HomeMy WebLinkAboutOrdinance 2181 N.C.S. 05/17/2004 EFFECTIVE DATE OF
ORDINANCE
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2 June 17, 2004
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4 ORDINANCE NO. 2181 N.C.S.
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7 AN ORDINANCE OF THE COUNCIL OF THE CITY OF PETALUMA
8 AUTHORIZING EXECUTION OF AN OPTION AGREEMENT
9 WITH REGENCY REALTY GROUP, INC.
10 FOR A NONEXCLUSIVE VEHICULAR AND PEDESTRIAN ACCESS EASEMENT,
1 1 AUTHORIZING EXECUTION OF AN EASEMENT AGREEMENT
12 UPON SATISFACTION OF ALL REQUIRED CONDITIONS,
13 AND AUTHORIZING NEGOTIATION AND EXECUTION
14 OF AN AMENDMENT TO THE FAIRGROUNDS ASSOCIATION LEASE
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18 Introduced by Seconded by
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21 Council Member Torliatt Council Member O'Brien
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24 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS FOLLOWS:
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26 WHEREAS, the City of Petaluma is the owner of the Easement Area described in
27 Exhibit A to the Option Agreement attached hereto as Exhibit I; and,
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29 WHEREAS, Regency Redlty Group, Inc., a Florida corporation ("RRG") has an
30 option to purchase the Kenilworth School Site from the Petaluma Joint Union High
31 School District; and,
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33 WHEREAS, RRG's purchase of the Kenilworth School Site will enable the Petaluma
34 School District to construct a new junior high school to replace the dilapidated school
35 facilities currently located on the Kenilworth School Site; and,
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37 WHEREAS, access to the Kenilworth School Site is inadequate to make
38 development feasible, and RRG desires to acquire the right to obtain a nonexclusive
39 pedestrian and vehicular easement over the Easement Area in order to improve
40 access to the Kenilworth School Site and facilitate its development; and,
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42 WHEREAS, the redevelopment of the Kenilworth School Site will be of benefit to
43 the City and the Community Development Project Area and will be consistent with the
44 redevelopment plan adopted for the Project Area; and,
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46 WHEREAS, RRG has agreed to undertake certain obligations in connection with
47 the construction and maintenance of improvements located within the Easement Area
Ordinance No. 2181 N.C.S. Page 1
1 and the provision of replacement parking for the parking spaces currently located
2 within the Easement Area; and,
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4 WHEREAS, the Fair Association has agreed in principle that it will execute an
5 amendment to its lease with the City to exclude from the leased premises the Easement Area
6 and the Skateboard/Solar Collector Area, provided the City agrees to add the Payran
7 Firehouse property to the leased premises; 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
18 Agreement substantially in the form attached hereto as Exhibit I pursuant to
19 which RRG shall be granted an option to acquire an easement across the
20 Easement Area described in Exhibit A to the Option Agreement on the terms and
21 conditions set forth in the Option Agreement.
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23 Section 2. Provided that all conditions precedent to the exercise of the option
24 have been satisfied, the City Manager is hereby authorized to execute an
25 Easement Agreement substantially in the form attached as Exhibit B to the
26 Option Agreement pursuant to which the Easement would be granted to RRG
27 and RRG would be obligated to construct and maintain street, sidewalk, lighting
28 and landscaping in the Easement Area.
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30 Section 3. The City Manager is hereby authorized to negotiate and execute
31 an amendment to the lease by and between the City of Petaluma and the
32 Fourth District Agricultural Association pursuant to which (i) the Easement Area
33 described in Exhibit A to the Option Agreement and the Skateboard/Solar
34 Collector Area described in Exhibit A-1 to the Option Agreement would be
35 excluded from the leased premises, and (ii) the Payran Firehouse Property
36 (depicted in Exhibit II) would be added to the leased premises.
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38 Section 4. The City Manager is hereby authorized to undertake such further
39 action as necessary to carry out the intent of this Ordinance.
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41 Section 5. If any section, subsection, sentence, clause or phrase or word of
42 this ordinance is for any reason held to be unconstitutional, unlawful or otherwise
43 invalid by a court of competent jurisdiction, such decision shall not affect the
44 validity of the remaining portions of this ordinance. The City Council of the City
45 of Petaluma hereby declares that it would have passed and adopted this
46 ordinance and each and all provisions thereof irrespective of the fact that any
47 one or more of said provisions be declared unconstitutional, unlawful or
48 otherwise invalid.
