HomeMy WebLinkAboutOrdinance 2124 N.C.S. 12/17/2001,
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LA N 17 200�,
,� Y� ORDINANCE NO. 2124 N.C.S.
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6 Introduced by Seconded by
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9 Councilmember Maguire Councilmember O'Brien
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13 AN ORDINANCE OF THE COUNCIL OF THE CITY OF
14 PETALUMA AUTHORIZING A LEASE OF REAL PROPERTY
15 LOCATED WITHIN THE CITY OF PETALUMA
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18 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS
19 FOLLOWS:
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21 Section 1. Certain real property located in the City of Petaluma, County of Sonoma,
22 State of California which was acquired specifically for recreation purposes, is hereby authorized
23 to be leased under the terms and conditions set forth in the Lease by and between the City of
24 Petaluma and Redwood Empire Sportsplex, LLC, which Lease is attached hereto as Exhibit "A"
25 and incorporated herein by reference, and the City Manager is hereby authorized to sign said
26 Lease, which is for the use of a softball complex.
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28 Section 2. If any section, subsection, sentence, clause or phrase or word of this ordinance
29 is for any reason held to be unconstitutional, unlawful or otherwise invalid by a court of
30 competent jurisdiction, such decision shall not affect the validity of the remaining portions of
31 this ordinance. The City Council of the City of Petaluma hereby declares that it would have
32 passed and adopted this ordinance and each and all provisions thereof irrespective of the fact that
33 any one or more of said provisions be declared unconstitutional, unlawful or otherwise invalid.
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35 Section 3. This ordinance shall become effective thirty (30) days after the date of its
36 adoption by the Petaluma City Council.
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Ord. 2124 NCS Page 1 of 2
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Section 4. The City Clerk be, and she is hereby directed to publish/post of this ordinance
for the period and in the manner as required by the City Charter.
INTRODUCED and ordered posted/published this 19th day of November, 2001.
ADOPTED this 1 7th day of December , 2001 by the following vote:
AYES: O'Brien, Healy, Maguire, Moynihan, Mayor Thompson
NOES: Torliatt, Vice Mayor Cader-Thompson
ABSENT: None
ATTEST:
4D
City Clerk bftdm MP At.
resaord
l 1 i 16/01 (fmk)
Mayor
Or2d. 2124 NCS
LEASE AGREEMENT
4 This Lease Agreement (the "Lease") is entered into this day of
5 , 2002, between THE CITY OF PETALUMA, a political
6 subdivision of the State of California ("Lessor") and REDWOOD EMPIRE
7 SPORTSPLEX, LLC. ("LESSEE").
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9 For and in consideration of the mutual terms, covenants and conditions herein,
10 Lessor and Lessee hereby agree as follows:
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12 1. LEASED PREMISES. Lessor hereby leases to -Lessee, and Lessee hereby
13 leases from Lessor, upon the terms and conditions set forth in this Lease,
14 that certain real property (the "Premises") which is that certain real property
15 located in the City of Petaluma, County of Sonoma, State of California, as
16 shown on the site reap attached as Exhibit "A" hereto (the "Site Map") and
17 more particularly described in Exhibit `B" attached hereto.
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19 2. TERM.
20 (a.) This Lease shall be for a term of twenty-five (25) years with an option
21 held by Lessor to extend the term ten (10) additional years
22 commencing with the last to occur of the following:
23 (i) One hundred twenty-five (125) days after final acceptance of
24 the City's required environmental review and study by the City
25 of Petaluma and approval of any and all necessary land use and
26 other entitlements concerning the construction and operation of
27 the project contemplated.
28 (ii) The date of approval of the plans and specifications for the
29 Improvements, defined in Section 4 below, by the Lessor by
30 and through its City Manager or his designee.
31 (iii) In the event there is a challenge or litigation commenced within
32 one hundred twenty-five (125) days after final action by the
33 Lessor pertaining to environmental and land use review and
34 approvals, the date that said challenge or litigation is
35 concluded.
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37 (b) It is understood and agreed that all required mitigation measures
38 adopted through the environmental review process are incorporated
39 herein and made .a part of this Lease. Lessee Hereby understands and
40 agrees that Lessee, at Lessee's cost, shall comply with any conditions
41 or required mitigation measures set forth and/or adopted per the
42 environmental or land use process, prior to the commencement of the
43 complex operation.
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45 (c) ' Lessee, shall make all required applications and submittals at Lessee's
46 sole cost and shall pursue approvals diligently.
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48 (d) When the Commencement Date of this Lease has become
49 ascertainable, as provided above, Lessor and Lessee shall specify the
50 same in writing, which writing shall be deemed incorporated herein.
