HomeMy WebLinkAboutResolution 2008-223 N.C.S. 12/08/2008 Resolution No. 2008-223 N.C.S.
of the City of Petaluma, California
APPROVING A DESIGN CHANGE FOR THE RIVERFRONT APARTMENTS
AND AUTHORIZING EXECUTION OF A MASTER AGREEMENT
TERMINATING THE THEATER DISTRICT DEVELOPMENT AGREEMENT
AND THE THEATER DISTRICT OWNER PARTICIPATION AGREEMENT
WITH BASIN STREET PROPERTIES
WHEREAS, the City of Petaluma ("City") and Basin Street Properties C`Basin Street')
entered into that certain Development Agreement ("Development Agreement") dated as of
February 27, 2004, in accordance with procedures established by applicable law for such
agreements; and,
WHEREAS, the Petaluma Community Development Commission ('`Agency") and Basin
Street entered into that certain Owner Participation Agreement dated as of February 27, 2004 as
amended by that certain Pirst Amendment to Owner Participation Agreement dated as of January
23, 2006. Such Owner Participation Agreement and First Amendment to Owner Participation
Agreement are hereinafter collectively referred to as "Participation Agreement"; and,
WHF,REAS, by letter agreement between Basin Street and the City dated January 2l,
2004 (`Livery Stable Agreement") and by cultural resources mitigation measures required of
Basin Street by both the Development Agreement and the Participation Agreement, Basin Street
assumed certain obligations regarding the historic Livery Stable on the Project Property,
including relocation of the Livery Stable from the Project property to a permanent location on
City property, and negotiation with the City Manager to establish funding for ongoing restoration
and maintenance of the Livery Stable from revenue sources to be determined by Basin Street;
and.
WHEREAS, Basin Street has relocated the Livery Stable to a permanent location on City
property in accordance with the Livery Stable Agreement; and,
WHEREAS, to satisfy its obligation under the Livery Stable Agreement to negotiate to
establish funding for ongoing restoration and maintenance of the Livery Stable, Basin Street has
proposed a Master Agreement with the City and the Agency, a copy of which is attached hereto
as Exhibit A and incorporated herein by reference, and described further below, which; among
otherthings, provides for extending by 40 additional years at no cost to the City the present term
of an existing 20 year Parking Garage Easement and Operating Agreement recorded as
Docwnent No. 2007092134 in the Official Records of Sonoma County ("Garage Easement")
executed between Basin Street and the City, which provides public parking spaces and public
access to them in the `D' Street Garage constructed as part of the Project; and,
WHEREAS, Basin Street has completed, and City has accepted, by Resolution No.
2008-220 N.C.S. adopted December 1, 2008, the public improvements required by the
Development Agreement and Participation Agreement; and,
Resolution No. 2008-223 N.C.S. Page I
WHEREAS, Basin Street has completed, and City has issued Certificates of Occupancy
for, all components of the private improvements required to be constructed by Basin Street
except for 15 of 105 total apartment units in the Riverfront Apartments and a parking structure to
serve the Riverfront.Apartment, all as shown on the Construction Plans approved for the Theater
District project ("the Project'); and,
WI-iEREAS, City staff has determined that the existing parking available to serve the
Riverfront Apartments and its associated retail/commercial development is adequate and meets
the standards required within the Central Petaluma Specific Plan area without construction of the
Riverfront Apartments parking structure; and,
WHEREAS, the 15 residential units in the Riverfront Apartments which have not been
constructed pursuant to the originally-approved Construction Plans for the Project do not
constitute. a material unfulfilled element of Basin Streets performance under the Development
Agreement and Participation Agreement, given the size and scope of the other private residential,
retail, office and commercial space that comprise the Project and which have been constructed;
and,
WHEREAS, Section 9.3 of the Development Agreement provides that amendments to
