HomeMy WebLinkAboutAgenda Bill 5.D 05/03/2004•
CITY.OF PETALUNVIA, CALIFORNIA
AGENDA BILL
MAY ® 2-00
Agenda Title: MeetingDate: May 3, 2004
Discussion And Action Regarding The Introduction Of An
Ordinance .Authorizing (I) Execution Of An Option Agreement Meetinwr`Time: ®3:00 PM
Providing Regency Realty Group, Inc: An Option To Acquire A ❑ 7:00 PM
NonexclusiVe Pedestrian ..And Vehicular.Access Easement Between
,East Washington Street And, The Kenilworth School. ,Site, (II)
Execution Of An Easement Agreement Following Satisfaction Of
All Required Conditions, And (III)' Negotiation And Execution Of
An Amendment To The Fairgrounds Association Lease. In Order. To
Exclude The Easement Area And; The Skateboard/Solar Collector .
Area And Add The Payran Street Firehouse Property To The Leased .
Premises
Cateeory (check one): ❑ Consent Calendar ❑ Pulblie Bearing ® New Business
❑ Unfinished Business ❑ Presentation
Department: Director: .Contact Person: Phone Number:
ED &.Redevelopment Paul Marangella Paul Marangella 778-4581
Cost of Proposal: 0 Account Number: NA
Amount;Bud2eted: 0 Name of Fund: NA
Attachments to Agenda Packet Item:
1. - Ordinance authorizing (a) execution of an Option Agreement providing Regency Realty Group, Inc.
an option to acquire a nonexclusive pedestrian and vehicular access easement between East
Washington Street arid the :Kenilworth. School Site, (b) execution of an Easement Agreement
pursuant to which the Easement would be conveyed to Regency upon satisfaction of all required
conditions and Regency'sexercise of the Option, and (c) negotiation and execution of a Lease
Amendment amending the Fourth District Agricultural Association lease to exclude the Easement
Area and the Skateboard/Solar Collector Area and to add the Payran Street Firehouse property to
the leased premises.
Exhibit I —Option Agreement with Exhibit A (Easement Area), Exhibit A-1 (Skateboard/Solar
Panel Area); Exhibit.B (Easement Agreement), and Exhibit C (Memorandum of Option)
Exhibit'II - Payran Fire Station Property
2. Resolution 9773'17' Kenilworth Recreation Master Plan
3. Excerpt Draft Retail Strategy
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Summary Statement:
Over the past several years, the Petaluma School District has attempted to sell the Kenilworth School site
in order to raise funds for the construction of a new school on the East side of town, near the G&G Market.
Originally, the HUB made a successful bid to'purchase Kenilworth. But with a decline in the economy, the
HUB failed to exercise 'its option to purchase the site. The School -District then turned to the City of*
Petaluma for assistance. While the City was unable to meet the School District's financial objectives, it
was able to find an interested: buyer for the site, Regency Realty Group, Inc. (RRG).
RRG then entered.into an agreement to purchase the. Kenilworth site, agreeing,to complete its due diligence
within 90 days. RRG's option to purchase the Kenilworth site will lapse on May 181h. RRG has
determined that the current access to the site is inadequate, and that retail/mixed use development of the
site will .require wider and nmore direct access from East Washington Street to the Kenilworth School site.
The preferred access would be located over what,is.now the eastern portion of the Park and Ride lot, owned
in fee by the City of Petaluma. In order to provide .an access easement in that location, the lease between
the City and the Fourth District Agricultural Association .(Association) would need to be amended to
exclude -the Easement Area from the leased premises. The Fair has agreed in ,principle to a lease
amendment, contingent upon a .number of. conditions. Among other concessions, RRG'has agreed to pay
monetary compensation to the Association. and to undertake measures to ensure that Park & Ride and Fair
patrons have access to replacement parking as analternative to the spaces that would, be omitted from the
Fairground lease. In addition, the Association has. requested that the City add the Fire House, property on
Payran Street to the premises covered by the lease.
RRG has indicated that without an access easement, the purchase of the .Kenilworth .School site is
economically infeasible. The purpose of this item is to support both the School District's construction of a
new school and the redevelopment of the Kenilworth School site by ,granting RRG an option to acquire a
nonexclusive easemenv for pedestrian and vehicular access to the Kenilworth site. Execution of the Option
Agreement will, enable RRG to purchase the Kenilworth site thus allowing the School District to use the0
sale proceed&to complete construction of a new junior high school in time for the,20,05 school year.
The proposed Option Agreement provides that the` option is exercisable only upon. satisfaction of a number
of conditions; 'including the execution of an amendment �to the Fairgrounds lease; completion of
environmental review :and the issuance, of approvals for development of 'the Kenilworth School site. _If the
proposed development .dooes not include at least 300,000 square feet of retail space, the exercise price will
be' the fair market, value of the easement area and the leasehold interest in the Firehouse Property.. The
proposed Easement Agreement, which would govern the use of the Easement if.the Option is exercised,"
provides that RRG will be responsible for construction, installation and maintenance of the roadway,
sidewalks, landscaping, and lighting in the Easement Area.
The Option Agreement does not obligate the City to grant any approval or authorization. required for the
development of the Kenilworth School site or for the easement area. The Agreement provides that the
easement would .terminate if the City determines to construct a public street providing access to the
Kenilworth site substantiahy comparable to the access that would be provided by the easement.
Recommended City Council Action/SuLL)ested Motion:
It is recommended that the City Council hold the first reading of the attached ordinance authorizing
execution of the Option Agreement, execution of the Easement Agreement upon satisfaction of all required
conditions, and negotiation and execution of .a Lease Amendment, and pass the Ordinance to its second
reading .on May 17, 2004.
Reviewed by Finance Director:, Revie ed byityrney: A r Citv Manager:
Date: te: / Date: •
Today's Date: _ Revision ff aAAXa evised: File 0o- de'-'
0 ^ /r� 8/0 ^ _.µ 'HAWord\Kenilworth=Fair¢r6unds\StaffRenortEasementOotion
'-- - `t tttt AereementFina1050304'DOC
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CITY OF PETALUMA, CALTFORN'IA
MAY 3, 2004
AGENDA REPORT
FOR
DISCUSSION AND ACTION REGARDING THE INTRODUCTION OF AN
ORDINANCE AUTHORIZING (I) EXECVTION'OFAN OPTION AGREEMENT
PROVIDING REGENCY REALTY GROUP, INC. AN OPTION TO ACQUIRE A
NONEXCLUSIVE PEDESTRIAN AND'VEHICULAR;ACCESS EASEMENT BETWEEN
EAST WASHINGTON STREET AND THE, KENILWORTH SCHOOL, SITE, (II)
EXECUTION OF AN EASEMENT AGREEMENT' FOLLOWING. SATISFACTION OF
ALL REQUIRED CONDITIONS,_ AND'(III) NEGOTIATION AND EXECUTION OF AN
AMENDMENT TO THE FAIRGROUNDS ASSOCIATION LEASE IN ORDER TO
EXCLUDE THE EASEMENT' AREA AND THE SKATEBOARD/SOLAR COLLECTOR
AREA AND ADD. THE PAYRAN `STREET FIREHOUSE PROPERTY TO THE LEASED
PREMISES
1. EXECUTIVE SUMMARY.;
Over the past several years, the Petaluma School. District has: attempted to sell the
Kenilworth School site 'in order to raise funds for the construction of a new .school on the
East .side of town, near the G&G Market. Originally, the HUB made a successful bid to
purchase Kenilworth. But with a decline in the economy, the HUB failed to exercise its
option to purchase the site. The School District then turned to the City of Petaluma for
assistance. While the City was unable to meet, School District's financial objectives, it
was able to find an.interested buyer for the site, Regency Realty Group (RRG).
RRG then entered into an agreement to purchase the Kenilworth site, agreeing to
complete its due diligence within 90 days. RRG's option, to purchase the Kenilworth site
will lapse on May 10th., RRG has determined. that the current access to the site is
inadequate and that retail/mixed use development of the' site will require wider and more
direct .access from East Washington Street ,to .the Kenilworth School site. The preferred
access would be located over what is now the eastern portion of the Park. and Ride Jot,
owned 'in 'fee by the City of Petaluma. In order- to provide an access easement in that
location,- the 'lease between. the City and the Fourth District Agricultural Association
(Association) needs to be amended to exclude the Easement Area from the leased
premises: The ;Fair has agreed in principle to a lease amendment, contingent upon a
number of conditions.- Among other concessions; RRG has agreed to pay monetary
compensation to. the Association and to undertake measures to ensure that Park & Ride
and Fair. patrons `have access to replacement parking as an alternative to the spaces that
would be omitted from the Fairground lease. In addition, the Association has requested
that the City ,add1the Fire House jproperty on Payran Street to the premises covered by the
lease.
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RRG has indicated that without an access easement, the purchase of the Kenilworth
School site is economically infeasible. The purpose of this item is 'to support both the
School District's construction of �a new school and the redevelopment of'the Kenilworth
School site by granting RRG .an, option to acquire a nonexclusive pedestrian and vehicular
access easement. Provision of the option will make RRG's purchase of. the Kenilworth
site feasible thereby facilitating .the School District's access to funds necessary for the
construction of a new junior high.school on the east side for occupancy in 2005..