Ordinance No. 2181 N.C.S. Page 2
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2 Section 6. This ordinance shall become effective thirty (30) days after the
3 date of its adoption by the Petaluma City Council.
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5 Section 7. The City Clerk is hereby directed to post this ordinance for the
6 period and in the manner required by the City Charter.
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8 INTRODUCED and ordered posted/e~ this 3~d day of May 2004.
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10 ADOPTED this 17'" day of May 2004, by the following vote:
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12 AYES:
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14 NOES:
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16 ABSENT:
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21 David Glass, Mayor
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27 ATTEST: APPROVED AS TO FORM:
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32 Gdyle P ersen, City Clerk Richard R. Rudnansky, Cif rney
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Ordinance No. 2181 N.C.S. Page 3
1 Exhibit
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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 Uriion 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
21 to construct a new junior high school to replace the dilapidated school facilities
22 currently located on the Kenilworth School Site.
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24 D. Access to the Kenilworth School Site is inadequate to make development
25 feasible, and Regency desires to acquire the right to obtain a nonexclusive
26 pedestrian and vehicular easement ("Easement") over the Easement Area in
27 order to improve access to the Kenilworth School Site and facilitate its
28 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
45 sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
46
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 fo 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, 1.973, 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 8~ 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-Marin 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.
48
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
1 1 "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
23 Property" which City has agreed to add to the premises leased to the Association in
24 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 (7'") 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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46 6. Notice of Exercise; Close of Escrow; Allocation of Costs. At any time during the
47 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 Exhibif 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.
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10 The cost of any investigation Regency undertakes in connection with acquisition of the
1 1 Easement, including but not limited to environmental investigations, shall be payable by
12 Regency. Property taxes and assessments shall be prorated as of the close of escrow,
13 and Regency shall be responsible for payment of all such charges from and after close
14 of escrow. Regency shall be responsible for payment of all costs of closing, including
15 without limitation, all escrow charges, transfer taxes, and title insurance premiums.
16 City covenants that it shall do nothing to cause the Easement Area to be subject to
17 liens, claims or encumbrances that would interfere with conveyance of the Easement
18 or Regency's use of the Easement Area.
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20 7. Assignment; No Third-Party Beneficiaries. This Option Agreement and the option
21 conveyed hereby is personal to Regency and may not be assigned by operation of law
22 or otherwise without the express written consent of City which shall not be unreasonably
23 withheld or delayed provided that the assignee assumes all obligations of Regency
24 hereunder. This Agreement is not intended to benefit, and shall not run to the benefit
25 of, or be enforceable by, any person or entity other than the Parties and their permitted
26 successors and assigns.
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28 8. Miscellaneous Provisions.
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30 8.1 Notices. Except as otherwise specified in this Agreement, all notices to be
31 sent pursuant hereto shall be made in writing, and sent to the parties at their respective
32 addresses specified below or to such other address as a party may designate by written
33 notice delivered to the other parties in accordance with this Section. All such notices
34 shall be sent by:
35 (i) personal delivery, in which case notice shall be deemed delivered
36 upon receipt;
37 (ii) certified or registered mail, return receipt requested, in which case
38 notice shall be deemed delivered two (2) business days after deposit, postage
39 prepaid in the United States mail;
40 (iii) nationally recognized overnight courier, in which case notice shall be
41 deemed delivered one (1) day after deposit with such courier; or
42 (iv) facsimile transmission, in which case notice shall be deemed delivered
43 on transmittal, provided that a transmission report is generated reflecting the
44 accurate transmission thereof.
45
Ordinance No. 2181 N.C.S. Page 7
1 City: CITY OF PETALUMA
2 1 1 ENGLISH STREET
3 PETALUMA, CA 94952
4 Attn:
5 Telephone:
6 Facsimile:
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9 REGENCY: Regency Realty Group, Inc.
10 1850 Mt. Diablo Blvd., Suite 225
1 1 Walnut Creek, CA 94596
12 Attn: Tom Engberg
13 Telephone:
14 Facsimile:
1S
16 With copy to: Hanson Bridgett Marcus Vlahos Rudy LLP
17 80 E. Sir Frances Drake Blvd, Suite 3E
18 Larkspur, CA 94939
19 Attn: Mary K. McEachron
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22 8.2 Attorneys' Fees. In any action at law or in equity, arbitration or other
23 proceeding arising in connection with this Agreement, the prevailing party shall recover
24 reasonable attorneys' fees and other costs, including but not limited to court costs and
25 expert and consultants fees incurred in connection with such action, in addition to any
26 other relief awarded, and such attorneys' fees and costs shall be included in any
27 judgment in such action.