51 The term "Lease Year" as used herein shall be a period of twelve (12)
52 successive calendar months, except that if the Lease Term commences
53 on a day other than the first day of a calendar month, then the initial
54 fractional month .together with the succeeding twelve (12) calendar
55 months shall constitute the first Lease Year.
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57 The Lessor-, at its option, by and through the City Council, shall have
58 the right to terminate the Lease if Items (a), (b), (c) and (d) above are
59 not completed within three (3) years from the date of the execution of
60 this Lease; provided,, however, that Lessor, by and through the City
61 Council, shall also have the right to terminate the Lease if Lessee is in
62 default. The time limits in this paragraph shall not be extended for
63 force majeure reasons.
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65 3. RENT. Lessee shall pay Lessor as annual rent ("Rent") for the Premises a
66 percentage of Gross Revenues, as defined below, as follows:
67 During the Period: Percentage of Gross Revenues:
68 First Lease Year through the 2% o or $1,000.00
69 Fifth Lease Year whichever is greater
70 Sixth Lease Year through the 6% or $10,000.00
71 Tenth Lease Year whichever is greater
72 Eleventh Lease Year through the 10% or $20,000.00
73 Twenty-fifth Lease Year whichever is greater
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75 (a) Renegotiation. If during the term of this agreement the financial
76 operation of said sports, complex shall be in jeopardy, both Lessee and
77 Lessormay, but are not obligated to , consider renegotiating rent as
78 paid to Lessor.
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79 (b) Rent Payable. The minimum rent shall be paid in advance on the first
80 day of any calendar quarter without notice, offsets or deduction in
81 lawful money of the United States. Total Rent shall be computed as
82 of the end of each calendar quarter and Lessee shall pay the Rent so
83 computed (minus minimum rent paid) within thirty (30) days after the.
84 end of each respective calendar quarter.
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As used herein, the term "Gross Revenues" means all revenues
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received by Lessee during each calendar year from Lessee's_ operation
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of the Sports Complex, described in .Section 5(a) below (including but
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not limited to income from concessions sales, should Lessee opt to act
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as principal in the sales of concessions or lease or rental income
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should Lessee choose to contract out the sale of concessions;
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subleases and assignments allowable herein); or from any other
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business conducted by Lessee at the Premises, excluding all amounts
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received by Lessee which represent entry fees paid by sport teams
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and/or individuals to enter leagues or tournaments and all federal,
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state or local sales, use, or excise taxes; any non -cash sale that is
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written off as bad debt; customary charges of recognized credit card
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companies for credit card sales; service charges, carrying charges,
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interest charges and penalties for time payment accounts and charge
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accounts; any refunds, credits, or allowances to customers; or any
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income received by entities with whom or which Lessee chooses to
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contract to provide concession. sales service on the Premises. The
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occasional sale of fixtures and equipment by Lessee following their
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substantial use in the conduct of Lessee's business or operations upon
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the Premises shall also be excluded from the term "Gross Revenues."
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With respect to the sale of concessions, Lessee shall not contract with
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any entity or individual which is a principal parent or subsidiary
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company of Lessee or is otherwise affiliated with Lessee with respect
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to the sale of concessions.
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111 Revenues received by concessionaires or sublettees shall be
112 excludable from Gross Revenues only for video game operations,
113 food sales and retail sporting goods sales of sporting equipment.
114 Revenues received by concessionaires and sublettees for other than
115 video game operations, food sales and sporting good sales shall be
116 includable in Gross Revenues. Subrentals and other considerations
117 received by Lessee from any concession or subrental arrangement for
118 video games, food or sporting goods sales by concessionaires or
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119 sublettees, whether based on a percentage of Gross Revenues or
120 otherwise, shall also be includable in Gross Revenues. Landlord shall
121 have the ,right to review and approve all concession, subrental and
122 assignment arrangements as provided in Section 24, below.
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124 At such time as Lessee submits to Lessor the quarterly payment of
125 Rent, such payment shall be accompanied by a cash summary sheet or
126 sheets showing the Gross Revenues by the month and an itemization
127 of the goods and services provided, as well as all deductions or
128 exclusions therefrom. In addition, Lessee shall provide to Lessor an
129 annual statement of Gross Revenues prepared by an independent
130 certified public accountant. Lessee shall maintain accurate books and
131 records with respect to Gross Revenues and, upon ten (10) days' prior
132 written notice, Lessor or Lessor's representative shall have the right, at
133 Lessor's sole cost and expense, to inspect such books and records at
134 reasonable business hours. At any reasonable time within two (2)
135 years after receipt. of Lessee's statements of Gross Revenues, Lessor
136 may, at Lessor's expense, cause an audit to be made of Lessee's books
137 and records for the period covered by such statement. The cost of said
138 audits shall be at Lessee's expense if the audit discovers the
139 underpayment of rent. Misstatement' of gross receipts shall be a
140 default under this Lease.
