HomeMy WebLinkAboutAgenda Bill 3.F-Ord 05/17/2004 (1)3.F
EFFECTIVE DATE OF May 17, 2004
ORDINANCE Y
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4 ORDINANCE NO. 2181 N.C.S.
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6 AN ORDINANCE OF THE COUNCIL OF THE CITY OF PETALUMA AUTHORIZING
7 EXECUTION OF AN OPTION AGREEMENT WITH REGENCY PETALUMA LLC FOR A
8 NONEXCLUSIVE VEHICULAR AND PEDESTRIAN ACCESS EASEMENT, AUTHORIZING
9 EXECUTION OF AN EASEMENT AGREEMENT UPON SATISFACTION OF ALL REQUIRED
10 CONDITIONS, AND AUTHORIZING NEGOTIATION AND EXECUTION OF AN AMENDMENT TO
11 THE FAIRGROUNDS ASSOCIATION LEASE
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15 Introduced by Seconded by
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•1 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS FOLLOWS:
22 WHEREAS, the City of Petaluma is the owner of the Easement Area described in
23 Exhibit A to the Option Agreement attached hereto as Exhibit I; and,
24 WHEREAS, Regency Realty Group, Inc., a Florida corporation ( "RRG ") has an option
25 to purchase the Kenilworth School Site from the Petaluma Joint Union High School District; and,
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27 WHEREAS, the purchase of the Kenilworth School Site will enable the Petaluma School
28 District to construct a new junior high school to replace the dilapidated school facilities
29 currently located on the Kenilworth School Site; and,
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31 WHEREAS, access to the Kenilworth School Site is inadequate to make development
32 feasible, and RRG desires to acquire the right to obtain a nonexclusive pedestrian and
33 vehicular easement over the Easement Area in order to improve access to the Kenilworth
34 School Site and facilitate its development; and,
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36 WHEREAS, the redevelopment of the Kenilworth School Site will be of benefit to the City
37 and the Community Development Project Area and will be consistent with the redevelopment
38 plan adopted for the Project Area; and,
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40 WHEREAS, RRG has agreed to undertake certain obligations in connection with the
41 construction and maintenance of improvements located within the Easement Area and the
2 provision of replacement parking for the parking spaces currently located within the Easement
3 Area; and,
Ordinance No. 2181 N.C.S. Page 1
I WHEREAS, the Fair Association has agreed in principle that it will execute a
2 amendment to its lease with the City to exclude from the leased premises the Easement Area
3 and the Skateboard /Solar Collector Area, provided the City agrees to add the Payran
4 Firehouse property to the leased premises; and,
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6 WHEREAS, Regency Petaluma LLC, a Delaware limited liability company ( "Regency ") is
7 a wholly -owned and controlled subsidiary of RRG; and,
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9 WHEREAS, the City Council finds that the actions authorized and granted to the City
10 Manager under this ordinance are exempt from the provisions of the California Environmental
1 1 Quality Act (CEQA) pursuant to Sections 15061(b) (3), 15303, 15304, and 15333 of the CEQA
12 Guidelines.
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14 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PETALUMA, CALIFORNIA,
15 DOES HEREBY ORDAIN AS FOLLOWS:
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17 Section 1 . The City Manager is hereby authorized to execute an Option Agreement
18 substantially in the form attached hereto as Exhibit I pursuant to which Regency shall be
19 granted an option to acquire an easement across the Easement Area described in
20 Exhibit A to the Option Agreement on the terms and conditions set forth in the Option
21 Agreement.
22 Section 2. Provided that all conditions precedent to the exercise of the option have
23 been satisfied, the City Manager is hereby authorized to execute an Easement •
24 Agreement substantially in the form attached as Exhibit B to the Option Agreement
25 pursuant to which the Easement would be granted to Regency and Regency would be
26 obligated to construct and maintain street, sidewalk, lighting and landscaping in the
27 Easement Area.
28 Section 3. The City Manager is hereby authorized to negotiate and execute an
29 amendment to the lease by and between the City of Petaluma and the Fourth District
30 Agricultural Association pursuant to which (i) the Easement Area described in Exhibit A
31 to the Option Agreement and the Skateboard /Solar Panel Area described in Exhibit A -1
32 to the Option Agreement would be excluded from the leased premises, and (ii) the
33 Payran Firehouse Property would be added to the leased premises.
34 Section 4. The City Manager is hereby authorized to undertake such further action as
35 necessary to carry out the intent of this Ordinance.