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29 8.3 Amendments. This Agreement may be amended only by a written
30 instrument executed by the Parties or their successors in interest.
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32 8.4 Severability. If any provision of this Agreement shall be held to be invalid,
33 void or unenforceable, the validity, legality and enforceability of the remaining portions
34 hereof shall not in any way be affected or impaired thereby..
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36 8.5 Waiver. A waiver by either party of the performance of any covenant or
37 condition herein shall not invalidate this Agreement nor shall it be considered a waiver
38 of any other covenant or condition, nor shall the delay or forbearance by either party in
39 exercising any remedy or right be considered a waiver of, or an estoppel against,. the
40 later exercise of such remedy or right.
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42 8.6 Remedies; No Damages Against City. Upon the occurrence of an event
43 of default hereunder, the Parties may pursue all remedies at law or in equity, expressly
44 including the remedy of specific performance of this Agreement; provided however, in
45 no event shall damages be awarded against City upon an event of default hereunder,
46 upon termination of this Agreement pursuant fo the provisions hereof, or upon
47 determination by a court of competent jurisdiction that this Agreement or any part
48 hereof is unenforceable or invalid.
Ordinance No. -2181 N.C.S. Page 8
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2 8.7 Indemnification. Regency shall indemnify, defend and hold harmless City
3 and the Petaluma Community Development Commission and their respective boards,
4 commissions, and elected and appointed officials, employees, agents and contractors
5 (collectively "Indemnitees") from and against all claims, actions, proceedings,
6 demands, liabilities, judgments, losses, expenses (including reasonable attorneys' fees
7 and expenses) and costs (collectively "Claims") arising out of or related to this
8 Agreement including any claim, action or proceeding to attack, set aside, void or
9 annul. this Agreement or any part hereof. City shall promptly notify Regency of any
10 such Claim. Nothing contained in this Section shall prohibit the City from participating
1 1 in a defense of any Claim, and if the City chooses to do so, Regency shall reimburse
12 City for reasonable attorneys' fees and expenses incurred by City.
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14 8.8 Entire Agreement. This Agreement, together with the Easement
15 Agreement, the Lease Amendment, and Exhibits A through C, attached hereto and
16 incorporated herein by this reference, contains the entire agreement between the
17 Parties with respect to the subject matter hereof, and supersedes all prior negotiations,
18 documents and discussions pertaining thereto.
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20 8.9 Parties Not Co-Venturers; No Brokers. Nothing in this Agreement is
21 intended to or shall establish the Parties as partners, co-venturers, or principal and
22 agent with one another. Each Party represents and warrants to the other that no
23 brokers have been retained or consulted in connection with this transaction other than
24 as disclosed in writing to the other party. Each Party shall defend, indemnify, and hold
25 the other Party harmless from any claim, expense, cost, loss or liability imposed by any
26 party claiming a fee or commission in connection with this Agreement or the acquisition
27 of the Easement and arising out of the indemnifying Party's conduct.
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29 8.10 Captions. The captions of the Sections of this Agreement are for
30 convenience only and are not intended to affect the interpretation or construction of
31 the provisions hereof.
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33 8.1 1 Counterparts. This Agreement may be executed in multiple counterparts,
34 each of which shall be an original and all of which together shall constitute one
35 agreement.
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37 8.12 Further Assurances; Memorandum. The Parties agree to execute,
38 acknowledge and deliver to the other such other documents and instruments, and to
39 undertake .such actions, as either shall reasonably request or as may be necessary to
40 carry out the intent of this Agreement. Without limiting the generality of the foregoing
41 (i) the Parties agree to execute and record in the Official Records of Sonoma County a
42 Memorandum of Option substantially in the form attached hereto as Exhibit C, and (ii)
43 upon termination of this Agreement or upon expiration of the Option, Regency agrees
44 to execute, acknowledge, and deliver to City a quit claim in recordable form within ten
45 (10) days following request by City, and to execute, acknowledge and deliver such
46 other documents reasonably necessary to remove the cloud of this Agreement from
47 title.