the Development Agreement which do not relate to (a) the term of the Development Agreement,
(b) the permitted uses of the property involved in the Project, (c) provisions for "significant'
reservation or dedication of land, (d) conditions, terms, restrictions or requirements for
subsequent discretionary actions, (e) the density or intensity of use of the Project, (f) the
maximum height or size of proposed buildings or (g) monetary contributions by the Developer
provided for in the Development Agreement shall not require hearing before the Plamring
Commission or City Council before the parties may execute an amendment to the Development
Agreement; and,
WHEREAS, the proposed design change, not being a material part of Basin Street's
performance under the Development Agreement, does not require formal action to amend the
Development Agreement; acrd,
WHEREAS, acceptance of the proposed design change, a copy of which is attached
hereto as Exhibit B and incorporated herein by reference, means that all Certificates of
Occupancy necessary Lor the Project have been issued, and the Development Agreement
therefore terminates by its own terms, as set forth in Section 4.3 of the Development Agreement;
and,
WHEREAS, the. Master Agreement proposed by Basin Street and attached hereto as
Exhibit A would, in addition to providing for extension of the Garage Easement, (i) accept the
Riverfront Apartments design change; (ii) terminate the Development Agreement and the
Participation Agreement such that future transferees of the property and/or the private
improvements in the Project would not be bound by the provisions, conditions, covenants and/or
warranties contained in the Development Agreement or the Participation Agreement; and (iii)
satisfy all remaining obligations oLBasin Streetregarding the Livery Stable; and,
WHEREAS, as part of the Master Agreement, Basin Street as an entity would continue
to be bound by certain conditions, covenants and warranties expressly stated in Exhibit B to the
Master Agreement,, despite termination of the Development Agreement and the Participation
Agreement; and,
Iicsol W ion No. 2008-223 N.C.S. Page Z
WHEREAS, Basin Street has caused to be prepared by a retained consultant a Petaluma
Theatre District Parking Garage Financial Analysis (Walker Parking Consultants, November
2008, "Walker Report") which values the cost to the City of replacing the 216 public spaces
provided under the Garage Easement at the end of its existing 20 year term at a sum between
$3.0 million dollars (surface parking) and $93 million dollars (parking structure); and,
WHEREAS. the Walker Keport projects that institution of a paid parking program could
permit ttte City to realize "more than $7.1 million in new revenue' over the extended period of
the Garage Easement if the paid parking progrvn were implemented; and,
WHEREAS, this action is exempt from the California Environmental Quality Act
("CEQA") pursuant to 14 California Code of Regulations, Section 15061(6)(3) because it can be
seen with certainty that there is no possibility that this action may have a significant effect on the
environment as defined mtdet• CEQA.
NOW, THEREFORE, BE IT $ESOLVF.D, by the City Council of the City of
Petaluma as Follows:
1. The recitals stated above are adopted as true and correct and tindings of the City
Council of the City of Petaluma.
2. The City Council approves the change to theTheater District Construction Plans
for the Riverfront Apartments to eliminate 15 unconstructed residential units and
the parking structure originally proposed to serve the Riverfront Apartments; as
shown in Exhibit. B attached hereto and incorporated herein by reference.
3. The City Council authorizes and directs the City Manager to execute on behalf oP
the City the Master Agreement attached hereto as Exhibit A and incorporated
herein by reference.
4. The City Council acknowledges termination of the Development Agreement and
Owner Participation Agreement identified herein and the fulfillment of Basin
Street's obligations under the Livery Stable Agreement upon execution and
recordation of the Master Agreement attached hereto as Exhibit A.
Under the poker and authority conferred upon this Council by the Charier of said City.