36 Section 5 . If any section, subsection, sentence, clause or phrase or word of this
37 ordinance is for any reason held to be unconstitutional, unlawful or otherwise invalid by
38 a court of competent jurisdiction, such decision shall not affect the validity of the
39 remaining portions of this ordinance. The City Council of the City of Petaluma hereby
40 declares that it would have passed and adopted this ordinance and each and all
41 provisions thereof irrespective of the fact that any one or more of said provisions be
42 declared unconstitutional, unlawful or otherwise invalid.
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Ordinance No. 2181 N.C.S. Page 2
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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 /wed this 3rd day of May 2004.
ADOPTED this day of 2004, by the following vote:
AYES:
NOES:
ABSENT:
ATTEST:
Gayle Petersen, City Clerk
David Glass, Mayor
APPROVED AS TO FORM:
Richard R. Rudnansky, City Attorney
Ordinance No. 2181 N.C.S.
Page 3
61 Exhibit 1
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3 OPTION AGREEMENT
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6 THIS OPTION AGREEMENT ( "Option Agreement" or "Agreement ") is entered into
7 effective as of 2004 ( "Effective Date "), by and between the City of
8 Petaluma, a municipal corporation ( "City ") and Regency Realty Group, Inc., a Florida
9 corporation ( "Regency "). City and Regency are hereinafter collectively referred to as
10 the "Parties."
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12 A. City is the owner of certain real property (the "Easement Area ") located within
13 the City of Petaluma and more particularly described in Exhibit A attached
14 hereto and incorporated herein by this reference.
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16 B. Regency has an option to purchase the real property located at _ Kenilworth
17 Court ( "Kenilworth School Site ") from the Petaluma Joint Union High School
18 District ( "School District ").
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20 C.
Regency's purchase of the Kenilworth School Site will enable the School District
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to construct a new junior high school to replace the dilapidated school facilities
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currently located on the Kenilworth School Site.
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24 D.
Access to the Kenilworth School Site is inadequate to make development
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feasible, and Regency desires to acquire the right to obtain a nonexclusive
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pedestrian and vehicular easement ( "Easement ") over the Easement Area in
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order to improve access to the Kenilworth School Site and facilitate its
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development.
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30 E. The redevelopment of the Kenilworth School Site will be of benefit to the City and
31 the Community Development Project Area ( "Project Area "), and will be
32 consistent with the redevelopment plan adopted for the Project Area.
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34 F. At its meeting of May 3, 2004, the Petaluma City Council authorized the grant to
35 Regency of an easement across the Easement Area, contingent upon and
36 subject to certain conditions.
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38 G. In consideration for the grant of Easement and the rights granted hereunder,
39 Regency has agreed to undertake certain obligations in connection with the
40 construction and maintenance of improvements located within the Easement
41 Area and the provision of replacement parking spaces for those currently
42 located within the Easement Area.
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44 NOW THEREFORE, for good and valuable consideration, the receipt and
5 sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
10 6
Ordinance No. 2181 N.C.S. Page 4
1 1. Grant of Option. City hereby grants to Regency an option to acquire an
2 easement across the Easement Area ( "Option ") on the terms and conditions set forth •
3 herein and in the Easement Agreement ( "Easement Agreement ") attached hereto as
4 Exhibit B and incorporated herein by reference.
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6 2. Reservation of Rights /Nonexclusive Easement. Regency acknowledges that the
7 Easement shall be subject to (i) a reservation of rights allowing use of the Easement
8 Area for roadway, pedestrian and vehicular ingress, egress and access by members of
9 the public, (ii) City's right to grant easements to other parties for, among other
10 purposes, the installation of utilities and storm drain improvements in the Easement
1 1 Area, provided that Regency's use of the Easement is not unreasonably impaired
12 thereby, and (iii) City's right to convert the Easement Area to a public street provided
13 that such street provides access to the Kenilworth School Site comparable to the
14 access created by the Easement.
