitigation under Federal or State law, the
Grantee may elect to seek recovery of its clean-Op costs from those who caused or
contributed to the contamination. GRANTOR acknowledges that CITY has informed
GRANT.OR..as to the plans for'the construction of the proposed public improvement in the
manner proposed.
B. GRANTOR represents.and warrants that GRANTOR is the sole fee owner of the Subject
Property and GRANTOR warrants that GRANTOR has the right and power to enter into this
Agreement and to convey fee title'and, by said Grant Deed, does convey the Subject
Property free and clear of all'taxes, assessments,. encumbrances, easements, liens,
leases, deeds of trust, and claims of any kind whatever, except for such matters as may be
waived by the CITY GRANTOR further represents and warrants that it is not under
contract with any other party for the purchase and sale of the Subject Property and that
there are no oral or written leases in effect with respect to any portion of the Subject
Property, except�that certain Convalescent Hospital Lease shown as Exception 8 in the
December 14, 2010, Preliminary Report issued by Old Republic Title Company as Order
No. 0812007019 -RF'.
C. GRANTOR shall be responsible for paying any commission incurred by it in connection with
this Agreement and the sale and purch of the Subject Property, if any.
D. GRANTOR agrees to indemnify, defend, hold harmless and reimburse CITY and CITY
officers, representatives, agents and employees from and against any and all suits,
damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses,
including without limitation attorneys' fees, in the event that any of GRANTOR's
representations or warranties contained in .this paragraph 5 are not correct at the time
made or at the close of escrow, which obligations shall survive close of escrow and
recordation of the Grant Deed. The representations and warranties set forth above shall
survive close of escrow and recordation of the Grant Deed.
5. RIGHT'OF POSSESSION AND USE: It is agreed and confirmed by the parties hereto that,
notwithstanding the other provisions in this Agreement, the right of possession and use of the
Subject Property by CITY, shall commence on recordation of the Grant Deed, whichever first
occurs, and that the consideration .amount shown above includes, but is not limited to full
payment for such possession and use, including damages, if any, from said date.
6. ESCROW; CLOSING:
A. This transaction shall be handled through an escrow with Old Republic Title Company
(hereinafter- referred to as the "Title,iCom. pany" ). Within five (5) days after this Agreement is
executed by CITY and GRANTOR, GRANTOR shall complete execute and deliver to
escrow holder (i) an affidavit executed by GRANTOR certifying that GRANTOR is not a
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"foreign person" within the meaning of Internal Revenue Code Section 1445(f)(3), and
meeting the requirements of "Internal Revenue Code Section 1445.(b)(2), and (ii) an original
Withholding Exemption Certificate (California Form 590 or 590 -RE as applicable), fully
executed 'by GRANTOR as required by the California Taxation and Revenue Code,
certifying that the GRANTOR is not subject to tax withholding under applicable California
law. GRANTOR shall also deliver the fully executed Grant Deed to the Title Company:
GRANTOR shall not be deemed to have delivered the Grant Deed to CITY and CITY shall
not be deemed to have accepted delivery of the Grant Deed until such time as the Grant
Deed is recorded in the Official Records of Sonoma County, California in accordance with
written the terms and conditions of this Agreement.
B. Upon receipt of the above documents, approval of the Permitted Exceptions by the CITY,
receipt of the necessary funds from the CITY, and receipt of a certificate of compliance
affecting the residual portion of GRANTOR's property pursuant to Section 1.B., the Title
Company shall record the Grant Deed in the Official Records of Sonoma County, California
and deliver the purchase price to GRANTOR, less amounts necessary to place title in the
condition required by this Agreement and any other amounts identified by CITY in
accordance with Section 3(D) above. When title to the Subject Property vests in CITY,
subject only to the Permitted Exceptions, title shall be evidenced by a CLTA owner's policy
of title insurance ( "Title Policy "). The Title Policy shall be in the amount of the purchase
price, showing title�to the Subject Property vested in CITY, subject only to the Permitted
Exceptions. The-ability of the Title Company to issue the Title Policy shall be a condition
precedent to CITY's obligations under this Agreement and the close of escrow.