REFERENCE: I hereby certil)~ the foregoing Resolution was' introduced acrd adopted by the Counci I of App ve~as to
[hc City ofPetaluma at a Special meeting on the 8°i clay of December. 2008. by the ~ t'or
following vote:
City r ?orne}'
AYES`. Preitas, liarris, Nau, O'Brien. Vice Mayor Robbitt
r
NOES: Barrett. Mayor "forliatt
.ABSENT: Noire ~ /
ABSTAIN: None ~ r r:
~GG~i ~"L
AT"CES"1': _
Deputy City Clerk Mayor
Resolution No. 2008-223 N.C.S. F'age3
EXHIBIT A
MASTER AGREEMENT
THIS MASTER AGREEMENT ("Agreement") is entered into as of the 1st day of December,
2008, by and between the CITY OF PETALUMA ("City"), a municipal corporation, the PETALUMA
COMMUNITY DEVELOPMENT COMMISSION ("Agency"), and BASIN STREET PROPERTIES ("Basin
Street"), a California corporation, and PETALUMA THEATRE DISTRICT PARKING, LLC ("Parking
Owner"), a California limited liability company.
THE PARTIES ENTER into this Agreement on the basis of the following facts, intentions and
understandings:
A. City and Basin Street entered into that certain Development Agreement ("Development
Agreement") dated as of February 27, 2004.
B. Agency and Basin Street have entered into that certain Owner Participation Agreement
dated as of February 27, 2004 as amended by that certain First Amendment to Owner
Participation Agreement dated as of January 23, 2006. Such Owner Participation
Agreement and First Amendment to Owner Participation Agreement are hereinafter
collectively referred to as "Participation Agreement.''
C. City, Agency and Basin Street entered into that certain Parking Garage Easement and
Operating Agreement executed on February 27, 2004, ("Original Parking Agreement")
which was made a condition of development of the Petaluma Theater District project by
terms of the Owner Participation Agreement between Agency and Basin Street. The
Original Parking Agreement was modified to change the capacity of the easement
grantor and property owner from Basin Street to Parking Owner and permit recordation.
The modified Parking Garage Easement and Operating Agreement ~"Modified Parking
Agreement") is dated as of June 30, 2007.
D. City and Basin Street have entered into that certain relocation of livery stable letter
agreement "Livery Agreement") dated January 21, 2004.
E. The parties acknowledge that Basin Street, Parking Owner, City and Agency have
completed all of their respective obligations under the Development Agreement,
Participation Agreement, and Parking Easement (collectlvely "Existing Agreements"),
including, but not limited to, completion of all of the improvements anticipated under
the Existing Agreements, and City has issued Certificates of Occupancy to Basin Street
and Parking Owner with respect to all such improvements.
F. The pdrties further acknowledge that, although the improvements have been complete,
the parties still maintain certain contingent obligations and otherobligations to one
another as further described in this Agreement.
G. The economy, as a result of the financial crisis, has become difficult and has caused
Basin Street, the City, and the Agency to have to curtail certain programs and reduce
staff in ways that limitahe parties economic development and the provision of services to
the community.
Resolution No-2008423 V.C.S. Page 4
H. The parties desire to explore opportunities for economic development in the community
as more specifically set forth in this Agreement, and the parties desire to terminate the
Development Agreement, the Participation Agreement and the Livery Agreement
except as specified herein and to possibly amend the Modified Parking Agreement as
specified herein.
NOW, THEREFORE, in consideration, and mutual promises and covenants of the parties,
the parties hereto agree as follows:
1. Amendment. The Development Agreement and Owner Participation Agreement
are hereby amended such that the original design for the Waterfront Apartment portion of the
Theater District project, which included 105 apartment units and a three story parking structure, is
hereby revised and replaced with the existing as-built design attached hereto as Exhibit A,
which includes 90 apartment units served by covered parking in lieu of the parking structure.
2. Development Aoreement. The parties acknowledge that the Development
Agreement is, as of the date first above written, terminated immediately following the
amendment specified in Section 1, and the parties further acknowledge that the termination is
pursuant to Section 4.3 of the Development Agreement in that final Certificates of Occupancy
for the project have been granted by the City to Basin Street.
3. Owner Participation Agreement. The parties hereby terminate the Owner
Participation Agreement except for those obligations of the parties as specified in Exhibit B
attached hereto and incorporated herein by reference thereto, and City hereby accepts the
improvements pursuant to Section 2.6.6.2 and shall take all actions necessary to effectuate such
acceptance.