Ordinance No. 2181 N.C.S. Page 9
1 8.13 Governing Law; Time is of the Essence. This Agreement shall be
2 interpreted under and pursuant to the laws of the State of California without regard to
3 principles of conflict of laws. Time is of the essence and is a material term. for all
4 conditions and provisions contained in this Agreement.
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6 IN WITNESS WHEREOF, the City and Regency have executed this Option
7 Agreement as of the date first written above.
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9 REGENCY
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11 By:_
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13 Its:
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16 CITY OF PETALUMA
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18 By:
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20 Its:
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24 ATTEST:
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28 City Clerk
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30 APPROVED AS TO FORM:
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34 City Attorney
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Ordinance No. 2181 N.C.S. Page 10
1
2 STATE OF CALIFORNIA )
3 ) ss.
4 COUNTY OF SONOMA )
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7 On before me, , personally
8 appeared , personally known to
9 me (or proved tome that on the basis of satisfactory evidence) to be the person(s)
10 whose name(s) is/are subscribed to the within instrument and acknowledged to me
1 1 that he/she/they executed the same in his/her/their authorized capacity(ies), and that
12 by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
13 which the person(s) acted, executed the instrument.
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15 WITNESS my hand and official seal.
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Ordinance No. 2181 N.C.S. Page 1 1
r
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2
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4 Exhibit A
5 Easement Area
6 (Attach legal description.)
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Ordinance No. 2181 N.C.S. Page 12
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Ordinance No. 2181 N.C.S. Page 13
1
2 Exhibit A-1
3 Skateboard Park and Solar Collector Area
4 (Attach legal description.)
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Ordinance No. 2181 N.C.S. Page 14
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Scale: 1" = 100' Swim Center ~ i
April 29, 2004
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Ordinance No. 21$1 N.C.S. Page 15
1 Exhibit B
2 Easement Agreement
3 (Attach form of Easement Agreement.)
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Ordinance No. 2181 N.C.S. Page 16
EXHIBIT B TO OPTION AGREEMENT
Recordiria Requested by
and ~~rhen Recorded, return to:
City Of Petaluma
11 English Street
Petaluma, CA 94952
Attn: City Clerk
ExEMF'T FROM RECORDING FEES PER GOVERNMENT CODE
§6103,27383
, _
(SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE)
EASEIV3ENT AGREEMENT
This Easement Agreement ("Agreement"), dated as of ,
2U~?4, is executed by and between the City of Petaluma, a California municipal
corgi-~aration ("City") and Regency Realty Group, a Florida corporation ("Regency°'), City
ao d Regency are hereinafter collectively referred to as the "Parties."
RECITALS
City is the -owner of certain real property (the "Easemert Area") located
~rvithin the City of Petaluma and more particularly described in Exhibit A attached hereto
d:~d incorporated herein by this reference.
Regency has purchased. the real property located at _ Kenilworth Court
("Kenilworth School Site") from the Petaluma Joint Union High School District ("Schocsl
District").
C. Regency's purchasw ofi the Kenilworth School Site has enab!ec' or will enahle the
School District to construct a .new junior high school to replace the dilapidated. school facilities
located on the irenilworth School Site.
D. Access to the Kenilworth School Site is inadequate to make development r'easibfe,
and P.egency 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 ("P~oject 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 al! 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 ("Improverr>,ents") ;Hill be constructed and installed in the
Easement Area, and (iii) tl~e 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 Pdrties agree as follows.
1. Grant of Easement. Gity .hereby grants to Regency, subject to the terms and
conditions set forth_in this Agreement, a nonexclusive easerr?ent for pedestrian and
verlicular ingress, egress and access ("Easernerrt") across the Easement Area for ~.rse
by Regency and its employees, licensees, agents, contractors, invitees, guests, visitors,
crrlstomers, vendors, service providers, and tenants for the purpose of providing access
to and from the Yenllwarth 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 ac~.ess by members cf the public, (ii)
Gity's right 'to grant easements. to other partiE,s 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 Kenil~varth School Site comparable to the access created by the
Easement. Regency acknowledges and agrees that upon termination of the Easement
in accordance 4^rith c!as?se (iii) of this Section: (a) Regency shall not be entitled io env.
form of compensation (including without limitation, compensation for the cost of
constru;;tion 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 Glairns 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 i•8
3.. Character of Easement.
(a) Thy easer~
gent 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 servierrt estate.
(b) The easement created by this Agreement is appurtenant to the dominant
estate, sh~als ru!°r with the land, and may not be transferred, assigned or encumbered
except as an appurtenance to such dominant estate.