The proposed Option Agreement provides that the Option is exercisable only upon
satisfaction of a number of conditions, including execution of an, amendment to the
Fairgrounds lease to exclude the Easement Area from the leased premises; the completion
of environmental review, and the issuance of approvals for development of the
Kenilworth School site. If the, proposed development does not. include at least 30.0,000
square feet of retail space; the exercise price will be the fair market, value.,of the easement
area and the 1'easehold 'interest' in the Firehouse Property. The proposed Easement
Agreement which is attached as Exhibit B to the Option Agreement and which would
govern the conditions of use if the Option is. exercised, provides that RRG will be
responsible for construction and maintenance of the roadway, sidewalks, lighting and
landscaping in the Easement Area.
Neither the execution of the Option Agreement nor, the grant, of the option pursuant to the
'Easement Agreement obligates ,the City to grant any, approval or authorization. required
.for the development of the -Kenilworth Schools :site or the Easement Area. The
Agreement provides,that the easement would terminate if the City determines to .construct
a ,public street providing access to the Kenilworth site substantially comparable to the.
access that would be provided by the easement.
2;1 BACKGROUND:
On .January 1„ 1972, the City-of'Petaluma leased the current Fair site, to the 4tn District
Agricultural Association. Over the years since, there have been several modifications to
the lease. Another lease amendment is now required in order to provide RRG with an
access easement- to the Kenilworth School site. The Fair has agreed .in principle to the
amendment; subject to severalf conditions, and RRG has agreed to the following: -
To replace the parking, spaces that are currently located in the Easement Area,.
RRG will either provide the Fair with an easement for parking in its, commercial
lot or will pave a sufficient portion of the Fairgrounds Parking. Lot B to replace
the lost parking spaces.
0 RRG will provide the Fair with an access easement to Lindberg Lane.
® RRG will provide signage for the Fair on the shopping center signage RRG will
install on Washington Street (subject t&City and CalTrans approval).
® RRG will Y a approximately roximatel $150 000 to the Fair. •
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In .addition, in exchange for its agreement to exclude the Easement Area and the
Skateboard and Solar Collector Area from the Lease, the Fair Association has asked
the City of Petaluma to add to the leased premises the Fire House property on Payran
'Street when :it is vacated by COTS after the City's Sewage Treatment Plant is
relocated and the,ineals program.is discontinued.
As part, of a 1996 amendment to the .Association Lease, the 'County provided assistance in
paving the Park & Ride Lot. In order to alter the Park & Ride lot, it will be necessary to
obtain the consent of the Sonoma County Transit Manager. Staff has contacted the
Transit Manager, who indicates that he: will supg.ort the modification because the portion
of the Park & Ride lot required for the easement is seldom used.
In November'1:907, the -City Council passed Resolution'97-347, approving'the Kenilworth
Recreation Master Plan (Attachment 2). The plan did not contemplate the sale of the
:school property'to a developer for mixed -use retail development, but instead assumed that
the school would continue to exist in its current location. 'The School District, the City's
Recreation Director and the various sports leagues are working collaboratively to relocate
the Skateboard Park .and the recreational .uses that are currently located on the school site
to other locations.
In November 2003, the Petaluma Community Development Commission (PCDC)
received a,'Zraft Retail Strategy in .which the KenilwordVFairgrounds site was
recommended for retail. uses that would reduce or eliminate the retail leakage to adjacent
cities. Attachment 3 consists of the relevant section 'of the Draft Retail Strategy.
3. ALTERNATIVES:
A. Pass First -Reading of the Ordinance: Under this option, the City Council would
hold the first reading of the proposed ordinance authorizing providing RRG with an
option to acquire a, nonexclusive easement,, authorizing execution of an easement
agreement upon satisfaction of all required .conditions, and authorizing the negotiation
and execution -of, ah :amendment to the Fairgrounds lease, and pass the ordinance to
the .second reading on. May 17ci,
B.. Decline to Fold the First' Reading: Under- this option, the City Council would defer
consideration of the ordinance. This alternative will make the sale of the Kenilworth
Schoolsite, 'infeasible, as ._RAG would not have adequate access to the site. As a
result, the School District will lack the. finds meeessary to .begin construction of a new
junior high school.
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4. FINANCIAL IMPACTS: 0
The addition of the .Fire House property on Payran Street to the'.Fair, Association lease
would reduce the amount of rent. that the Citymight be able to charge a future tenant for
the 16 years remaining in the term of the lease. Assuming that $2,000 per month could
be generated,. this would amount to approximately $384,000 over 16 years, without any
inflationary adjustments.
® Sales Tax: 'Should retail development ultimately occur on the. Kenilworth site,
potential sales tax of approximately $600,000 to $1,000,000 could be received
annually.
a Property'Tax Increment: With regard to PCDC property tax increment, assuming
a development value of $60,000,000, annual receipts. would be approximately
$4,00,000.
S. CONCLUSION:
Petaluma Schools would like to build a new school on the East side of 'town. The only
way the School. District can finance construction is to sell the, Kenilworth School site.
RRG has an :option to purchase the site, but in order for RRG's purchase to, be
economically feasible; RRG needs an access easement across the Park &, Ride Lot.
Provision of an access easement across the City -owned lot requires an amendment of the
Fairgrounds lease to exclude the easement area and the skateboard/solar collector area.
The Fair Association is amenable to providing an easement, provided that certain
conditions are met, including the addition of the Payran fire station property to the leased
pr`emises.. RRG has agreed to satisfy the conditions that are within .RRG's control,
including payment of a sum of money, installation of signage; and provision of
replacement parking and an easement to Lindberg Street. The County of Sonora supports
provision of an easement across a seldom -used portion of the: Park. & Ride- Lot, The
City's grant to RRG of an option to acquire an easement across the . Park; & Ride Lot
would make RRG's purchase of the Kenilworth School site economically feasible and
thus facilitate the School'District's construction of a new school.
6. OUTCOMES OR PERFORMANCE MEASUREMENTS' THAT WILL IDENTIFY SUCCESS OR
COMPLETION:.
The City Council's, adoption of an ordinance (i) authorizing execution of an option,
agreement pursuant to which RRG. may acquire a pedestrian and vehicular easement
providing access to .the Kenilworth School site, (iii) upon satisfaction of all required
conditions, -authorizing execution of an easement agreement that would "require RRG to
construct and maintain the roadway and improvements in the easement :area, and (iii)
authorizing negotiation and execution of an amendment to. the Fairgrounds lease pursuant
to which.the Easeinent Area and the skateboard/solar collector area will be excluded from
the lease and the. Payran Firehouse property will be added to the leased premises.
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7. RECOMMENDATION-:
It is recommended that the City Council Bold the first reading of the attached ordinance
authorizing execution of .the Option Agreement; execution of the. Easement Agreement
upon satisfaction of all required conditions; and negotiation and execution of a Lease
Amendment, and pass the Ordinance to its second' reading on May 17, 2004.
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Attachment I
AN ORDINANCE OF THE COUNCIL OF THE CITY OF PETALUMA
AUTHORIZING EXECUTION OF AN OPTION AGREEMENT WITH REGENCY
REALTY GROUP, INC. FOR A NONEXCLUSIVE VEHICULAR AND PEDESTRIAN
ACCESS EASEMENT, AUTHORIZING. EXECUTION OF AN EASEMENT
AGREEMENT - UPON SATISFACTION OF ALL REQUIRED CONDITIONS, AND
AUTHORIZING NE.G.OTIATION AND EXECUTION OF AN AMENDMENT TO THE
. FAIRGROUNDS ASSOCIATION LEASE
Introduced by
ORDINANCE NO. _ N.C.S.
Seconded by
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS
FOLLOWS:
WHEREAS, the City of.:Petaluma is the owner of the Easement Area described in Exhibit
A to the Option Agreement attached -hereto as Exhibit I; and
WHEREAS, Regency Realty Group, Inc. (RR(3) has an option to purchase the Kenilworth
School Site from the Petaluma Joint Union High School District; and
WHEREAS, RRG's purchase of the Kenilworth School Site will enable the Petaluma School
District to construct a new junior high school to replace the dilapidated school facilities currently located
on the Kenilworth School Site; and
WHEREAS, access to'the Kenilworth School Site is inadequate to make. development feasible,
and RRG desires to -acquire the right to obtain a nonexclusive pedestrian and vehicular easement over the
Easement Area, in order to improve access to the Kenilworth School Site and 'facilitate its development;
and
WHEREAS, the redevelopment of the Kenilworth School Site will, be of benefit to the City and
the Community Development Project Area and will be consistent with the redevelopment plan adopted
for the Project Area;.'and
WHEREAS, RRG has agreed to undertake certain obligations in connection with the
construction and maintenance of improvements located within the Easement Area and the provision of
replacement parking for the parking spaces currently located within the Easement Area; and
WHEREAS, the Fair Association has agreed in principle that it will execute an amendment to 0
lease with the City to exclude from the leased premises the Easement Area and the Skateboard/Solar
Collector Area, provided the City agrees to add the Payran Firehouse property to the leased premises;
and.