4. Modified Parking Aareement. The parties hereby agree to explore amending the
Modified Parking Agreement on the following terms:
a. Consultant. Basin Street, at its sole cost and expense, shall spend up to $10,000
on a parking consultant mutually acceptable to City and Basin Street to explore
developing income streams from the existing parking structure ~"Structure"). The
parties shall select a parking consultant within thirty (30) days of execution of this
Agreement, and the City designates City Manager, on City's behalf, as having
the right to make a decision on the parking consultant.
b. Existina Commitments. During such thirty (30) day period, the City, Agency, Basin
Street and Parking Owner shall explore and catalog all of the existing parking
commitments in the Structure the parties have made to third parties, and they
shall jointly prepare a statement of existing parking conditions for the parking
consultant.
c. Task. The parking consultant shall be requested to recommend methodologies
for developing income from the Structure consistent with the existing parking
conditions.
d. Profit Sharing. The parties agree that should they find a mutually acceptable
parking program that can develop profit from the Structure, the parties shall
share the net profits 50% each. From time to time, the parties may amend the
parking program and alter the same as they deem mutually acceptable, but
with no change in the profit split. Net profits shall be all profits calculated
Rcsolwion No, 2008-223 N.C.ti. Page 5
annually from the Structure after repayment to Basin Street of expenditures for the
parking consultant and payment of all expenses in connection with the
development and implementation of any parking fee program, including, but not
limited to, gates, meters, enforcement, security and accounting expenses of the
Structure diiectly related to the parking program, but not pre-existing taxes,
insurance, maintenance and any existing debt on the Structure. The City's share
of annual net profits from the parking program will be disbursed by or before
each. year. In considering whether to institute a parking program the
parties shall endeavor to avoid instituting a parking program that negatively
affects the revenue received by any of the parties from the downtown tenants
and owners.
e. Term. The parties agree that the term of the Modified Parking Agreement shall be
extended to a term of sixty (60) years.
f. Amendment. The parties agree that they shall amend the Modified Parking
Agreement to take into account any mutually acceptable amendments to the
Modified Parking Agreement. as a result of their determination regarding income
streams from the Structure by executing, acknowledging and recording
contemporaneously with the execution hereof the First Amendment to Modified
Parking Agreement attached hereto as Exhibit C.
g. Livery Agreement. The Livery Agreement is hereby terminated, and Basin Street
specifically acknowledges that City may use profits City derives from the Structure
forsuch uses as the City determines in City's sole discretion.
1. Bond Requirements. The City, Agency, Basin Street-and Parking Owner
acknowledge that Basin Street discovered one bond obligation that Basin Street had not
fulfilled, but all parties now acknowledge that Basin Street has delivered a bond for the public
improvements to City and all bond obligations have been met by Basin Street and Parkirig
Owner.
2. Economic Development. Given the economy, the parties shall work in good faith
to determine mutually acceptable methods for increasing the economic benefits-that the
parties derive from the developments referenced in the Existing Agreements.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
above written.