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16 3. Conditions Precedent. Regency's acquisition of the Easement is expressly
17 conditioned upon all of the following, and Regency and City agree that Regency shall
18 have no right to exercise the Option granted hereby prior to fulfillment of all of the
19 following:
20 a. Regency's acquisition of the Kenilworth School Site and Regency's
21 provision to City of evidence reasonably satisfactory to City that Regency possesses title
22 to the Kenilworth School Site.
23 b. Execution by the Fourth District Agricultural Association of the State of
24 California ( "Association ") of a legally binding amendment ( "Lease Amendment ") to
25 that certain Lease of Kenilworth Park for Fair, Exhibition and Recreation Purposes by and
26 between the City as Lessor and the Association as Lessee, dated January 1, 1973, and
27 amended October 3, 1996 (as so amended, the "Lease "), pursuant to which the
28 Easement Area and the "Skateboard Park and Solar Collector Area" (as more
29 particularly described in Exhibit A -1 attached hereto shall be excluded from the Lease.
30 C. Regency's satisfaction of (or Regency's execution of a legally binding
31 commitment to satisfy) all of the following conditions at Regency's sole expense:
32 (i) Provision to the Association of an easement granting the Association
33 and its employees, invitees, and patrons access to the Fairgrounds from Lindberg Street;
34 (ii) Either (a) performance of work necessary to pave a portion of the
35 property known as "Fairgrounds Parking Lot B" sufficient in size to replace parking
36 spaces that will be lost as a result of the use of the Easement Area, or (b) provision to
37 the Association of an easement allowing patrons of specified events the right to park
38 vehicles in the parking lot Regency shall construct on Regency's property;
39 (iii) Acquisition of the written consent of the Sonoma County Transit
40 Manager and of any other party from whom consent is required to the alteration of the
41 Park & Ride lot developed pursuant to that certain Petaluma Fairgrounds Park & Ride
42 Facility Agreement for Development, Use and Maintenance, dated October 3, 1996, by
43 and among the City, the County of Sonoma, the School District and the Association;
44 (iv) Installation of a sign for the Sonoma -Morin Fair on East Washington
45 Street; and
46 (v) Payment of the sum of [One Hundred Fifty Thousand Dollars •
47 ($150,000)] to the Association.
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Ordinance No. 2181 N.C.S. Page 5
1 e. Regency's acquisition of all entitlements ( "Project Approvals ") necessary for
2 the development of the Kenilworth School Site, including without limitation completion
3 of CEQA review for the project to be developed on such site and for the creation of a
4 roadway providing access to such site across the Easement Area. The Parties
5 acknowledge that this Agreement does not obligate the City to grant any approval or
6 authorization required for the development of the Kenilworth School Site or the
7 Easement Area.
8 f. Execution of an agreement pursuant to which Regency agrees, at its expense
9 (i) to construct a project in conformity with the Project Approvals, (ii) to construct and
10 install roadway, sidewalk, lighting and landscaping improvements (collectively
11 "Improvements ") in the Easement Area regardless of whether the City establishes a
12 public street in the Easement Area, and (iii) to maintain the Improvements unless and
13 until City establishes a public street in the Easement Area.
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15 4. Consideration. If the Project Approvals grant entitlements to develop a project
16 that includes at least 300,000 square feet of retail space in a mixed -use development
17 that includes housing, then provided that all conditions set forth in Section 3 have been
18 satisfied, Regency shall be obligated to pay no further consideration for the Easement
19 or the rights granted by this Agreement. If the condition set forth in the immediately
20 preceding sentence is not satisfied, then upon exercise of the Option, Regency shall
21 pay to City the fair market value at the time of exercise of (i) the Easement Area, and
22 (ii) the leasehold interest in the property known as the "Payran Street Firehouse
41 3 Property" which City has agreed to add to the premises leased to the Association in
4 order to induce Association to execute the Lease Amendment. If the Parties are
25 unable to agree upon a fair market value, then each Party shall appoint an appraiser.