WHEREAS, the .City Council finds- that the actions authorized and granted to the City Manager
under this ordinance are exempt from the provisions of the California Environmental Quality Act
(CEQA) pursuant to Sections 15061(b)(3), 15303, 15304, and 15333 of the,CEQA Guidelines.
NOW, THEREFORE',, THE CITY; COUNCIL OF THE CITY OF 'PETALUMA,
CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. The City Manager is hereby authorized to execute an :Option Agreement
substantially in the form attached hereto as Exhibit I pursuant to which Regency Realty Group,
Inc:, a Florida corporation ("Regency") shall be granted an option to acquire an easement across
the Easement Area described .in Exhibit A to "the Option Agreement on the terms and conditions
set forth in the Option Agreement.
Section-2. Provided that all conditions precedent to the exercise of 'the option have been
satisfied, the City Manager is hereby authorized to execute an Easement Agreement substantially
in the form attached as Exhibit B to the Option, Agreement pursuant to which the Easementwou'ld
be granted to Regency and Regency would be obligated to construct and maintain street,
sidewalk, lighting and landscaping in the Easement Area. •
Section 3. The City Manager is hereby authorized to negotiate and execute an amendment to
the lease by and between the City of Petaluma and the Fourth District Agricultural Association
pursuant to which (i) the. Easement Area described in Exhibit A to the Option Agreement and the
Skateboard/Solar Panel Area described in Exhibit A-1. to the Option Agreement would be
excluded from the leased premises, and (i) the Payran Firehouse Property would be added, to the
leased premises, Exhibit II.
Section 4. The City Manager is hereby authorized to undertake such further action as'necessary
to carry out the intent of this Ordinance.
Section 5. If any section, subsection, sentence, clause orphrase or word of this ordinance .is for
any reason held to, be unconstitutional, unlawful or otherwise invalid'by a court of competent
jurisdiction, such decision 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: any one, or:more of
said provisions be. declared unconstitutional; unlawful or otherwise invalid.
Section 6. This ordinance shall become effective thirty (30) days after the date_ of :its adoption by
the Petaluma City Council.
Section 7. 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
ADOPTED this
AYES:
NOES:
ABSENT:
ATTEST:
day of
Gayle Petersen, City Clerk
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day of
, 2004 by the following vote:
David Glass, Mayor
APPROVED AS TO FORM:
, 2004.
Richard Rudnansky, City Attorney
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• OPTION AGREEMENT
THIS OPTION AGREEMENT ("Option Agreement" or "Agreement") is entered
into effective as of , 2004 ("Effective Date"), by and between the City of
Petaluma, a municipal corporation ("City") and Regency Realty Group, Inc., a Florida
corporation ("Regency"). City and Regency are hereinafter -collectively referred to as
the "Parties."
A. City is the owner of certain. real property (the "Easement Area") located
within the City of Petaluma and more particularly described in Exhibit A attached hereto
and incorporated herein by this. reference.
B. Regency has an option to purchase the real property located at Kenilworth
Court ("Kenilworth School Site") from the Petaluma Joint Union High School District
("School District").
C. Regency's purchase of the Kenilworth School .Site will enable the School District to
construct a new junior high school to replace the dilapidated school facilities currently located
on the Kenilworth School Site.
D. Access to the Kenilworth School Site is inadequate to make development feasible,
and Regency desires to acquire'the right to obtain a nonexclusive pedestrian and vehicular
easement ("Easement") over the Easement Area in order to improve access to the Kenilworth
School Site and facilitate its development.
E. The redevelopment of the Kenilworth School Site will be of benefit to the City and the
Community Development Project Area ("Project Area"), and will be consistent with the
redevelopment plan adopted for the Project Area.
F. At its meeting of May , 2004, the Petaluma City Council authorized the grant to
Regency of an easement across the Easement.Area, contingent upon and subject to certain
conditions.
G. In consideration for the grant of Easement and the rights granted hereunder,
Regency has agreed to undertake certain obligations in connection with the construction and
maintenance of improvements located within the Easement Area and the provision of
replacement parking spaces for those currently located within the Easement Area.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are, hereby acknowledged, the Parties hereby ragree as follows.
1. Grant of Option. City hereby grants to Regency an option to acquire an
easement across the Easement Area ("Option") on the terms and conditions set forth
herein arid in the Easement Agreement ("Easement Agreement")attached hereto as
Exhibit B and incorporated herein by reference..
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2. Reservation of .Rights/Nonexclusive Easement. Regency acknowledges that the
Easement shall be subject to (i) a reservation of rights allowing use of the Easement
Area for roadway,, pedestrian and vehicular ingress, egress and access by members of
the public, (ii) City's right to grant easements to other parties for, among other purposes,
the installation of utilities and storm drain improvements in the Easement Area, provided
that Regency's use of the Easement is not unreasonably impaired thereby, and (iii)
City's right to convert the Easement Area to a public street provided that such street
provides access to the Kenilworth School Site comparable to the access created by the
Easement.
3. Conditions Precedent. Regency's acquisition of the Easement is expressly
conditioned upon all of the following, and Regency and City agree that Regency shall
have no right to exercise the Option granted hereby .prior to fulfillment of all of the
following:
a. Regency's acquisition of'the Kenilworth School Site and Regency's
provision to City of evidence reasonably satisfactory to City that Regency possesses
titler to the Kenilworth School Site.
b. Execution by the Fourth District Agricultural Association of the State of
California ("Association") of a legally binding amendment ("Lease Amendment") to
that certain Lease of Kenilworth Park for Fair, Exhibition and Recreation Purposes by
and between the City -as Lessor and the Association as Lessee, dated January 1, 1973,
and amended October 3, 1996 (as so amended, the "Lease"), pursuant to which the
Easement Area and the "Skateboard Park and Solar Collector Area" (as more
particularly described in Exhibit A-1 attached hereto shall be excluded from the Lease.
C. Regency's satisfaction of (or Regency's execution of a legally binding
commitment -to satisfy) all of the following conditions 'at Regency's sole expense:
(i) Provision to the Association of an easement granting the
Association and its employees, invitees, and patrons access to the Fairgrounds
from Lindberg Street;
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(i i) Either (a) performance of work necessary to pave a portion of the
property known as "Fairgrounds Parking Lot B" sufficient in size to replace
parking spaces that will be lost as a result_ of the use of the Easement Area, or
(b) provision to the Association of an easement allowing patrons of specified
events the right to park vehicles in the parking lot Regency shall construct on
Regency's property;
(iii) Acquisition of the written consent of the Sonoma County Transit
Manager and of any other partyfrom whom consent is required to the alteration
of the Park & Ride lot developed pursuant to that certain Petaluma Fairgrounds
Park & Ride Facility Agreement for Development, Use and Maintenance, dated
October 3, 1996, by- and among the City, the County of Sonoma, the.,School
District and the Association;
(iv) Installation of .a sign for the Sonoma -Marie Fair on East Washington •
Street; and
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(v) Payment of the sum of [One Hundred Fifty Thousand Dollars
• ($150.,000)] to the Association.
e. Regency's acquisition of all entitlements ("Project Approvals") necessary for
the development of the Kenilworth School, Site, including without limitation completion of
CEQA review for the project to 'be developed on such site and for the creation of a
roadway providing access to such site across the. Easement Area The Parties
acknowledge that this, Agreement does not obligate the City to grant any approval
or authorization required for the development of the .Kenilworth School Site or the
Easement Area.,
f. Execution of an agreement pursuant to which Regency, agrees, at its expense
(i) to construct a project in conformity with the Project Approvals, (ii) to construct and
install roadway, sidewalk, lighting and landscaping improvements (collectively
"Improvements") in the Easement Area regardless of whether the City establishes a
public street in the Easement Area, and (iii) to maintain the Improvements unless and
until City establishes 'a public street in the Easement Area.
4. Consideration. If the Project Approvals grant entitlements to develop a project
that includes at least 300,000 square feet of. retail space. in a mixed -use development
that includes housing, then provided that all conditions set forth in Section 3 have been
..satisfied, Regency shall be obligated to pay no further consideration for the Easement
,or the rights granted by this Agreement. If the condition set.forth in the immediately
preceding sentence is not satisfied, then upon exercise of the Option, Regency shall
pay to City the fair market value at the'time of exercise of (i) the Easement Area, and (ii)
the, leasehold interest in the property known as the "Payran Street Firehouse Property"
which City has agreed to add to the premises leased to the Association in order to
induce Association to execute the Lease Amendment. If the Parties are unable to
agree upon a fair market value, then each Party shall appoint an appraiser. If the two
appraisers cannot agree upon a value, then they shall appoint a third appraiser. If the
third appraiser agrees with either of the original appraisers, the value so established
shall be binding on the Parties. If there is no such agreement, the middle value shall be
binding on the Parties. Payment of the consideration set forth in this Section is not a
condition precedent to acquisition of the Easement; provided however, Regency shall
be obligated to pay such consideration to City not later than thirty (30) days following
the determination of value pursuant to this Section, and in no event later than 180 days
following delivery of Regency's Notice of Exercise.