C. Notwithstanding the foregoing, CITY shall have the sole right to elect to close this
transaction without.the use of escrow services. if CITY elects to close without the use of
escrow services, CITY shall upon acceptance of the Grant Deed, pay the purchase price
amount directly to GRANTOR, and record the Grant Deed. If CITY elects to close this
transaction with the use of escrow services, CITY and GRANTOR shall sign escrow
instructions, if necessary, to effect this Agreement and close escrow.
D. The escrow for this transaction shall close within thirty (30) days from the execution of this
Agreement by all parties, subject to the above requirements and conditions to closing.
7. SUCCESSORS: This Agreement shall be binding on and shall inure to the benefit of the parties
hereto and their respective successors, heirs, assigns and transferees.
NOTIFICATION: In the event GRANTOR sells, conveys, or assigns any property interests
encumbered by this Agreement on or after the date of this Agreement, GRANTOR shall provide
that any such sale, assignment or conveyance is subject to rights and obligations of both parties
as included herein and shall notify the successor or assignee of the rights and obligations of both
parties as included herein.
9. SURVIVAL. OF AGREEMENT: This Agreement, including .all representations, warranties,
covenants, agreements, releases and other obligations contained herein shall survive the closing
of this transaction and the recordation of the Grant Deed.
10. ENTIRE AGREEMENT: The parties have herein set forth the whole of their agreement. The
performance of this Agreement constitutes the entire consideration for said purchase and sale of
real property and the Grant Deed and shall relieve CITY of any further obligation to GRANTOR
with respect to the purchase of the Subject Property and any damages associated therewith.
GRANTOR shall make no claim for further compensation. for the acquisition or on account of the
construction of the proposed public improvement in the manner proposed, and waives all any and
all rights, claims and interest in connection therewith which GRANTOR now has or in the future
may have per Section 1542 of the Civil Code of the State of California (or similar statute or
common law principles) which states:
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A GENERAL RELEASE.DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW'OR,SUSPECT TO EXIST IN HIS OR HER,FAVOR AT THETIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE DEBTOR.
11. SEVE.RABILITY: if any provision of'this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, the remaining provisions shall continue in full force and effect
so as to carry out the original intent of the parties under this Agreement to the fullest extent
possible.
12. GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
13. AUTHORITY AND EXECUTION: Each person executing this,Agreement on behalf of a party
represents and warrants that °such person is duly and validly authorized to do so on behalf of the
entity it purports to bind:and if such party is a partnership, corporation or trustee that such
partnership,, corporation or trustee has, the full right and.authority to enter into this Agreement and
perform all of its' obligation 'hereunder.
14. CAPTIONS: The captions;of the various sections, paragraphs and subparagraphs of this
Agreement are for convenience only and shall not be considered nor referred to in resolving
questions of interpretation.
15. REQUIRED ACTIONS: Eachparty agrees to execute such instruments and documents and to
undertake such actions as may be reasonably required in order to consummate the purchase and
sale contemplated by this Agreement.
16. COUNTERPARTS: This Agreement may be executed in multiple counterparts each of which
shall be deemed an original but all of which, togethecshall constitute one and same document.
17. AMENDMENT: This Agreementshall not be modified: or amended except by an instrument in
writing executed by each of the parties hereto.
GRANTOR:
Dated:
Dated:
CITY OF PETALUMA:
Dated:
ATTEST:
City Clerk
By:
By:
John Brown
City Manager
APPROVED AS TO FORM!
Eric W. Danly
City Attorney
APPROVED:
Department Director
APPROVED:
Risk Manager
APPROVED:
Finance birector
1576092.4
EXHIBIT A TO AGREEMENT
EXHIBIT "A
PUBLIC .RIGHT OF'WAY DEDICATION
Located in the City of Petaluma, Countyof Sonoma, State of California.