26 If the two appraisers cannot agree upon a value, then they shall appoint a third
27 appraiser. If the third appraiser agrees with either of the original appraisers, the value
28 so established shall be binding on the Parties. If there is no such agreement, the middle
29 value shall be binding on the Parties. Payment of the consideration set forth in this
30 Section is not a condition precedent to acquisition of the Easement; provided however,
31 Regency shall be obligated to pay such consideration to City not later than thirty (30)
32 days following the determination of value pursuant to this Section, and in no event later
33 than 180 days following delivery of Regency's Notice of Exercise.
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35 5. Term. The term of the Option (the "Option Term ") shall commence on the date
36 when all conditions set forth in Section 3 hereof have been satisfied, and shall end at
37 5:00 p.m. on the seventh (7th) anniversary of the Effective Date; provided however, this
38 Option Agreement shall terminate and be of no further effect if Regency has not
39 acquired the Kenilworth School Site by June 30, 2004. Notwithstanding any contrary
40 provision contained herein, this Option Agreement shall terminate and be of no further
41 effect if and when City determines to establish a public street through the Easement
42 Area or in a substantially comparable location which will provide access to the
43 Kenilworth School Site comparable to the access provided by the Easement. No
44 compensation will be payable to Regency in the event of such termination.
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6 6. Notice of Exercise; Close of Escrow; Allocation of Costs. At any time during the
7 Option Term, Regency may exercise the Option by providing City with written notice of
48 its intent to exercise ( "Notice of Exercise ") together with evidence reasonably
Ordinance No. 2181 N.C.S. Page 6
1 satisfactory to City that all conditions set forth in Section 3 have been satisfied.
2 Conveyance of the Easement shall be consummated through an escrow to be opened
3 within three (3) business days following delivery of such Notice of Exercise. Unless
4 otherwise agreed to by the Parties, within thirty (30) days following delivery of the
5 Notice of Exercise, the Parties shall execute and deposit into escrow an Easement
6 Agreement substantially in the form attached hereto as Exhibit B , and shall cause a
7 copy thereof to be recorded in the Official Records of Sonoma County upon payment
8 by Regency of any consideration payable pursuant to Section 4 .
9 The cost of any investigation Regency undertakes in connection with acquisition of the
10 Easement, including but not limited to environmental investigations, shall be payable by
11 Regency. Property taxes and assessments shall be prorated as of the close of escrow,
12 and Regency shall be responsible for payment of all such charges from and after close
13 of escrow. Regency shall be responsible for payment of all costs of closing, including
14 without limitation, all escrow charges, transfer taxes, and title insurance premiums.
15 City covenants that it shall do nothing to cause the Easement Area to be subject to
16 liens, claims or encumbrances that would interfere with conveyance of the Easement
17 or Regency's use of the Easement Area.
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19 7. Assignment; No Third -Party Beneficiaries This Option Agreement and the option
20 conveyed hereby is personal to Regency and may not be assigned by operation of law
21 or otherwise without the express written consent of City which shall not be unreasonably
22 withheld or delayed provided that the assignee assumes all obligations of Regency
23 hereunder. This Agreement is not intended to benefit, and shall not run to the benefit
24 of, or be enforceable by, any person or entity other than the Parties and their permitted •
25 successors and assigns.
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27 8. Miscellaneous Provisions.
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29 8.1 Notices. Except as otherwise specified in this Agreement, all notices to be
30 sent pursuant hereto shall be made in writing, and sent to the parties at their respective
31 addresses specified below or to such other address as a party may designate by written
32 notice delivered to the other parties in accordance with this Section. All such notices
33 shall be sent by:
34 (i) personal delivery, in which case notice shall be deemed delivered
35 upon receipt;
36 (ii) certified or registered mail, return receipt requested, in which case
37 notice shall be deemed delivered two (2) business days after deposit, postage
38 prepaid in the United States mail;
39 (iii) nationally recognized overnight courier, in which case notice shall be
40 deemed delivered one (1) day after deposit with such courier; or
41 (iv) facsimile transmission, in which case notice shall be deemed delivered
42 on transmittal, provided that a transmission report is generated reflecting the
43 accurate transmission thereof.