Dated: CITY OF PETALUMA
By:
John Brown, City Manager
Attest:
By:
Claire Cooper, City Clerk
Approved As to Form:
liesolution No. 2008-223 N_C S. Nage 6
By:
Eric Danly, City Attorney
Dated: BASIN STREET PROPERTIES,
a California corporation
By:
Matthew T. White, President
Dated: PETALUMA COMMUNITY DEVELOPMENT
COMMISSION
By:
John Brown, Executive. Director
Approved As to Form:
By:
Eric Danly, Agency Counsel
Dated: PETALUMA THEATRE DISTRICT PARKING LLC,
a California limited liability company
By: G&W Ventures, LLC,
a California limited liability company
By:
Matthew T. White, Manager
Resolution No. 2008-223 N.C.S. Paee 7
y
~ErE~unn,a~ivEr - _ ~ o
I ; - ~3,
u
L
_ pm [ - _
[ ! ~ 1
- t•, F y armors 1 ~i
i rnrx i U iv i~ i of ~ I I :W~' ^'[:w } !J '1 ~ ( t ~ ~o
r
~ D
I
Gt{~Y}l' ' rT • ~ ~ a I ~G ~ i ~
~ I
E I ,.i~) its i
~ ~ :Yi{'-G1'~~~ [ss_css:x ~ ~ _i._I 1 I I ~ I ~ ! _ ~ I s *„t^. ~ 'i-. f~ [ i ~A~
• - 1
~ i~~r =:4 -1 5.~ I L ~.-u.~ _ _ T•}TF; 'W ~ "'~I ~ ~ ~.~I I ~I r'! APA RTMU
NTS Z-
~ , I ~ I - I Smw
xa~ii nrC41 [ of i I! .4 ParA[.urxA, rA
c
O ~ 1 [-l I:a...u...[ I ~ rc _s.~ • ~ ' 1.~..r l t N
w 4 [ o
~ t , .'.ui ~ i ~s'm[,rrr~e"T.'. f~ _ . " [ ~o ~ta
- 2003030
X _ t ~ ~
i~----»r = ~-rFIR~TS
~ - ~ I~ 1-~2T~, z
ur -
AtC9. ~ ARCItlTCCTURA6 SITE P4AN w 1
_ (Bl14Dllq iVPE A BULb01G TYPE C I PfIOJECi BUAMARY
~ - I
m. „n..
„ ~-.o.-.a, I 1
n
6UlDIN53 rYr' a 6uipNO it PE v' DYERALL 1'AF9.P10 SUNMRY a-v.-+•
'.w.
u
EXHIBIT B fto Master Agreementl
The parties acknowledge that the following provisions contained in the Participation
Agreement shall remain in full force and effect for the term provided in the Owner Participation
Agreement.
1. Section 2.6.5 (Warranty Provisions)
2. Section 3.8 (Indemnity Provisions)
3. Section 4.2 (Obligation to Refrain from Discrimination Provisions)
4. Sections 7.1 and 7.2 (Hazardous Material Provisions)
5. Section 8.1 (Relocation Holds Harmless and Indemnity Provisions)
b. Section 10.1 (Indemnity Provisions)
Resolution No. 2008-223 N.C.S. Page 9
EXHIBIT C fto Master A9reementl
Recording Requested by
And Return To:
City Clerk's Office
City of Petaluma
1 1 English Street
Petaluma, CA 94952
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
FIRST AMENDMENT TO
.PARKING GARAGE EASEMENT AND OPERATING AGREEMENT
Petaluma Theatre District
(Petaluma, California)
THIS FIRST AMENDMENT TO PARKING GARAGE EASEMENT AND OPERATING AGREEMENT
(the "First Amendment") is made and entered into as of the _ day of December, 2008, by and
among the City of Petaluma, a municipal corporation ("City"), the Petaluma Community
Development Commission ("Agency"), Basin Street Properties, a California corporation ("Basin
Street"), and Petaluma Theatre District Parking, LLC, a California limited lidbility company
("Parking LLC"). City, Agency, Basin. Street and Parking LLC are individually referred to in this First
Amendment as a "Party" and collectively as the "Parties".
RECITALS
A. The Parties entered into that certain Parking Garage Easement and Operating
Agreement dated as of June 30, 2007 (the "Agreement"). The Agreement was recorded in the
Official Records of Sonoma County on August 20, 2007 as Instrument No. 2007092134.
B. The First Amendment is being entered into pursuant to that certain Master
Agreement between the Parties of even date herewith.
C. The Parties wish to amend the Agreement as set forth in more detail below.
AGREEMENT
NOW, for good and valuable consideration and other mutual covenants, the Parties
hereby agree as follows:
Extension of Term. The 20-year term of the easement granted in Section 3~a) of the
Agreement, and the 20-year term of the Agreement as set forth in Section 29 of the Agreement,
are hereby extended for an additional period of forty (40) years, for a total term of sixty (60)
years.