5. Term. The term of the Option (the "Option Term") shall commence on the date
when all conditions set forthl in Section 3 hereof have been satisfied, and shall end at
5:00 p.m. on the seventh (7th) anniversary of the Effective Date; provided however, this
Option Agreement shall terminate and be of no further effect if Regency has not
acquired the Kenilworth School Site by June 30, 2004. Notwithstanding any contrary
provision contained herein, this .Option Agreement shall terminate and be of no further
effect if and when City determines to establish a public street through the Easement
• Area or in a substantially comparable location which will provide access to the
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Kenilworth School Site comparable to the access provided by the Easement. No •
compensation will be payable to Regency in the event of such termination.
6. Notice of Exercise; Close of Escrow; Allocation of Costs. At any time during the
Option Term, Regency may exercise the Option by providing City with written notice of
its intent to exercise ("Notice of Exercise") together with evidence reasonably
satisfactory to City that all conditions set forth in Section 3 have been satisfied..
Conveyance of the °Easement shall 'be consummated through an escrow,to be'opened
within. three (3) business days following delivery of such Notice of Exercise. Unless
otherwise agreed to by the Parties, within thirty (30) days following delivery of the Notice
of Exercise, the Parties shall execute and deposit into escrow an Easement Agreement
substantially in the form attached hereto as Exhibit B, and shall, cause a copy'thereof to
be recorded in the Official Records of Sonoma County upon payment by Regency of
any consideration payable pursuant to Section 4.
The cost of any investigation Regency undertakes in connection with acquisition
of the Easement, including but not limited to environmental investigations, shall' be
payable by Regency. Property taxes and assessments shall be prorated as of the close
of escrow, and Regency shall be responsible for payment of all such charges from and
after close of. escrow. Regency shall be responsible' for payment of all costs of closing,
including without limitation, all escrow charges, transfer taxes, and title insurance
premiums.
City covenants that it shall do nothing to cause the Easement Area to be subject is
liens, claims or encumbrances that would interfere with conveyance of the Easement
or Regency's use of the Easement Area.
7. Assianfnent; No Third -Party Beneficiaries. This Option. Agreement and the
option conveyed hereby is personal to Regency and may not be assigned by operation
of law or otherwise without the express written consent of City which shall not be
unreasonably withheld or, delayed provided that the assignee assumes all obligations of
Regency hereunder. This Agreement is not intended to, benefit, and shall not run to the
benefit of, or be enforceable by,. any -person or entity other than the Parties and their
permitted successors and assigns.
8. Miscellaneous Provisions.
8.1 Notices. Except as otherwise specified' in this Agreement, all notices to be
sent pursuant hereto shall be made in writing, and sent to the parties at their respective
addresses specified below or to such other address as a party may designate by written
notice delivered to the other parties in accordance with this Section. All such notices
shall be sent by,:
(i) personal delivery, in which case notice shall be deemed delivered upon
receipt;
689180-3
4 ,�
(ii) certified or registered mail, return receipt requested, .in which case
notice shall 0be deemed delivered two (2) business days after deposit, ,postage prepaid
in the:United'States mail.;
(iii) nationally recognized overnight courier, in which case notice shall be
deemed delivered one (1) day after deposit with such courier; or
(iv) facsimile transmission, in which case notice shall be deemed delivered
on transmittal, provided that,a transmission report is, generated reflecting the accurate
transmission thereof.
CITY: City of Petaluma
11 English Street
Petaluma, CA 94952
Attn:
Telephone:
Facsimile:
REGENCY: Regency Realty Group, Inca
1850 Mt. Diablo. Blvd„ Suite 225
Walnut Creek, CA 94596
Attn: Tom: Engberg
® Telephone:
Facsimile:
With copy to: Hanson B.ridgett Marcus Vlahos-Rudy LLP
80 E. Sir Frances Drake Blvd, Suite 3E
Larkspur, CA 94939
Attn-, Mary K. McEachron
8.2 Attornevs° Fees. la any action at law or in equity, arbitration or other
proceeding arising, in connection with this Agreement, the prevailing party shall recover
reasonable attorneys' fees and other costs, including but not limited'to court costs and
expertand consultants fees incurred in connection with such action, in addition to any
other relief awarded, and such attorneys' fees and costs shall be included in any
judgment "in such action.
8.3 Arriendments: 'This Agreement may be amended only by. a written
instrument executed by "the Parties or their successors in interest.
8.4 - -Severability, If any provision of this Agreement shall be held to be invalid,
void or unenforceable; the validity, legality and enforceability of the remaining portions
hereof shall not in anyway be affected or impaired thereby.
• 689180-3
I(
8.5 Waiver.. A waiver by either party of the performance of any covenant or •
condition herein shall not invalidate this Agreement nor'shall it be .considered, a waiver
of any other covenant or condition, nor,shall, the delay or forbearance by either party in
exercising any remedy or right be oonsideredr a waiver of, or an estoppel against, the
later exercise of such remedy or right:.
81.6 Remedies; .No Damaaes Aqainst Citv. Upon the occurrence -of anl event of
default hereunder., the Parties may pursue all .remedies at law or in equity, expressly_
including, the remedy of specific performance of this Agre(iment; provided however, in
no event shall damages .be: awarded against'City- upon an event of' default. hereunder,
upon. termination of this Agreement pursuant to the provisions hereof; or upon
determination by -a court of competent jurisdiction that this Agreement:or any part hereof
is unenforceable or invalid.
8.7 Indemnification.. Regency shall indemnify, defend and hold harmless City
and the Petaluma Community Development,Commission and their respective boards,
commissions, and elected and. appointed officials, employees, agents and contractors
(collectively lr)demnitees") from, and against all claims, actions, proceedings,
demands, _liabilities; judgments; losses; expenses (including reasonable aftorneys" fees
and expenses)and costs, (collectivel,y `'Claims'') arising out of or related to this
Agreement: including, any claim, action or proceeding to attack, set aside, void or annul
this Agreement or any part hereof.. City shall. promptly notify Regency of any such
Claim. Nothing contained in this Section shall prohibit the City from, participating in a
defense of any Claim, and if the City chooses to do soy Regency shall reimburse `City for
reasonable attorneys' fees and expenses incurred by City.
8'.8, Entire Agreement. This Agreement,, together with. the Easement .
Agreement, the Lease Amendment, and Exhibits A through C, attached .hereto and
incorporated herein by this reference, contains the entire agreement between the
Parties with respect to the subject matter hereof, and supersedes all prior negotiations;
documents and discussions pertaining thereto.
8.9 Parties Not Co -Venturers; No Brokers. Nothing in this Agreement is
intended to or shall establish the Parties as partners, co -venturers; or principal and
agentwith one another. Each Party .represents and warrants to the other that no
brokers,have'been retained or consulted in connection withr this transaction other than
as disclosed in writing to the other party. Each Party shall defend, indemnify, and hold
the other Party harmless from any claim, expense, cost, loss or liability imposed by any
party claiming,.a fee or commission in connection with this Agreement or the acquisition
of the Easement and arising out of the indemnifying Party's conduct.
8.10 Captions. The, captions of the Sections of this Agreement are for
convenience only and are not intended to affect the interpretation or construction of the
provisions hereof.
'689180-3
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•
8.11 Counterparts. This Agreement may executed in multiple counterparts,
• each of which shall be an original and all of which together shall constitute one
agreement:
8A2 -Further Assurances: Memorandum. The Parties agree to execute,
acknowledge and deliver to the other such other documents and instruments, and to
undertake such actions, as either shall reasonably, request or as may be necessary to
carry out the intent of this Agreement. Without limiting the generality of the foregoing (i)
the Parties agree to execute and record in the Official Records of Sonoma County a
Memorandum of Option substantially in the form attached hereto as Exhibit C, and (ii)
upon termination of this.Agreement or upon expiration of the Option, Regency agrees
to execute, acknowledge, and deliver to City a quit claim in recordable form within ten
(10) days following request by City, and -to execute, acknowledge and: deliver such other
documents reasonably necessary to remove the cloud of,this Agreement from title.
8.13 Governing Law;�'Time 'is of the Essence. This Agreement shall be
interpreted under and pursuant to the laws ofFthe State:of California without regard to
principles of conflict of laws. Time is of -the essence and is a material term for all
conditions and provisions contained 'in this Agreement.
IN WITNESS WHEREOF, the, City and Regency have executed this Option
Agreement as of the date first -Written above.
• REGENCY
By:
Its:
CITY OF PETALUMA
Its:
ATTEST:
City Clerk-
0 689180=3
7
t2
• STATE OF CALIFORNIA )
ss.
COUNTY OF SONOMA )
On before me, ,
personally appeared
personally known to me ('or proved to me that. 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.