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45 City: CITY OF PETALUMA
46 11 ENGLISH STREET
47 PETALUMA, CA 94952
48 Attn:
Ordinance No. 2181 N.C.S. Page 7
• 1 Telephone:
2 Facsimile:
3
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5 REGENCY: Regency Realty Group, Inc.
6 1850 Mt. Diablo Blvd., Suite 225
7 Walnut Creek, CA 94596
8 Attn: Tom Engberg
9 Telephone:
10 Facsimile:
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12 With copy to: Hanson Bridgett Marcus Vlahos Rudy LLP
13 80 E. Sir Frances Drake Blvd, Suite 3E
14 Larkspur, CA 94939
15 Attn: Mary K. McEachron
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18 8.2 Attorneys' Fees. In any action at law or in equity, arbitration or other
19 proceeding arising in connection with this Agreement, the prevailing party shall recover
20 reasonable attorneys' fees and other costs, including but not limited to court costs and
21 expert and consultants fees incurred in connection with such action, in addition to any
22 other relief awarded, and such attorneys' fees and costs shall be included in any
3 judgment in such action.
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25 8.3 Amendments. This Agreement may be amended only by a written
26 instrument executed by the Parties or their successors in interest.
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28 8.4 Severability. If any provision of this Agreement shall be held to be invalid,
29 void or unenforceable, the validity, legality and enforceability of the remaining portions
30 hereof shall not in any way be affected or impaired thereby.
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32 8.5 Waiver. A waiver by either party of the performance of any covenant or
33 condition herein shall not invalidate this Agreement nor shall it be considered a waiver
34 of any other covenant or condition, nor shall the delay or forbearance by either party in
35 exercising any remedy or right be considered a waiver of, or an estoppel against, the
36 later exercise of such remedy or right.
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38 8.6 Remedies; No Damages Against City. Upon the occurrence of an event
39 of default hereunder, the Parties may pursue all remedies at law or in equity, expressly
40 including the remedy of specific performance of this Agreement; provided however, in
41 no event shall damages be awarded against City upon an event of default hereunder,
42 upon termination of this Agreement pursuant to the provisions hereof, or upon
43 determination by a court of competent jurisdiction that this Agreement or any part
44 hereof is unenforceable or invalid.
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6 8.7 Indemnification. Regency shall indemnify, defend and hold harmless City
07 and the Petaluma Community Development Commission and their respective boards,
48 commissions, and elected and appointed officials, employees, agents and contractors
Ordinance No. 2181 N.C.S. Page 8
I (collectively "Indemnitees ") from and against all claims, actions, proceedings, •
2 demands, liabilities, judgments, losses, expenses (including reasonable attorneys' fees
3 and expenses) and costs (collectively "Claims ") arising out of or related to this
4 Agreement including any claim, action or proceeding to attack, set aside, void or
5 annul this Agreement or any part hereof. City shall promptly notify Regency of any
6 such Claim. Nothing contained in this Section shall prohibit the City from participating
7 in a defense of any Claim, and if the City chooses to do so, Regency shall reimburse
8 City for reasonable attorneys' fees and expenses incurred by City.
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10 8.8 Entire Agreement, This Agreement, together with the Easement
1 1 Agreement, the Lease Amendment, and Exhibits A through C, attached hereto and
12 incorporated herein by this reference, contains the entire agreement between the
13 Parties with respect to the subject matter hereof, and supersedes all prior negotiations,
14 documents and discussions pertaining thereto.
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16 8.9 Parties Not Co- Venturers; No Brokers. Nothing in this Agreement is
17 intended to or shall establish the Parties as partners, co- venturers, or principal and
18 agent with one another. Each Party represents and warrants to the other that no
19 brokers have been retained or consulted in connection with this transaction other than
20 as disclosed in writing to the other party. Each Party shall defend, indemnify, and hold
21 the other Party harmless from any claim, expense, cost, loss or liability imposed by any
22 party claiming a fee or commission in connection with this Agreement or the acquisition
23 of the Easement and arising out of the indemnifying Party's conduct.
24 • 25 8.10 Captions. The captions of the Sections of this Agreement are for
26 convenience only and are not intended to affect the interpretation or construction of
27 the provisions hereof.
