HomeMy WebLinkAboutOrdinance 2318 N.C.S. 01/05/20091
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EFFECTIVE DATE ORDINANCE NO. 2318 N.C.S.
OF ORDINANCE
February 5, 2009
Introduced by Seconded by
David Glass Mike Healy
ORDINANCE AUTHORIZING EXECUTION OF FIRST AMENDMENT TO PARKING GARAGE
EASEMENT AND OPERATING AGREEMENT AND ACCEPTING EASEMENT
WHEREAS, the City of Petaluma ("City") and Basin Street Properties ("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
16 Street entered into that certain Owner Participation Agreement dated as of February 27, 2004 as
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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";
and,
WHEREAS, by letter agreement between Basin Street and the City dated January 21, 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
Ordinance No. 2318 N.C.S. Page I
and maintenance of the Livery Stable from revenue sources to be determined by Basin Street;
2 and,
3 WHEREAS, Basin Street has, relocated the Livery Stable to a permanent location on City
4 property in accordance with the Livery Stable Agreement; and,
5 WHEREAS, to satisfy its obligation under the Livery Stable Agreement to negotiate to
6 establish funding for ongoing restoration and maintenance of the Livery Stable, Basin Street has
7 proposed a Master Agreement with the City and the Agency, described further below, which,
8 among other things, provides for extending by 40 additional years at no cost to the City the
9 present term of an existing 20 year Parking Garage Easement and Operating Agreement
10 recorded as Document No. 2007092134 in the Official Records of Sonoma County ("Garage
1 I Easement') executed between Basin Street and the City, which provides public parking spaces
12 and public access to them in the 'D' Street garage constructed as part of the Project; and,
13 WHEREAS, Basin Street has completed, and City has accepted, by Resolution No. 2008-
14 220 N.C.S. adopted December 1, 2008, the public improvements required by the Development
15 Agreement and Participation Agreement; and,
16 WHEREAS, Basin Street has completed, and City has issued Certificates of Occupancy for
17 all components of the private improvements required to be constructed by Basin Street except
18 for 15 of 105 total apartment units in the Riverfront Apartments and a parking structure to serve
19 the Riverfront Apartment, all as shown on the Construction Plans approved for the Theater
20 District project ("the Project"); and,
21 WHEREAS, City staff has determined that the existing parking available to serve the
22 Riverfront Apartments and its associated retail/commercial development is adequate and
23 meets the standards required within the. Central Petaluma Specific Plan area without
24 construction of the Riverfront Apartments parking structure; and,
Ordinance No. 2318 N.C.S. Page 2
WHEREAS, the 15 residential units in the Riverfront Apartments which have not been
2 constructed pursuant to the originally approved Construction Plans for the Project do not
3 constitute a material unfulfilled element of Basin Street's performance under the Development
4 Agreement and Participation Agreement, given the size and scope of the other private
5 residential, retail, office and commercial space that comprise the Project and which have been
6 constructed; and,
7 WHEREAS, Section 9.3 of the Development Agreement provides that amendments to the
8 Development Agreement which do not relate to (a) the term of the Development Agreement,
9 (b) the permitted uses of the property involved in the Project, (c) provisions for "significant"
10 reservation or dedication of land, (d) conditions, terms, restrictions or requirements for
11 subsequent discretionary actions, (e) the density or intensity of use of the Project, (f) the
12 maximum height or size of proposed buildings or (g) monetary contributions by the Developer
13 provided for in the Development Agreement shall not require hearing before the Planning
14 Commission or City Council before the parties may execute an amendment to the
15 Development Agreement; and,
16 WHEREAS, the proposed design change, not being a material part of Basin Street's
17 performance under the Development Agreement, does not require formal action to amend the
18 Development Agreement; and,
19 WHEREAS, acceptance of the proposed design change means that all Certificates of
20 Occupancy necessary for the Project have been issued, and the Development Agreement
21 therefore terminates by its own terms, as set forth in Section 4.3 of the Development Agreement;
22 and,
23 WHEREAS, the Master Agreement proposed by Basin Street would, in addition to
24 providing for extension of the Garage Easement, (i) accept the Riverfront Apartments design
Ordinance No. 2318 N.C.S. Page 3
I change; (ii) terminate the Development Agreement and the Participation Agreement such that
2 future transferees of the property and/or the private improvements in the Project would not be
3 bound by the provisions, conditions, covenants and/or warranties contained in the
4 Development Agreement or the Participation Agreement; and (iii) satisfy all remaining
5 obligations of Basin Street regarding the Livery Stable; and,
6 WHEREAS, as part of the Master Agreement, Basin Street as an entity would continue to
7 be bound by certain conditions, covenants and warranties expressly stated in Exhibit B to the
8 Master Agreement, despite termination of the Development Agreement and the Participation
9 Agreement; and;
10 WHEREAS, Basin Street has caused to be prepared by a retained consultant a Petaluma
11 Theatre District Parking Garage Financial Analysis ( Walker Parking Consultants, November 2008,
12 "Walker Report") which values the cost to the City of replacing the 216 public spaces provided
13 under the Garage Easement at the end of its existing 20 year term at a sum between $3.0 million
14 dollars (surface parking) and $9.3 million dollars (parking structure); and,
15 WHEREAS, the Walker Report projects that institution of a paid parking program could
16 permit the City to realize "more than $7.1 million in new revenue" over the extended period of
17 the Garage Easement if the paid parking program were implemented; and,
18 WHEREAS, the First Amendment to Parking Garage Easement and Operating Agreement
19 extending the term of the Garage Easement is attached hereto as Exhibit A and incorporated
20 herein by reference.