•
•
3.0
EXHIBIT B TO OPTION AGREEMENT
Recording.Requested.by
and when Recorded, ret'urn'to:
City Of Petaluma
11 English Street
Petaluma, CA 94952
Attn: City Clerk
EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE
§§6103, 27383
'(SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE)
EASEMENT AGREEMENT
This Easement Agreement ("Agreement"), dated as. of ,
2004, is executed by and between the: City of ,Petaluma, a California municipal
corporation ("City") and Regency Realty Group, a Florida corporation ("Regency"). City
and Regency are hereinafter collectively referred to as the "Parties."
RECITALS
A. City is the owner of certain real property (the "',Easement Area") located
within the City of Petaluma arid. more particularly described in Exhibit A attached hereto
and incorporated herein by this reference.
B. Regency has purchased, the real property located at Kenilworth Court
("Kenilworth School Site?') from the Petaluma Joint Union High School District ("School
District").
C. Regency's purchase ofthe Kenilworth School, Site has enabled or will enable the
'School District to construct: a new junior high school toy replace the dilapidated ischool facilities
located on the Kenilworth School. Site.
D. Access: to the Kenilworth School Site is inadequate; to make development feasible,
and. Regency desires to acquire a nonexclusive pedestrian and vehicular easement over the
Easement Area, in order to improve access to the Kenilworth School Site and facilitate its
development.
E. The redevelopment of°the Kenilworth School Site will be of benefit to the City and the
Community Development Project Area ("Project Area"), and will ,be- consistent with the
redevelopment plan adopted for the Project Area.
F. At its meetingof May , 2004, the Petaluma City Council authorized the execution
Y Y
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689290-3
of an option agreement ("Option Agreement") pursuant to which the City agreed to grant to •
Regency an easement across.the Easement Area, contingent: upon and subject to certain
conditions as set forth in the Option Agreement.
G. Regency has satisfied all conditions precedent to the exercise of the Option.
H. The Parties desire to ensure that: (i) members of the publicwill at all times
have access to and through the Easement Area' (ii),a roadway, sidewalks,, 'landscaping
and, adequate. lighting ("Improvements") will 'be constructed and installed in. the
Easement Area, and (iii) the Easement Area and the improvements constructed or
installed therein will at all times, be maintained in a neat, clean, safe and orderly
condition:
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows.
1. Grant of Easement. City hereby grants to Regency, subject�to the -terms and
conditions set forth in this Agreement,.a nonexclusive easement for pedestrian ,and
vehicular:ingress, egress and access ("Easement") across the Easement Area for use
by Regency and its employees, licensees, agents, contractors, invitees, ,guests; visitors,
customers, vendors, service providers, and tenants for the purpose of providing access
to ,and from the 'Kenilworth School 'Site. r
2. Reservation of Rights. Regency ackhowledgesi that the foregoing grant of
easement is subject to. (i) a reservation of rights allowing use of the Easement Area
for pedestrian, and vehicular.ingress, egress and access by members of :the public,, (ii)
City's right to grant easements to other parties for, among other purposes, the
installation of utilities and storm drain improvements in the Easement Area, provided
that Regency's. use of the Easement is not unreasonably impaired.thereby, and (iii,)
City's.rightto con.v.,ert'the Easement Area to a public street provided'thatsueh street
provides access to the Kenilworth School. Site comparable to the access created by the
Easement. Regency acknowledges and agrees that upon termination of the. Easement
in accordance with clause (iii) of this Section: (a) Regency shall not be entitled to any;
form of compensation (including without limitation, compensation for the cost of
construction of improvements in the Easement Area), and (b) Regency .shall execute,
acknowledge,, "and deliver to City a quit claim in recordable form within ten (1.0) days
following, request by City and shall execute, acknowledge and deliver such other
documents reasonably necessary to effectuate the termination of this Agreement and
the Easement. City acknowledges and agrees that upon termination of the Easement
in accordance with clause (iii} of this Section, notwithstanding any contrary provision .
contained' herein, Regency shall have no further obligation to maintain the
Improvements or to indemnify City pursuant to Section `8,hereof except in connection
with Claims arising as a result of or in connection with Regency's construction of the
Improvements or Claims seeking to attack, set aside, void or annulthis Agreement or
any part hereof.
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3. Character of Easement.
(a) The easement _created by this Agreement is expressly. for the benefit of
Regency as owner of the Kenilworth School Site. Regency's property interests thereby
benefited shall be the dominant estate, and the property upon which the easement is
located shall be the servient estate.
(b) The easement created by.this Agreement is appurtenant to the dominant
estate, shall run with the land, and may not be transferred, assigned or encumbered
except as an appurtenance to such dominant:estate.
(c) Each cove nant.contained 'in this Agreement; constitutes a covenant running
with the land and shall inure to the benefit of.and be binding upon the Parties and their
respective successors and assigns. Any person accepting a deed for other instrument
conveying, granting or assigning any property,affected or benefited by this Agreement
or any portion thereof or interest therein shall take title subjectto this Agreement, and
such person shall be deemed to have assumed all of the applicableobligations imposed
hereby with regard to such property regardless'of whetherrthisAgreement is mentioned
in such deed or other instrument. Whenever a reference in'this Agreement is made to
City or Regency, such reference shall be .deemed to also mean a reference to the
successors in interest of each such party (or parties,), as applicable, as 'if in every case
so expressed.
4. Duration. Subject to City's right to terminate the Easement upon the creation of
a public street pursuant to Section 2, the, -Easement shall be perpetual in duration unless
the Parties mutually agree in writing to terminate the Easement.
5. No Barriers. The Parties agree that absent the written consent of the, Parties, no
wall, fence, or barrier of any kind which impairs or impedes access to, or use of, the
Easement shall be constructed;.or maintained on or adjacent to the Easement Area, nor
shall tlie; Patties do anything which shall prevent, impair or -discourage the use or
exercise of the Easement or the free, access and movement across 'the Easement Area.
6. Construction and Maintenance
6„ 1 Construction. Regency shall, at. Regency's sole cost without reimbursement,
complete construction and installation of sidewalks; roadway improvements, lighting and
landscaping in the Easement Area in accordancwwith City's approvals for the
development of the -Kenilworth School Site. At Regency's sole cost without
reimbursement, Regency shall: (i) maintain, repair, replace and reconstruct in
accordance with°the standard set forth in Section 7, the sidewalks, roadway,
landscaping and lighting located, in the Easement Area, (ii)- in -stall and maintain
adequate lighting'.for pedestrian and. vehicular travel across the Easement Area, and (iii)
MIG
maintain the Easement.Area in compliance with applicable laws and regulations,
including without limitation-, the Americans with Disabilities Act ("ADA") as an
unobstructed path of travel. between East Washington Street and Kenilworth Court.
6.2 Maintenance.
(a) Regency -shall maintain the Easement Area and the improvements located
thereon at Regency's sole cost and expense.
(b)i Without limiting the.generality of the foregoing, .Regency shall be
responsible for each~of ,the following with respect to the Easement Area: (i)
maintenance,:of`the surface of sidewalks andpavement in level condition and evenly
covered with the type of surfacing material originally installed, or such substitute as will
in all respects be equal to such original material in quality, appearance and durability,
(ii) maintenance and.krigation of landscaping, (iii) maintenance and repair.of such
appropriate signs, markers and light fixtures as reasonably required; `and' (iv) removal of
papers, debris and :refuse from the Easoment.Area.
(c) Regency shall install at Regency's expense or shall reimburse City;for the
cost lof installation and' maintenance of all traffic lights and pedestrian signals City.in its
reasonable.discretion determines are. necessary pursuant to the Project Approvals and
environmental review to ensure the safe use of the Easement Area, including,without
limitation; traffic signals that may be located at,.the East Washington Street and the
Kenilworth Court entrances to the Easement Area. City shall provide Regency with a
statement of such expenses together with such documentation as Regencymay
reasonably request, and Regency shall remit.such sum within 30 days following receipt
of such invoice.
7. Standards of Performance. Regency shall perform its construction,
maintenance. and :repair obligations hereunder in accordance with the standards'set
forth in the Petaluma Central Business District "Downtown Streetscape: Master Plan, and
shall perform all required work in ,a timely manner and in accordance with generally
accepted principles of workmahship, using best efforts to minimize disruption in the use
of the Easement Area during the course -of such work.
8. Indemnification. Regency shall indemnify, defend and hold harmless City and
the: Petaluma Community Developrnent.Commission and their respective boards,
commissions and elected and appointed -officials, employees, agents and' contractors
(°Indemnifees") from and against all actions, proceedings, claims, demands, liabilities,
judgments, losses, expenses (including reasonable attorneys' fees and expenses) and
costs (all of the.foregoing, collectively "Claims") arising out of or related to Regency's
performance or failure to. perform its construction and maintenance obligations
described in Section 6-except. to the extent the same are attributable to the gross.
negligence or willful misconduct of ,lnd.emnitees. Furthermore, Regency shall: •
indemnify, defend and hold harmless Indemnitees from and against any claim; action or
4
• proceeding to attack; set aside, void or annul this Agreement or any part hereof. City
shall .promptly_ notify Regency of any such Claim. Nothing contained in this Section
shall prohibit the City from participating in a defense of any Claim, and if the City
chooses to do so, Regency,=shall reimburse City for reasonable attorneys' fees and
expenses incurred by City. It is the intent of -the Parties that City shall have no liability
.for Claims arising in connection with the use of the Easement Area other than as
expressly stated in this Section.