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29 8.11 Counterparts. This Agreement may be executed in multiple counterparts,
30 each of which shall be an original and all of which together shall constitute one
31 agreement.
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33 8.12 Further Assurances; Memorandum. The Parties agree to execute,
34 acknowledge and deliver to the other such other documents and instruments, and to
35 undertake such actions, as either shall reasonably request or as may be necessary to
36 carry out the intent of this Agreement. Without limiting the generality of the foregoing
37 (i) the Parties agree to execute and record in the Official Records of Sonoma County a
38 Memorandum of Option substantially in the form attached hereto as Exhibit C , and (ii)
39 upon termination of this Agreement or upon expiration of the Option, Regency agrees
40 to execute, acknowledge, and deliver to City a quit claim in recordable form within ten
41 (10) days following request by City, and to execute, acknowledge and deliver such
42 other documents reasonably necessary to remove the cloud of this Agreement from
43 title.
•
Ordinance No. 2181 N.C.S. Page 9
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8.13 Governing Law; Time is of the Essence. This Agreement shall be
interpreted under and pursuant to the laws of the 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
By:
Its:
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
Ordinance No. 2181 N.C.S.
Page 10
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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.
Ordinance No. 2181 N.C.S.
Page 11
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2 Exhibit A
3 Easement Area
4 (Attach legal description.)
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Ordinance No. 2181 N.C.S. Page 12
h
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Petaluma.
-:Swirn, Center
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Skateboard
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Exhibit A
Petaluma Fairgrounds
AW
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Proposed Easement
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Area
Scale: 1" 100'
Total easement area is approx.
55,500 sq ft or 1.27 acres
April 29, 2004
Ordinance No.
2181 N.C.S.
Page 13
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Exhibit A -1
Skateboard Park and Solar Collector Area
(Attach legal description.)
Ordinance No. 2181 N.C.S.
Page 14
�� /r.4
1 Exhibit B
2 Easement Agreement
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Ordinance No. 2181 N.C.S. Page 16
0 EXHIBIT B TO OPTION AGREEMENT
Recording Requested by
and when Recorded, return 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 FUR HLU
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 and 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 of the Kenilworth School Site has enabled or will enable the
School District to construct a new junior high school to replace the dilapidated school 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 meeting of May , 2004, the Petaluma City Council authorized the execution
689280 -3
Ordinance No. 2181 N.C.S. Page 17
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 public will 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.
2. Reservation of Rights. Regency acknowledges 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 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. 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 (10) 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 annul this Agreement or
any part hereof.
•
•
Ordinance No. 2181 N.C.S. Page 18
U
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 covenant 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 or other instrument
conveying, granting or assigning any property affected or benefited by this Agreement
or any portion thereof or interest therein shall take title subject to this Agreement, and
such person shall be deemed to have assumed all of the applicable obligations imposed
hereby with regard to such property regardless of whether this Agreement 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 the Parties 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 accordance with 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) install and maintain
is adequate lighting for pedestrian and vehicular travel across the Easement Area, and (iii)
Ordinance No. 2181 N.C.S. Page 19
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) 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 and pavement 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 irrigation 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 Easement Area.
(c) Regency shall install at Regency's expense or shall reimburse City for the
cost of 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 Regency may
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 workmanship, 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 Development Commission and their respective boards,
commissions and elected and appointed officials, employees, agents and contractors
( "Indemnitees ") 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 Indemnitees. Furthermore, Regency shall
indemnify, defend and hold harmless Indemnitees from and against any claim, action or
Ordinance No. 2181 N.C.S. Page 20
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 policy shall be reviewed and adjusted every five (5) years, beginning from 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 City as additional insured
thereunder, (ii) stipulate that the insurance is primary insurance and that no insurance
or self- insurance of City will be called upon to contribute to a loss, 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 Insurance Reports.
(e) The Parties acknowledge that some of the foregoing insurance requirements
is 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
Ordinance No. 2181 N.C.S. Page 21
Agreement.