A portion of the Lands of Consolidated Industries Inc.,,, a Calif orniwCorporation, asrecorded in
Document No. 1984 -'042085 June 21, 1984, Official Records of Sonoma County, California,
and being more, particularly described as follows.
Commencing at a standard City well'monument found;at the angle point of Flanigan
Way as shown onthat map,of Village. Meadows, .Unit No, 1, recorded in Book 389 of Map,
Pages 41 = 44, Sonoma "County Records;
Thence northeasterly :along1he.centerline of said Flanigan 'Way N 37 ° `17' 57" E 129.78 feet to
a found standard City monument;
Thence S 52° 42' 03 E feet to the southeasterly line _of
: said. Flanigan Way, also being
the. northwesterly'Iine of Parcel "B - 'asshown on said.mao�6f, Viltadb�. adows Unit No. 1;
Thence S 87° 39' 36" E 40;55 feet, more or less, to an angle point on the southeasterly line of
said Parcel "B", also being, the most northerly -corner of "said lands of Consolidated Industries,
Inc.;
Thence along the southeasterly line:of said Parcel "B" and the northwesterly line of said lands
of Consolidated Industnes .Inc , 34° 53'.54!'W 157,50 feettoahe Point of'Beginning;
Thence continuing.along.the. southeasterly line of said Parcel "B" and northwesterly line of
said lands.,of Consolideted,lndustries, Inc, :S 34° _53' 54 "'W,120 76 ,feet; more or less, to the
most southerly corner of Parcel "B ", also being the rriost easterly corner of Lot 1 as shown
on said map of Village Meadows. Unit No. 1
Thence continuing .'along the northwesterly line of -said lands-!,of Consolidated Industries, Inc.
and,along the,southeasterly line -of said Lot 1 S"34° 53' 54 - W 114.24 feet, more or less, to the
most westerly corner of said lands. of Consolidated Industries, Inc., also being the most
northerly.corner, of Parcel "A" as,shown on,said map of Village Meadows Unit No. 1;
Thence along the northeasterly line of said Parcel "A'' and the southwesterly line of said lands
of Consolidated Industries, 'tnc :S 54 E 25:00 feet;
Thence leavin g the northeasterly line of said Parcel "N'and'the southwesterly line of said lands
of Consolidated Industries„ Inc. N 34° 53'54" E) 19.61 feet;
Thence along a tangent curve to the left having a radius of 160.00 feet through an angle of 14°
45` 27" for a length of 41.21 feet;
Thence N 20 0 1 08':27" E 7742 feet, more or less, to the Point of Beginning.
Containing 4,673 square feet, more or less.
APN: 149 -090 -.004
Basis of Bearings: Map of`Village Meadows Unit No. 1,,, recorded in Book,389 of Maps at Pages
41 44, Official Records of Sonoma County,'California.
Richard B. Turner Date
PLS 8757
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EXHIBIT "B"
PUBLIC RIGHT OF WAY DEDICATION
`
A
IT Y OF CIT OF PE7ALU M�A
'O.R: 1986 -- 3894144
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APN 149 -4OD -014 O
KERRIGAN ^ B n
O.R. 1987-012517
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APN 149 h00 —.001,
1 - 60'
/ VAN WEST, / .APN 149- 090 -004
O.R. 1987— D21092 t, CONSOLID'P,TED
.\ a INDUSTRIES, 'NC.
O.R-' 1984- 042085
Legend
2S @ FOUND STANDARD CITY
o� WELL MONUMENT
tisA as POC Point :of A mencement
O.R. OFFICIAL RECORDS.
�\
o clti � ; 7 D1 O.R. 1984- 042085
o 9 S: � R1 BOOK,'389 OF`MAPS,
07 \ PAGES 41 — 44
RICHARD R. TURNER DATE
PLS 8757 LO C A T E D W IT H IN T HE P ETALUMA RANCHO
ATTACHMENT 2
CITY OF PETALUMA
DEPAXIMENT:OF PUBLICWORKS
DATE OF PRINTING 102408
SCALE. I*= 400'-0
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Lynch Crook Bicycle Path