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142 (c) Continuous Operation Covenant. Lessee shall continuously during
143 the entire term of "this Lease conduct and carry on its business on the
144 Premises and shall keep the Premises open for operation and cause
145 Tenant's business to be conducted therein during usual operational
146 hours or each and every business day as is customary for operation of
147 like character to be customarily open for operation or that may
148 otherwise be required by permit, law, rule or regulation. Lessee shall
149 keep sufficient personnel to care for the normal use and operation of
150 the Premises, and conduct business in accordance with sound business
151 practice. If, during the pendency of this Lease, the City conducts a
152 review of Lessee's operations and determines such operations are not
153 being conducted in a manner customary for similar facilities in
154 neighboring and/or similar cities, and, upon notification of same,
155 should the Lessee disagree with such determination, the matter shall
156 be submitted to arbitration. Such an arbitration will be held before a
157 panel comprised of individuals knowledgeable about, and involved in
158 the operation of similar facilities. If the panel decides Lessee's
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operation of the facilities is substantially outside the norm of that
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found in similar. operations in neighboring communities, the Lessor
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shall have, in addition to any and all remedies herein provided, or
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provided under California law, the right, at its option, to collect not
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only the rent provided for herein, but additional rent in an amount
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equal to Imputed Percentage Rent. "Imputed Percentage Rent: shall
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be determined as follows: First, Lessor shall determine the Gross
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Revenues actually earned by Lessee for the last six (6) month period
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during which Lessee continuously operated the Premises. Second,
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Lessor shall multiply the amount of Gross Revenues for this period by
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applicable percentage set forth in Section 3, above (i.e., 2%, 6% or
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10%, as the case may be) and the product so obtained shall be divided
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by the number 180. Said quotient shall be herein called "Daily
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, Imputed Rent". For purposes of this Lease, Imputed Percentage Rent
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shall be the product obtained by multiplying Daily Imputed Rent by
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the number of days Lessee has failed to operate the Premises in the
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manner required by this Lease. Imputed Percentage Rent, at Lessor's
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election, shall be deemed to be in lieu of any rent that might have
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been earned during such period of the .Lessee's failure to conduct
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Lessee's business as herein provided.
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In addition, Lessee and Lessor shall share equally the costs of
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arbitration provided, however, if the arbitrator determines that Lessee
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has violated the terms of this section, Lessee shall pay all costs of
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arbitration, and shall have a period of forty-five (45) days in which to
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address and remedy any and all aspects of its operation which fall
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outside the community norm. If all applicable remedies are not made
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within the forty -five-day (45) period, Lessor shall, in addition to its
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right to obtain "Inputted Percentage Rent", shall have the option of
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terminating the Lease.
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190 4. IMPROVEMENTS.
191 (a) Improvements. Lessee shall construct the "Improvements," as
192 described on Exhibit "C" (C-1: narrative; C-2: Site Plan; and C-3 :
193 conditions of approval) to this Lease and any improvements required
194 by conditions of approval and CEQA requirements (File No. CUP
195 98035) on the Premises. The contractor selected to construct
196 -improvements; the plans and specifications of the proposed
197 improvements, shall be provided to Lessor for review and approval
198 prior to the commencement of any work on the proposed
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199 improvements. The required approval of any plans or specifications
20.0 shall not be unreasonably withheld by Lessor. Prior to
201 commencement of construction, Lessee shall provide evidence of
202 contractor's liability insurance. Construction shall be completed
203 within eighteen (18) months from the issuance of building permit. No
204 operations shall commence until all public and offsite improvements
205 have been completed and accepted by the Lessor.
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207 (b) Force Majeure. In the event Lessee is prevented from completing all
208 or any part of the Improvements within the time periods provided
209 herein by reason of any causes unforeseeable at the time of the
210 execution of this Lease and which are beyond Lessee's control,
211 including, but not limited to, acts of God, acts of common enemies,
212 fire, flood, earthquake, explosion, freight embargoes, strikes, lockouts,
213 labor troubles, riot, insurrection, unusually severe weather, or delay of
214 a contractor or subcontractor due to such causes, restrictive
21.5 governmental laws or regulations, delays in obtaining required
216 government permits and approvals, or, as a result of any of the above,
217 an inability to acquire labor, materials or supplies, the time periods
218 within which Lessee is to complete said improvements may be
219 extended with the consent of Lessor, which consent shall not be
220 unreasonably withheld, for a time period equal to the period of delay.
221 Lessee shall notify Lessor promptly following. the on -set of any such
222 cause, specifying the reasons in detail and an estimate of delays.
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224 5. SCOPE AND COMMENCEMENT OF OPERATIONS.