(c) Each covenant contained ir, this Agreement constitutes a covenant running
with 'the land anc! shall inure to the benefit of and be binding upon the Parties and ~-heir
respective Successors and assigns., Any person accepting a deed or other instrument
. conveying, grantir~3 or assigning any property affected or benefited by this Agreement
or any portion thereof or interest therein shall take title subject to this A.greemer~t, and
such ;.person shali.;.be deemed tc Dave assumed all of the applicable obligations impocd
hereby ,~?ith regara to such property regardless of whether this Agreement is mentioned
in such died or ot~er instrumenfi. VUhenever a reference in This ;agrpemer~t 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
sc expressed.
4. 7uration. Subject to City's right to terminate the Easement upon the creation of
a .public street pcirsuant to Section 2, the Easement shat{ be perpetual in duration unless
the Parties mut~.aiiy agree in writing to terminate the Easement.
5. No Barrier.. The Parfii~s agree that absent the written corrsent of the Parties, rip
wall, fence, or barrier of any kind whi~,h impairs or impedes access to, ar use of, the
Easerent shall be constructed or maintained on or adjacent to the Easement Area, nor
shall fihe Parties da anything which shall Nrevent, 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 KeniiU?orth Sc:haol Site. At Regency`s sole cast 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
adequate lighting for pedestrian and vehicular travel across the Easement Area, and (iii)
Ordinance No. 2181 N.C.S. Page ? 9
maintain the Easement Area in compliance with applicable laws and regulations,
including ~rrithout 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 steal! be
responsible for each of the followring with respect tc the-Easem-ant 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 grill
in a!! respects be equal to such original material in quality, appearance and durability,
(ii) ;~,aintenance and irrigation of landscaping, (iii) maintenance and repair of such
appropriate signs, markers and light fixtures as reasonably required; and (iv) removal Gs
papers, debris and refuse from the Easement Aa-ea.
(c) Regency shall install at Regency's expense or shall reimburse City for the
test cf installation and maintenance of a!l traffic lights and pedestrian signals City in its
reasonable discretion determines are necessary pursuant to the i~roject Approvals and
environmental review to ensure the safe use of the Easement Area, including v~rithout
_ fimitatien, traffic signals that may be located at the East Washington Street and the
_ Kenil:~orth Court entrances to the Easement Area. City shat; provide Regency with a
stater-nent of suc~ ~ .expenses together with such documentation as Regency may
. reasonably request, and Regency shall remit such sum within 3i3 days following receipt
of SUC!'1 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 i3usir!ess District Downtown Streetscape Master Pian, and
sf~all peg corm al! required work in a timely manner and in accordance with generally
accepted principles cif workmanship, using best efforts to minimize disruption in the use
of the Easement Area during the course of such work.
a. Indemnification. Regency shaft indemnify, defend 'and hold harmless City and
the Petaluma Community Development Commission and their respective boards,
commissions and elected and appointed officials, employees, agents ante contractors
("Irt~9emnitees") from and against all actions, proceedings, claims, demands, liabilities,
judgments, losses, expenses (including reasonable attorneys' foes and expenses) and
costs (all of the foregoing, rollectiveiy "Claims") arising out of or related to Regency's
performance or failure to perform its construction and maintenance obligations
described in Section 6 except tc the extent the same are attributable to the gross
negligence or willful misccnduct of Indemnitees_ Furthermore, Regency shall
indemnify, defend and hold harrnfess Indemnitees from and against any claim, action or
Ordinance No. 2 i 81 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 ii ~ a defense of any Claim, and if the City
chooses to do so, Regency.shail reimburse Gity 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 ail taxes and assessments,
including without limitation possessory interest taxes, if any, payable with respect to the
Easement Area.
1 C. Insurance.
(a) Regency shall at a!i times during the term of this Agreement maintain, in full
force and effect, commercially reasonable policies of commercial gQnera! liability
insurance including coverage for injury to or death of persons and damage to or
'`w
destruction of property resulting from the construction, use, operation, repair and
maintenance of th:e Easement Area and the improvements to be located therein, U?ith a
financially responsible insurance col~pany or companies approved by City, in the
amount of not less than. Five Million Dollars ($S,000,CCO) per occurrence and. Five
Million Dollars {$S;CCC,000) annual general aggregate. The liability limit under earth
insurance policy shall be reviewed and adjusted every five (5) years, beginning from the
date of this Agr4e;~ent as mutually agreed by ti-re Parties. If the Parties are unabia to
agree, the liability .;limit of each polioy shall be increased by the percentage by whit.-h the
Consumer Price Index (All Urban Consumers} for the San Francisco-~?akland-San. Josa
metropolitan area-`published by the U.S. Departri~ent of labor has increased since the
last date on which the liability limits wore se:.