Resolution Nu. 2008-223 N.C.S. Pxge 10
Maintenance. Notwithstanding Section 7 of the Agreement, expenses incurred by
Parking LLC in connection with the generation or collection of parking revenue from the Parking
Garage shall be subject fo reimbursement out of revenue generafed from the Parking Garage,
as more fully set forth in the Master Agreement.
Parking Fees. Without limiting Parking LLC's existing rights fo charge for parking in the
Parking Garage, Parking LLC shall have the right fo charge for parking in the Parking Garage in
accordance with any shared revenue parking program established pursuant to the Master
Agreement.
Counterparts. This First Amendment may be executed in two or more counterparts,
which when taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the day and
year first above written.
Dated: CITY OF PETALUMA
By'.
John Brown
City Manager
Attest:
By:
City Clerk
Approved As to Form:
By:
City Attorney
Resolution No. 2008223 N.C.S. Page I I
Dated: BASIN STREET PROPERTIES,
a California corporation
By:
Matthew T. White
President
Dated: PETALUMA COMMUNITY DEVELOPMENT
COMMISSION
By:
John Brown
Executive Director
Approved As to Form:
By:
Agency Counsel
Dated: PETALUMA THEATRE DISTRIC7PARKING, LLC',
California limited liability company
By: G&W Ventures, LLC,
a California limited liability company
By:
Matthew T. White
Manager
Resolution No. 2008-223 N.C.S. Pngc 12
STATE OF CALIFORNIA )
COUNTY OF )
On , 2008 before me, ,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 tome that
he/she/they executed the same in his/her/their authorized capacity(iesJ, 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)
1176262.1
Resolution No. 2008-223 N.CS. F?agc 13
EXHIBIT B
~~I i ~ i ~ ~ "
~ _ t ~~'~I ~ it: ~
~ ;e it `
a ~ i 1 .i ~ 1
~#i ~ ~ ~ ~ ~ ~ I ~ - 't /°L X71'
6~ ~ f 1 ( 1~
! € i I I tj I 1 Sea
r Y' tl]I .J` ~i
(111' ` ~ iI it
~ ' i ~ I
y ~ -
ep~e o~ 194 i4q Ito i ~ t ~ m
y ~ °m S
3 F ~
T I` ~ r S A
~ I i i iil 'I
. I it Q-- 1 ~ i 7J
psi ~ f t 11J~ ~R ~ ~ n I ~ . ~
's '
i iT ¢ e W~ W a_ ~ I
F ~0 1 ~ A St
€ ~ ~ I ~ -i
~ ~ ~ ~ - ~ ~ ~ 1~ ~ ~
}
~ '
g€ , ~~s§{~ A ~ y
~ t 11
eXR in
eps p3~3i ~ fi ea ~ ~ 1~ $ n " C g' 1 I
1tTt~r ~9~~R#Q~~gS~C,~ ~ ~I r%a L
E{ ~~3~~~pY ~~3 ib ~ ~ i 1) c; , I I ,S Iz''"~ Pu ~ ~ III
*i.
Y if~ a~ n i I~ ~ ul~ t '$I a":- a t'~ i ~
e € 5 ti ~ i
x i~ ~~€a~~ !e 8~ ~ I a- I' ~ llJ ~ i
A e~a 4 €IE s$s m I~ ~ 9 n e~~9 I
€'~~a 1~~ Y~ m fill u _ ~ ~ ~ sl(d;.~d I~
~p t ~i~~ li r ~i ~ L ~ t'- 'C
p S~ ~ ~ ~ ~ ~ ~ ~ _ _ - .i_
u
Op ~ F ~ a€ ` - -
3, P_ i 1 i,_ - i--
` ~ s' a I
Y ! ~ 6v ~ ( ~ , ter, f-- ~ - -
} i ~t t~'" ~ Am ~ Iy(~.I] ~ I 1 i' ~g q~li1
~ r ~ I i i ~ ~ ~ ~ ~~i~
I
1175368.1
Kesolution No. 2008-223 N.CS, Page 14