21 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PETALUMA AS
22 FOLLOWS:
23 Section 1. The City of Petaluma accepts the easement for public access and parking
Ordinance No. 2318 N.C.S. Page 4
I described in the First Amendment to Parking Garage Easement and Operating Agreement
2 attached hereto as Exhibit A and authorizes and directs the City Manager to execute and have
3 recorded on behalf of the City said First Amendment to Parking Garage Easement and
4 Operating Agreement,
5 Section 2. This action is exempt from the California Environmental Quality Act
6 ("CEQA") pursuant to 14 California Code of Regulations, Section 15061 (b) (3) because it can be
7 seen with certainty that there is no possibility that this action may have a significant effect on the
8 environment as defined under CEQA.
9 Section 3. If any section, subsection, sentence, clause, phrase or word of this ordinance
10 is for any reason held to be unconstitutional, unlawful or otherwise invalid by a court of
11 competent jurisdiction or preempted by state legislation, such decision or legislation shall not
12 affect the validity of the remaining portions of this ordinance. The City Council of the City of
13 Petaluma hereby declares that it would have passed and adopted this ordinance and each
14 and all provisions thereof irrespective of the fact that any one or more of said provisions be
15 declared unconstitutional, unlawful or otherwise invalid.
16 Section 4. This ordinance or a synopsis of it shall be posted and/or published for the
17 period and in the manner required by City Charter.
18 Section 5. This ordinance shall become effective thirty (30) days after the date of its
19 adoption by the Petaluma City Council.
20 INTRODUCED, AND ORDERED posted/published this 8'h day of December 2008.
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22 ADOPTED this 5ih day of January 2009.
23 Ayes: Vice Mayor Barrett, Glass, Harris, Healy, Rabbitt, Renee, Mayor Torliatt
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25 Noes: None
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27 Abstain: None
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Ordinance No. 2318 N.C.S. Page 5
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Absent:
ATTEST:
None
�I 0A Lu
Claire Cooper, City Clerk
APPROVED ASTQ FORM:
Eric W. Danly, C4 Attorney
Ordinance No. 2318 N.C.S.
Page 6
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EXHIBIT A
Recording Requested by
And Return To:
City Clerk's Office
City of Petaluma
11 English Street
Petaluma. CA 94952
EXEMPT FROM RECORDING FEES PEF
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 liability 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.
Ordinance No. 2318 N.C.S.
Page 7
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 to reimbursement out of revenue generated from the Parking Garage,
as more fully set forth in the Master Agreement.
Parking Fees. Without limiting Parking LLC's existing rights to charge for parking in the
Parking Garage, Parking LLC shall have the right to charge for parking in the Parking Garage in
accordance with any shared revenue parking program established pursuant to the Master
Agreement.
9 Counterparts. This First Amendment may be executed in two or more counterparts,
10 which when taken together shall constitute one and the same instrument.
11 IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the day and
12 year first above written.
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CITY OF PETALUMA
By:
John Brown
City Manager
Attest:
By:
City Clerk
Approved As to Form
By:
City Attorney
Ordinance No. 2318 N.C.S.
Page 8
Dated:
Dated:
BASIN STREET PROPERTIES,
a California corporation
M.
Matthew T. White
President
PETALUMA COMMUNITY DEVELOPMENT
COMMISSION
82
John Brown
Executive Director
Approved As to Form:
il
Agency Counsel
Dated: PETALUMA THEATRE DISTRICT PARKING, LLC,
California limited liability company
By: G&W Ventures, LLC,
a California limited liability company
M
MatthewT. White
Manager
Ordinance No. 2318N.C.S.
Page 9
STATE OF CALIFORNIA
COUNTY OF
On 1 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 to me that he/she/they executed the some 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 persons) 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.
(seal)