(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 Gity as additional insured
thereunder, (ii} stipulate that the insurance is primary insurance and that no insurance
orself-insurance of City will be tailed 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 nat less than A:Vlli according to Best's Insurance 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 tf~is
Ordinance IJo. 218 i rJ.C.S. Page 21
Agreement.
11. Events of Default; Remedies. An Event of Default under this Agreement shall
occur if eith~vr Party fails to comply with any of the covenants or obligations hert;undtr
and does nit 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 len-day period and tf ioreafter proceeds with due diligence to cure such defau~t.)
. .Upon the occurrence of an event of default hereunder, the Parties may pursue all
remediES at la~~~ or in equity, expressly including the remedy of specific par rori~n,ance of
this A~reerrunt; provided however, in no event shall damages be awarded against City
upon are eve, st of default tereunder, upon termination of this Agreernant pursuant to the
provisions hereof; or upon determination by a court of competent iurisdiction that this
Agreement or' any part hereof is !unenforceable or invalid.
12. I~~isc;ellaneous.
12.1 Effective Caere. This Agreement shall be effective as of the d Ate this
docun-ient 'ss r Q,,orded in the ~Jfficial Records .of Sonoma County.
12.2. into ~6.dint Venture; No_3rokers. No provision of this AgreernenY shall be
deen~~d to cor~sti.Ete the Parties as partners, principal and agent, arjoint ventr~rers with
one ~ancther. Each °arty represents and warrants to the other that n~ brokers have
been retained or consulted in connection with this transaction other than as disclosed n
writing to the other party. Each Party shall defend, indemnify, grid bold the c;ther Pai~y
harmless fi-ar;~ any claim, expense, cost, loss or liability ir~~posed by any party claiming a
~lae ar comr~^ission in connection with this Agreement or the acquisition of the Easement
and arising out oi'the indemnifying Party's conduct.,
_ '12.~ I~lo ~l/aiver. No waiver of. acquiescerce in car consent to any breach of
any tear., covenant or condition hereof shall be construed as, or constitute a waiver of,
acquiescence in, or cor7sent to, any other, further or succeeding breach of the same or
any oiler t~,rE71, covenant or condition.
'i 2.4 iriotices. Except as otherwise specified herein, all notices to be sent
pursuant to this Agreement shall be made i~~ writing, and sent to the Parties at their
respective addresses specified below ar to such other address as a f~arty may
designate by written notice delivered to the other parties in accordance with ibis
Section. All such notices shall be sent by:
(i) personal delivery, in whicr, case notice is effective upon delivery;
(ii) certified or registered mail, return receipt requested, in which case
notice sl'Eal! be deemed delivered on receipt if delivery is confirmed by a return
receipt;
Ordir.an~e fJo. 218 i N.C.S• F'age 22
(iii) nationally recognized overnight courier, with c"~arges prepaid or
charged to the sender's account, in which case notice is effective on delivery if
delivery es confirmed by the delivery service;
(iv) facsimile transmission, in which case notice shat! be deemed delivered
upon transmittal, provided that (a) a duplicate copy of thn r
iotice is promptly
delivered by first-class or certified mai! or by ~~,Crnight delivery, or (b} a
transmission report is generated reflecting the acre!rate transmission thereof.
Any notice given by facsimile shall be considered to have been received on the
. next business day if it is received after S:OO p.m. recipie it's time or an a
. ~ nonbusiness day.
Gity: City of Petaluma
11 English Street
Petaluma, CA 94952
Attn:
Telephone: _
Facsimile:
Ree~eF~oA~~: Regency Realty Group, lnc.