9., Taxes. Regency -shall be responsible for payment -of all taxes and assessments,
including without limitatiOn ,possessory interest -taxes, if any, payable with respect to the
Easement Area.
10. Insurance.
(a) Regency shall at all times during the term of this Agreement maintain, in full
force and effect, commercially reasonable policies of commercial general liability
insurance including; coverage for injury to or death'of persons and damage to or
destruction of property resulting from the construction, use,, operation, repair and
maintenance of the: Easement Area and the improvements to be located therein, with a
financially responsible insurance company or companies approved by City, in the
amount of not less than Five Million Dollars ($5,000,000) per occurrence and Five
Million Dollars ($5,000,000) annual general aggregate. The liability limit under each
insurance policyshall be reviewed and adjusted every five (5) years, beginningfrom the
date, of this Agreement as mutually agreed by the Parties. If the, Parties are unable to
agree, the liability,limit.of each policy, shall be increased by the. percentage by which the
Consumer Price Index (All Urban Consumers) for the San Francisco-Oakland=San Jose
metropolitan area published by the U.S. Department of Labor has increased since the
last date on which the. liability limits were set.
(b) Regency shall furnish to City, on or before the Effective Date.of this
Agreement,, evidence_ that the 'insurance referred to in this Section is 'in full force and
effect.
(c) Each policy of insurance shall: (i) name the Cityas additional insured
thereunder;, (i'i):stipulate that°the insurance is primary insurance,and°that no insurance
or self-insurance of City will be called upon to contribute'to a doss, and. (iii) provide that
the. policy may not be cancelled or amended without at least thirty (30.) days prior written
notice to City..
(d) All policies shall be issued by -California admitted companies which hold a
current rating of not less than A:VIII according to Best's.i.nsurance Reports.
(e) The Parties acknowledge that some of the foregoing insurance requirements
may be fulfilled by a funded self-insurance program. Any such self-insurance must be
• approved in writing 'by City, and shall not limit the liabilities assumed under this
3O
Agreement.
11. Events of Default: Remedies. An. Event of Default under this Agreement shall
occur if either Party fails'to comply wirith any of the covenants or obligations hereunder
and does not cure -such failure within ten(10) days after receipt of -written not'ice,thereof
(or in the case of a nonmonetary default, fails to commence to cure, such default within
such ten-day period and thereafterproceeds with due diligence to cure such default.)
Upon the occurrence of an event of'default hereunder, the Parties may,pursue all
remedies at law or inequity, expressly including the remedy of specific: performance of
this Agreement; provided however, in no event shall 'damages be award%ed :against City
upon an. event.of default hereunder, upon termination of this Agreement pursuant to the
provisions hereof. or upon determination by a court of competent jurisdiction that this
Agreement or any part hereof is unenforceable or invalid.
12. Miscellaneous.
12.1 Effective Date. This Agreement shall be effective as of°the date this
document is recorded'in the Official Record s-of:Sonoma County.
12.2. No Joint'Venture, No Brokers. No provision of this Agreement shall be
deemed to constitute the Parties as partners., principal and agent, or joint lyentUrers with
one another. Each, Party represents. and warrants to'the other that no brokers have •
been retained..orconsulted in connection with this,transaction other than as disclosed, in
writing to the other party.. Each Party shall defend, indemnify; and hold the other Party
harmless from any claim, expense, cost, loss or liability imposed by any party claiming. a
fee or commission in connection with this Agreement or the acquisition of the Easement
and arising out of the indemnifying Party's conduct.
12.3, No Waiver. No waiver of, acquiescence in or consent:to any breach of
any term; covenant or condition hereof shall be construed as, or constitute a. waiver of,
acquiescence in, or consent,to, any other, further or succeeding breach of the same or
any other term, covenant or condition.
12 .4r Notices. Except as otherwise specified herein, all notices to be sent
pursuant to this Agreement shall be made in writing, and sent to the Parties at their
respective addresses specified below or to such other, address as a Party may
designate by written notice delivered to the other parties in accordance with this
Section. All such notices shall be sent by:
(i) person -al delivery, in which case notice is effective upon delivery;
(ii) certified or registered mail, return receipt requested, in which case
notice shall be deemed delivered on receipt'if delivery is confirmed by.a return
receipt,
31
• (iii) nationally recognized overnight courier, with charges prepaid or
charged to the sender's account, in which case_ notice is effective on delivery if
delivery is confirmed by the delivery service;
(iv) facsimile transmission, in which case notice shall be, deemed delivered
upon transmittal, provided that (a) a duplicate copy of the notice is promptly
delivered by first-class or certified mail or by overnight delivery, or (b) a
transmission report is generated reflecting the accurate transmission thereof.
Any notice given by facsimile shall be considered to have been received on the
next business day if'it is received after 5:00 p.m. recipient's time or on a
nonbusiness day.
City: City of Petaluma
11. English Street
Petaluma, CA 94952
Attn:
Telephone:
'Facsimile:
Regency: - Regency Realty Group, Inc.
1850 Mt.,.Diablo Blvd., Suite 225
Walnut :Creek,, CA., 94596
�. Attn: Tom Engberg
'Telephone:
Facsimile:
With copy to:. Hanson Bridgett Marcus Vlahos Rudy LLP
80 E. Sir Frances Drake Blvd,, Suite 3E
Larkspur, CA 94.939
Attn: Mary K. McEachron
12.5 Furfiher Assurances., The Parties agree to execute, acknowledge and
deliver to the other such -other documents and instruments., and to undertake such other
actions, as, either shall reasonably request asm, ay be necessary to carry out the intent
of this Agreement.
12.6 No Third Partv Beneficiaries. There shall be no third party beneficiaries to
this Agreement except as specifically set forth herein.
12.7 Governing Law. This Agreement shall be construed' in accordance with
the laws of'the State of California without regard to principles of conflicts of law.
• 12.8 Severabilitv., If any term, provision, covenant or condition contained in this
3a
Agreement is held by a court of`competen't jurisdiction to be invaiid,'void or •
unenforceable, the remainder of this Agreement shall continue in full force ,and ,effect
unless the rights -and obligations of the Parties are materially altered or abridged by
such invalidation, voiding or unenforceability.
12.9 Attornevs' Fees. In any action at law .or in equity, arbitration or other
proceeding arising in connection with 'this Agreement,'the prevailing party shall recover
reasonable attorneys' fees and other costs, including but.not limite011.0-court, costs and,
expert and consultants' fees incurred in connection with such, action in addition -to any
other relief awarded,, and such attorneys' fees and costs shall be included_ in any
judgment- in such action.
1.2.10 Counterparts. This Agreement may be, executed in multiple counterparts,
each of which shall be tan original and all of which together shall constitute one:
agreement.
12.11 Amendments. This Agreement may be modified or amended, in whole or
in part, only by an instrument in writing, executed and acknowledged .bythe Parties, and
recorded 'in the Official Records of .Sonoma County:
12.12 Captions;, Entire Agreement. The section headings used' in this
Agreement are for convenience only and are not intended to affect the interpretation or
construction of the provisions herein contained. This Agreement, together with the
Option Agreement and the documents referenced therein, contains the entire
agreement of ,the Parties. with respect to the subject matter hereof, and :all prior
negotiations., documents and discussions with respect thereto.are hereby.superseded.
SIGNATURES ON FOLLOWING PAGE.
33
•
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IN WITNESS,WHEREOF, the Parties have -executed this Agreement as of the
date first written above.
CITY OF PETALUMA
By:
Name:
Title:
APPROVED AS TO FORM:
By:
City Attorney
ATTEST:
By:
City Clerk
REGENCY REALTY GROUP,INC.,
a Florida corporation.
By:
Thomas K. Engberg,
Its: Senior Vice President
•
9 3i
STATE OF CALIFORNIA )
) ss..
COUNTY OF SO.NOMA )
On before me,;
personally appeared
personally known. to me .(or proved to me that on the basis of satisfactory evidence) to
be the person(s) whose names) 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(§): 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.
Notary Public
Ll
1 0
35
•
RECORDING,REQUEST,ED BY
• AND WHEN RECORDED, RETURN' TO:
City of Petafuma
11 English Street
Petaluma, -CA 94952
Attn:. City Clerk
EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE
§§6103, 27383
(SPACE ABOVE THIS LINE RESERVED FOR^RECORDER'S USE)
MEMORANDUM OF OPTION
This Memorandum of Option (:this "Memorandum") dated as of
Y)Regency, 004, is made by the City of Petaluma, a, municipal corporation
("City") and Realty Group, Inc., a Florida .corporation. ("Regency").