11. Events of Default; Remedies. An Event of Default under this Agreement shall
occur if either Party fails to comply with any of the covenants or obligations hereunder
and does not cure such failure within ten (10) days after receipt of written notice thereof
(or in the case of a nonmonetary default, fails to commence to cure such default within
such ten -day period and thereafter proceeds 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 in equity, expressly including the remedy of specific performance of
this Agreement; 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.
12. Miscellaneous.
12.1 Effective Date This Agreement shall be effective as of the date this
document is recorded in the Official Records 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 venturers with
one another. Each Party represents and warrants to the other that no brokers have
been retained or consulted 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.
12.4 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) personal 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;
•
Ordinance No. 2181 N.C.S. Page 22
(iii) national) recognized overnight courier, with charges re
(...) Y aid or 9 9 9 prepaid
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
0 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 94939
Attn: Mary K. McEachron
12.5 Further 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 as may be necessary to carry out the intent
of this Agreement.
12.6 No Third Party 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 Severability If any term, provision, covenant or condition contained in this
Ordinance No. 2181 N.C.S. Page 23
Agreement is held by a court of competent jurisdiction to be invalid, 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 Attorneys' 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 limited to 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.
12.10 Counterparts This Agreement may be executed in multiple counterparts,
each of which shall be an 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 by the 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.
•
Ordinance No. 2181 N.C.S. Page 24
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:
L
City Clerk
REGENCY REALTY GROUP, INC.,
a Florida corporation
By:
Thomas K. Engberg,
Its: Senior Vice President
is
Ordinance No. 2181 N.C.S. Page 25
i t
2 Exhibit C
3 Memorandum of Option
4
(Attach form of Memorandum of Option)
Recording Requested by
and when Recorded, return to:
CITY OF PETALUMA
11 ENGLISH STREET
PETALUMA, CA 94952
Attn: City Clerk
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103,27383
5 (SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE)
7 MEMORANDUM OF OPTION
8 This Memorandum of Option (this "Memorandum ") dated as of
9 , 2004, is made by the City of Petaluma, a municipal corporation
10 ( "City ") and Regency Realty Group, Inc., a Florida corporation ( "Regency ").
1 1 Pursuant to an Option Agreement dated as of , 2004 by and
0 2 between City and Regency (the "Option Agreement "), City has granted to Regency an
13 option ( "Option ") to acquire, on the terms and conditions set forth in the Option
14 Agreement, a nonexclusive ingress, egress and access easement across real property
15 located in the City of Petaluma, Sonoma County, California and more particularly
16 described in Exhibit A attached hereto and incorporated herein (the "Easement Area ").
17 This Memorandum incorporates all of the terms and provisions of the Option
18 Agreement as though fully set forth herein. The term of the Option commences on the
19 date all conditions to the exercise of the Option as set forth in the Option Agreement
20 have been satisfied. The Option terminates upon the earlier of (i) the occurrence of
21 certain events as set forth in the Option Agreement or (ii) , 2011 (the seventh
22 anniversary of the Effective Date of the Option Agreement).
23 This Memorandum is solely for recording purposes and shall not be construed to
24 alter, modify, amend or supplement the Option Agreement. In the event of any
25 inconsistency between this Memorandum and the Option Agreement, the Option
26 Agreement shall control.
27 This Memorandum and the Option Agreement shall bind and inure to the benefit
28 of the parties and their respective heirs, successors and assigns, subject however to
29 restrictions set forth in the Option Agreement regarding assignment.
30
31
Ordinance No. 2181 N.C.S. Page 26
I IN WITNESS WHEREOF, the parties have executed this Memorandum as of the date first
2 written above.
3
4 CITY OF PETALUMA
5
6 By:
7
8 Name:
9
10 Title:
12 APPROVED AS TO FORM:
13
14 By:
15 City Attorney
16
17 ATTEST:
18
19 By:
20 City Clerk
21
22
23 REGENCY REALTY GROUP, INC.,
24 a Florida Corporation
25
26 By:
27 Thomas K. Engberg,
28 Its: Senior Vice President
29
30
•
Ordinance No. 2181 N.C.S. Page 27
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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.
Ordinance No. 2181 N.C.S.
Page 28
*1 Exhibit II
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3 Payran Fire Station Property
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Ordinance No. 2181 N.C.S. Page 29
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