1850 Mt. Diablo Blvd., quit(; 22:~=
V'~'alnut Creek, CA 94596
Attn: Torn Engbery
Telephone:
Facsimile:
With copy te: Hanson Bridgett Marcus Vlahos Rudy LLP
80 E. Sir Frances Drake Blvd, Staite 3E
Larkspur, CA 94939
Attn: Mary K. McEachron
'i 2.5 Further Assurances. The Parties agree to execute, acknorviedge and
dhiiver to the Miler such ~;ther documents and ir~strun~ents, and to und~rtt#l(e SuCII Gii1P,r
actions, as either shall reasonably reguest as may be necessary to carry out the ~nteni
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 Uovernin 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 Sever. ability,. 1f any term, provision, covenant or co!-~dition contained in this
O~ din;~nce No. 2 i 8 . N.C.S. Fa~a .23
Agreement is held by a court oi' compete;it jurisdiction to be invalid, void or
unenforceable, the remai?~der of this agreement shall continue in full force and effect
unless the rights and eblinatior±s of the Laartif:s are materially altered or abrdged by
.such irnralidation, voiding or aroenforceabi!ity.
129 Attorneys' Fees. In any action at law or in equity, arbitration or other
...proceeding arising in conr~e=coon `,rtiit? this Agreement, the prevailing party shall recover
:reasonable attorneys' fees sand other costs, including but not limited to court costs and
expert and consultants' fees incurred irE connecti~~n with such action in addition to any
• other relief aE~varded, and such attorneys' fees Gnd costs shall be included in ar~y
judgment in such action..
12.10 Countarts. This Agreersc~nt may be executdd in mL~ltiple counterparts,
each of which shall be an original and al! of which together shall constitute one
agreement.
12.11 timendments. ;his ;aGrePmen, may be modified or amended, in ~,~~hole or
- in part, only by an instrumer!t~ ir; ~~vrifing, executed and aclcnowledgea bythe Parties, and
recorded in the rJfficial Record; of Sonorn? C;cunty.
12.'12 Captions; Entire Aoreernent. The section headings u~:ed in this
Agreement are tor,convenitir~ce only ar~d are not intendEd t~ arfect the it
lteroreiation or
ronstructior~ of the provisions ~
~ereif~ contained. This Agreement, toge~her with the
Option Agreement and the dccurnerifs refcrencr:d therein; contains the ent;r~:
a~gr~ement of th ;Parties v~ith respect to fhc; subject mafiter hereof, anc all o"iL~r
rb~;co<<,~tions, documents and discussions ~,r~ith respect thereto are her~:bv superseded.
Ordinance No. 2181 N.C.S. Page 24
1N WITNESS WHEREOF, the Par#ies have executed this Agreemc.~t as ®{the
date ~~irst ~rti~ritten above.
~9~`Ff C`~r ~E~"~l...iJi~lA
C y:
~~arr,e:
Title:
AP~ROVE[~ ;4~ TC~ FOF2fVl:
~y:
City ~ttarney -
.~~'TES~
By. -
City.Cleric
~Et;.E~i,'~ REAL ~ GRQl.jF', E~@C.,
a Flor3r#a ~or~orati!un
By: _
Thomas K. Erigberg,
Its: SLrzior Vice President
Ordina~~c~ No. 2181 fJ.C.S. na~~
1
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
1 1 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)
6
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 town Option Agreement dated as of , 2004 by and
12 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
1;8 Agreement as though fully set forth herein. The term of the Option commences on the
1•;9 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
2'1 certain events as set forth in the Option Agreement or (ii) , 201 1 (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
1 IN WITNESS WHEREOF, the parties have executed this Memorandum as of the date first
2 written above.
3
4 CITY OF PETALUMA
5
b By:
7
8 Name:
9
10 Title:
11
12 APPROVED AS TO FORM:
13
14 By:
15 City Attorney
16
17 ATTEST:
18
19 By:
20 City Cferk
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
1
2
3 STATE OF CALIFORNIA )
4 ) ss.
5 COUNTY OF SONOMA )
6
7
8 On before me, , personally
9 appeared. , personally known to
10 me (or proved to me that on the basis of satisfactory evidence) to be the person(s)
11 whose name(s) is/are subscribed to the within instrument and acknowledged to me
12 that he/she/they executed the same in his/her/their authorized capacity(ies), and that
13 by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
14 which the person(s) acted, executed the instrument.
15
16 WITNESS my hand and official seal.
17
18
19
20
2i
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
Ordinance No. 2181 N.C.S. Page 28
1
2 Exhibit II
3
4 Payran Fire Station Property
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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29
30
31
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34
35
36
37
38
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40
41
42
43
44
45
46
47
Ordinance No. 2181 N.C.S. Page 29
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April 29, 2004 RRR , ~ ~J~ s,~ `
` Ordinance No. 2181 N.C.S. Page 30