Pursuant to an Option Agreement dated as of , 2004 by and
between City.and Regency (the "Option Agreement"), City has granted to Regency an
option ("Option") to acquire,, on the terms and conditions set forth in the Option
Agreement, a nonexclusive ingress, egress and access easement across real property
located in the City of,Pet alp 'ma, Sonoma County, California and more particularly
described in Exhibit A attached hereto and incorporated herein' (the "Easement Area").
•
This Memorandum incorporates all of the terms and provisions of the Option
Agreement as though fully set forth herein. The term of the Option commences on, the
date all conditions to the exercise of'the .Option as set forth in the: Option Agreement
have been satisfied: The Option terminates upon the earlier of (i)'the occurrence of
certain events as set forth in the Option Agreement or (ii) , 2011 (the
seventh anniversary of'the Effective.Date of the Option Agreement).
•
This Memorandum is solely for recording purposes and shall not be construed to
alter, modify, amend or supplement the Option Agreement. In the event of any
inconsistency between this Memorandum and the Option Agreement, the Option
Agreement shall contro'I.
This Memorandum and the Option Agreement shall 'bi.rid and, inure to the benefit
of the- parties and their respective heirs, successors and assigns,, subject.however to
restrictions set forth in the Option Agreement regarding assignment.
—1-
3q
IN WITNESS WHEREOF, the parties have executed this Memorandum as of the date
first written above.
CITY'OF PETALUMA
By:
Name:
Title's
APPROVED AS TO. FORM:
By:
City Attorney
ATTEST:
By:
City Clerk
REGENCY REALTY :GROUP, INC.,
a Florida_ corporation
By:
Thomas K. Engberg,
Its: Senior Vice President
—2—
L40
•
STATE OF CALIFORNIA )
• ss.
•
COUNTY OF SONOMA
On before me,.
personally appeared
personally known to me (or -proved to me that 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.
CE
4�)
s
i
Res O l U t i o n No. 97-3 L7 N.C.S.
of ri-ie City 04 RtiIlur7IZ1. C 'iLtliIfornJZI
• 1 RESOLUTION APPROVING THE KEi MWORTHRECREATION NUSTER PLAIN
3 WHEREAS, the City Council, through the five year capital. improvement program has authorized
4 improvements to the athletic,fields at.Keni,lworth Junior High,School; and
5
6 WHEREAS, the Recreation, Music and Parks Commission, in planning for the improvements at Kenilworth
7 Junior High, evaluated the impacts of existing Recreation facilities in the. Kenilworth area including' "Kenilworth
8 Park; Petaluma Public Library,* Petaluma Swim Center; Petaluma Skate Park -'Kenilworth Junior High
9 gymnasium, athletic fields and.tennis courts; and
10 -
11 VYHEREAS, the Recreation Music and Parks•.Commission believes that good.planning includes.a recreation
12 master plan for the entire' Kenilworth. corridor, displaying ousting and desired' improvements which so heavily
13 impact the youth of our community; ,and
14
15 WHEREAS,'the Recreation, Music and Parks Commission sponsored a master plan committee comprised of
representatives from the Commission, Parks ,and Recreation staff, Petaluma. School District, little league, soccer
4k and Pop Warner football; •and-'
18
19 VYMREAS, a proposed :master plan has been developed and approved by the Recreation, Music and Parks
20 Commission, for consideration and adoption by the City Council and Petaluma'School Board.
21
22 BE IT THEREFORE RESOLVED, that the City Council of the .City .of Petaluma do hereby approve the
23 Kenilworth Recreation Master Plan as recommended by ;the Recreation, Music and Parks Commission, and
24 direct`the Commission to present,the master plan to the Petalumc : School Board for their approval.
25 jc/nb/reskrcros/c: j im
Under. `the -power,; and authority conferred, upon this. Council by the Charter of said, City.
REFERENCE: I hereby certify the ,foregoing Resolution was .introduced and adopted by ,the Approved as to '
Council of the City -of Petaluma at a(Regular) (RY) meeting, form
on the 1T>;11=,__ day'of _.�tsiYemheL. - m_91, by the
fouoWing :vote: _...._ ----------
City Attorney
AYES: Read, ,Keller, Stompe, Torhatt, Maguire, Vice Mayor Hamilton; Mayor Hi igoss
SS: None
ABSENT: None
ATTEST: ... .................•-•.. - / .� t .✓..:� C�/ fI /` �- "`
-- .....:_....- ................__...._.._...._ �.� .... �L� _ .._._-_•-•_•-•
ity Clerk Mayor
C1olmciLFIle
Spectator seating.
MULTI-PURPOSE�FIELD
r
gCt
OR HIGHOOL
I
PARKING LOT'/.BALL COURT -
I ParkingJar 100 cars
• Ball'/.Activity Court
S' / POOL
�I
..,_ -r— — --=
SOFTBALL / I:
t � I
I•Phase 1A--'—.
i
t I
f., I
/ BASEBALL2.
I �-•
Phase
L PATHWAYS:
• Pared, 8' , ide.
._ Providas pedealdon Iinki Endserv-Ice
vehicle ,acceas.
® Enhanced location for spectators,
PARKING LOT
• Parking for 44
• Freeway Duffer
• Tree and low SI
and o►ovide A;
• I'Ni
- - --=Phase 2 - - ----� --• -- —_
• I i MULTI -PURPOSE FIELC
ER FIELD
� I�u11PpgGIWI fLq�l
[I.
1 AGENDA ITEMS #
2
3 KEY O' D Resolution to.Approve the
6 DATE Noverilgr 17. 1997
7
8
9 DEPARTMENT:
10 Parks and Recreation Department - Jim Carr, Director, Steve Arago, Chair, Recreation, Music
11 and Parks Commission.
12�
13 REQUESTED COUNCIL A-C11ON:
14 To approve the proposed master plan for the Kenilworth Recreation area.
15
16 RECOMMENDATION:
17 The Recreation, Music and Parks Commission recommends approval of the proposed master
I8 plan.
19
20 BACKGROLDM:
1 A long term goal of the Recreation, Music and' Parks Commission is to remove the softball lights
2 from McNear Park and light afield at Aparicio field.on the Kenilworth Junior High School site.
23 The Recreation, Music and Parks Commission began, the -planning process this last year to light
24 Aparicio field and move forward with the long desired project
25
26 Funding has been appropriated in the parks five year capital improvement plan but in prior years .
27 the Petaluma School District had the school site for sale, hence the project. was stalled.
28 Indications are that the Petaluma School District will keep the Kenilworth site and sometime
29 within the next ten years construct a, third site.
30
31 With the initial stages of the, master plan.process, the Commission -chose to identify and include
32 all the Recreation amenities in the Kenilworth corridor. Included are Kenilworth Park, library,
33 swim center; skate: park and Kenilworth Junior High with its gym, athletic, fields, tennis courts
34 and little league..(Aparecip, Carter fields)'and soccer fields.
35
36 The master plan keys,in on the Aparacio field and adjacent tennis courts.for, the first phase.
37 Proposed is the lighting of Aparicio field for softball,, soccerr and baseball.
38
39 The current football, soccer and baseball fields are marginal at. best. Proposed improvements
40 would reconfigure the fields, improve irrigation and grading and install a softball field.
41
A long term plan of the Parks and Recreation Department is to reconfigure the existing tennis
courts in relationship to the sun for daytime use, and light them for night play. This would
44 provide alighted tennis facility for the public, with no adjacent homes to be impacted. Improved
45 courts would also provide a safe :playing surface for school use. ' 1 q
46 A planning committee comprised of Recreation, Music and Parks. Commissioner's, •
47 representatives of the Petaluma School District, Little Leagues, Pop Warner football and. soccer
48 has been meeting for the last six months, developing conceptual plans andplanning for
49 implementation.
50
51 The,school district has expressed interest in providing funding for the renovation. Sports
52 organizations and the National Guard have been approached for services, in -kind and financial
53 support. The response has been.quite favorable to the proposed plan and implementation.
54
55 AL.T'E NA
56. 1) Not:,approve the proposed; master plan.
57• 2) Approve the master plan forthe Kenilworth School site only.
58 3) The City Council re -configure the master plan scope/area.
59 -
60 CONSEQL> NOES .OF NOTACTING:.
61 No master plan is approved, and ,the Parks and Recreation Department continues in its efforts to.
62, relocate softball from McNear Park to Aparacio field.
63
64 ACTION FOLLOWING AUT'HORZA'i_'_TON
65 Upon approval`. of the proposed master plan, the ,Petaluma School Board will be notified: of°the
66 proposed plan with a request for the school district''s.continued:support'in implementing the plan. •
67
68 jc/nb/agkrcrost/c, jim
•
So
• h
1
10.6 ENILWOR'TH' & FAIRGROUNDS SITE:
RETAIL POSITIONING .& STRATEGIES
Recommended Positioninq & Format.
0 Regional DestinationPower Center..
0 Large Format &:,Baby Box- Retciil.
❑ To}al of 400,000 'to 420,0.00 sq. ff.
Anchored Bv:
• Home Electronics/Computers
• Home Furnishings, & Accessories
is Pad Restaurants
Retail Mix
• House & Home
• Value & Mid -Priced Apparel
• Appliances
• Toys, Hobbies & Crafts
• Sporting Goods
Zoninq Direction
i- Highway Commercial'
Development, Direction
➢ Assemble and develop
as a Regional Large
Format Retail Node to
introduce missing
retailers of regional
proportion.
Kev Retail Development Oaportunity
This site is at Petaluma's most important interchange of, Washington
Street with Highway 101. In conjunction with Washington Street, this
interchange forms the gateway' and approach' armature for.
Downtown. Accordingly, to complement Downtown and stimulate
regional attraction and cross -shopping within Petaluma, this isseen
to be the best location for a "Regional Large Format- Retail
Destination" within Petaluma..
Site Strengths/Weaknesses
+ ,Large linear exposure & frontage to Hwy 101.
+ Excellent access to Petaluma via Washington Street & to
region via Hwy 101 interchange.
+ At geographic- center ,of Petaluma.
+ Gateway to Downtown Petaluma.
+ Washington Street is lalready established as City's retail
u..,
corridor.
Potential traffic capacity issues along Washington Street.
Interchange of Washington Street & Hwy 101 may become
V1 congested.
TABLE 10.6
PROJECTED SALES & TARGET CAPTURE RAT.ES�
Tk_ r
�.-
. STA..,.. ..
&rA r�t01u1a.�AREA
SALES Y,1re•
"._y.=.T-�x%s�'�'w:s_,•Ay;....-,
v -
_
_
wr��tT46t,'�'�,'�a7,,. ..
�rx
Alcohol & Tobacco
S2.235.380
5.0%
32.592.713
2.3%
$4,828A94
3.0%
Personal Care
5501,238
3 0%
S447,226
1.0%
5948.d64 ,.
1 6%
Personal Services
$960.061
3.0%
$854.543
1,0%
51:014.603
1 6%
Pharmacy
$1.563.199
30%
$1.668.685
1;3%
S3.231,861
1.7°%
GmcaryfSpadalty Food
32.942.741
2 0 %
$3.836.192
1 0°%
r$6,778 933
1.3%
• e '
F.
Apparel
'54AK198
7.6 %
S8,143.812
s:m
s12:548,011
56%
Footwear
$1,527.091
10.0%
$1,997.525
5'1%
S3'.524816. •.
6.5%
Home Electronics B Computers
514,432,408
47,1%
S16.209:131
20:7%
,530,641:539
28-1%
Home Fimtlemgs& Actessoits.
S7,30Z,156
200%
_5msm.061
11.3%
317;808;511
13.7%
Home ImprovementGardening
SI',114,545
5.0%
S713.295
1:3%,
-$1,827,840
2.3%
Housewares &, Small Appliances:
S11.176,901
25.0`1.
$12.983.567
114%
$24J40,468
152%
Jewelery'& Accessories
'SIA88.241
10.0%
S1.362.778
3.6%
$2.851.019
15.2%
Maps APOluances
'32.765.57a .
270%
$2.941;869 ,
11.3%
$5.70444
15.7
Multimedia Books & Music
$1,280,159
8.0%
$1,266.036 -
3.1%
S2.545,144
4.5%
Speciaay Retail
S1.376.039
6.1%
32,87C270
50%
Sa.252.309
53%
Sporting Goods .
S2.386,792
27.2%
Stl!21',962
8.1 %
$4.208755
13.5%'
Toys &' Hobbies
S4.627.827
30%
52,928.312
7.8%
-37,556.159
to a%
10
Restaurant & Cafes
2.1% $1
2.2% .511
TOTAL SALES :s^ct�z�;�'�;.�-": �i=�.,�{lr:se9,a36,a44.{';-::•.;�:,�%:i__:a,�;;;r16:zw{�:i:379.+6�east ''-'r2:=-�°`I:ssY.
TABLE,10.7
iECOMMENDED RETAIL MIX 9, FLOOR .AREA: (IN so.UARE FEET). -
Alcohol & Tobacco
2.0%
8.047
8,178
8.304,
8.286
8:259
Personal Care
1.2%
4.142
4.627
4.910
4.902.
4,891
Personal Services
22%
9.073
9:229
91380
9,351
9.333
Pharmacy
1.5%
- 6,t56
6,268-
6,379
6.370
6.356
Grocery/Specialty Food.
3.2%
12.812
13;109
.13.381
13.519
13:770
t
ttxel't§Y:Y3:J'I.�eY.
`- i5'tlr�:kY1:Y1.iY�IIrI�kYikilrx'Jel:�ktii:>k:JldkY<f:9:1iY1eix�-Y111itd6
Apparel
12 0%
487.262
48,974'
49.663'
49.574
.49,442'
Footwear
2.9%
.1,1,749
11,939
12:126
12.108
12',081
Home Electronics '& Computers
23'4%
w282
95.6n
97.378
97:157
96.905
Home Furnishings ,& Accessories
16;1%
,64:7SS
SEE,838
66.899
.66,797"
66.647
Home Improvement a Gardening
2.0%
8,124
8.278
8 429
8 a12
8.387
Housewares & Small Appliances
0.0%
-. 54 '
55
55'
55
55'
Jewetery & Accessories
1 4%
5,702
5.807
5.912:
5.905
5,995
Major Appliances
6.3%
25,356
25.019
26,268
26,230
26,174
Multimedia Books & Music
2.1%
8.487
8.618
8,745
.e 728
8 703
Specialty' Retail
4.2%
17.009
17,231
1T, 4
17411
17,364
Sporting Goods
3.8 %
15.305
15.590
15.877
15.864
15.346
Toys & Hobbies
6.0%
274T7
28.030
28.591
20.569
28.539
EnteKainment - I 2.5%I 9,901 10.089 10.271 10.249 10.217
Restaurant & Cafes 6 4% 25,999 26.456 26.900 26,841 26.755
TOTAL FLOORSPACE:i1`+.'.:;„�-<,:)4;=�.:r<-':J ,100.0%j=..-,403;404',-,: 410159:::=;416.88].:'.:416;339',':'415,578.j
Petaluma Leakage & Sustainable Retail Strategy Study, January 2004 Page 85
KENILWORTH & FAIRGROUNDS SITE:
RETAIL POSITIONING &'StRATEGIES (CONTINUED)
2003, TARGETS:
Convenience Retail'
Compqrison Retail
Restaurants -& Leistire
Total
Retail`
Target PTA
Target STA
Mix %
Capture Rate..Capture
Rate
10%
-2.8%
1..3 1 %
81%
18.0%
8.3%
9%
8-.2%
2-.2%
1 OQ%
'b 0. 2 '-0/o
4.5%_
Phasinq/timina
Immediate over 2 to 3 year horizon.
IrnDlementation, Lavout & Streetscanie Strategies
Target
Sales /Yr.
$18 million
$118L million
$13 million
$148,mi'l
FIGURE 10.9
PROJECTED SPACE & FLOOR.SPACE'.ALLOCATION
CONVENIENCE RESTAURANTS &
RETAIL: LEISURE
10% $18 M
.COMPARISON RETAIL
. RETAIL
1. Goal Is. to create a "Regional Shopping Destination" that will draw from the 81% $,118 M
Secondary Trade Area and; -beyond.
2. Anchor with' either an Electronics/Computers/Home Entertainment Equipment
High. y
Melgostore, or a Home Furnishings Megastore. Inte ch ge
3. City could consolidate lands and then offie'e, by tender to joint venture retail
developers on a long term le'ase,. or to sell or long term lease 'major anchor
parcel to an anchor tenant attractive rates values, to attract other higher
paying retail tenants /developers to pr6ject.
A.,
4. Megastoee anchor retailers should be placed deep into south end of site, with
exposure from Hwy 101, to, induce circulation through project. CPU.
5. Restaurants should be along Washington St. frontage.
CPU,
6. Baby Boxes and smaller in -line retail tenants should have exposure from Hwy.
10:1, and placed. between the megabox tenants and Washington St.
7. Although built as a larger format retail center, a contrived street through the
-a, with landscape and water features should be created to
parking are 4- 0
provide a "sense of place' and ensure safe pedestrian movement throughout.
'FAIRGROUNDS
Direct Economic Imbacts,
:
$ 148 million in trade area Annual Retail Sales or more. FIGURJ
V kVV 11 E W.":
$1,..5 million in Sales Tax -Revenue to City/year or, more. SITE ,,OV RV W:
• 1,038 Totdl New Direct. Empid y-e-es. Target, Tenant?r'ofil'es
Sketchers Macaroni Grill
• Target sales perfcirrhande, of $ 3 67 psf/yr. ' Fr s Electronics Linens�N' Things 'y Old, Navy, McDonalds
• !KEA :Bed, BathDress
& Beyond - Barn Houston's Steakhouse
Target Market & Inflow Searn-ents Pier 1 Toys !R, Us Golf Galaxy Staples
. PTA, STA & Regional Residents & Tourists; The North Face Patagonia Best Buy 'Circuit City
. Vblue,to Moderate price points. Petaluma Leakage A Sustainable Retail Strategy Study, January 2004 e 86