225 (a) The Sports Cornplex. Lessee shall have the exclusive right to use the
226 Premises to provide and operate on a non-discriminatory basis for
227 general public use, a softball complex and related facilities including,
228 but not limited to softball fields, soccer fields, volleyball courts,
229 batting cages for practice, food and beverage (including alcoholic
230 beverages) concessions, restrooms, children's' playground, parking
231 facilities, picnic facilities and all support facilities necessary for the
232 operation and maintenance of the above listed facilities, and such
233 other ancillary facilities or services as may be agreed to by Lessor and
234 Lessee. Lessee shall commence operating the Sports Complex on the
235 Premises on a date which is not later than sixty (60) days following
236 completion, of construction of the Improvements (the "Operating
237 Commencement Date").
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(1) Lessor to relinquish control of its current Softball leagues and
not run any softball leagues of its own for the first 10 years of
this Lease unless it becomes apparent that the growth of such
leagues has outgrown the. current available facilities. An
exception to this clause would be that League or activity that
targets a specific group of individuals or neighborhood that
could not be provided at the aforementioned Complex. Lessor
would discuss such activity or League with Complex personnel
before implementing said activity or League.
(ii) Lessor to designate a liaison from the Parks and Recreation
Dept. so that harmony and direction of programs can be carried
on to meet the needs of the community. Said designee shall
have no authority to amend this Lease or to exercise
independently the City's various approval and consent rights in
this Lease.
(Ili) With the exception of the first year of the Lease (as noted in
paragraph 9),. Lessor will maintain, in a usable condition, the
Washington Street access to the facility. Lessee shall maintain,
in a usable condition, parking lots, fields and all other facilities
associated with its complex. -
Lessor's maintenance obligations shall exclude costs caused by
the negligence or misconduct of Lessee or its, agents and
employees. Such costs shall be the obligation of Lessee.
(iv) Petaluma .league fees are to remain competitive with
surrounding City programs. Petaluma leagues are defined as
teams comprised of 70% Petaluma residents. The cities to be
used in the setting of these fees shall be: San Rafael, Santa
Rosa, and Rohnert Park. The formula to be used shall be the
average of the aforementioned cities League fees, providing all
amenities are equal, i.e. balls provided, two umpires, number of
games per season, etc.; plus a maximum of ten (10) percent.
(v) Lessee, while providing leagues for Petaluma residents, will
also provide various open leagues. Leagues for Petaluma
residents shall have priority use over outside leagues.
(vi) Lessor to allow the serving of alcoholic beverages on the
Premises in accordance with all City, State and Federal policies
and regulations.
(vii) Lessee to provide two (2) fields for the free use by Petaluma
Girls Softball Association during their season from 4 pm-7:30
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PM each Monday through Thursday from approximately the
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middle of March to the first of July and other times available
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and negotiated with Complex Management to allow for post-
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season play and/or tournaments.
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(viii) Lessee to provide two (2) soccer fields for free use by the
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Petaluma Youth Soccer League during its season from 4:00 PM
283.
until 7:30 PM each Monday through Thursday from September
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1 through November 30 and other times available and
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negotiated with Complex Management to allow for post -season
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plan and/or tournaments.
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288 6.
CAPITAL COSTS AND IMPROVEMENTS. Lessor shall bear all costs
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and expenses for the construction and maintenance of utility infrastructures
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for potable water for domestic consumption only, recycled water and sewer
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up to the property line of the Premises. Lessor is responsible per item 6 of
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the lease agreement "Capital Costs and Improvements" for extending
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potable water recycled water and sewer services to the project site. At the
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Lessor's sole discretion, the Lessee shall either: (1) install the sewer, water
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and recycled water services up to the property line of the project site at
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Lessee's cost and enter into a reimbursement agreement with the Lessor; or
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(2) the Lessor can go through the design consultant and general engineering
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contractor hiring process. The Engineering Division of the Lessor shall be
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contacted upon approval of the condition use permit application to discuss
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this item. Lessee shall bear all other costs and expenses for the construction
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and maintenance of, and additions, alterations, and repairs to the
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Improvements, including any applicable procurement and hook-up fees and
303.
costs. Lessee shall pay such costs and expenses in a timely manner so as to
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keep Lessee's interest in the Premises free and clear of all liens.
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306 Once recycled water is available for site irrigation purposes, water from the
307 private well shall not be used for irrigation, and the well shall be abandoned
308 at the Lessee's expense per Sonoma County standards. However, prior to
309 any decision to abandon said irrigation well or before recycled water is
310 available for site irrigation, Lessor shall have the right to use the well if it is
311 determined by Lessor that the well needs to be utilized for domestic City
312 water production. The onsite irrigation system shall be designed to meet
313 future wastewater system requirements. The irrigation well shall be
314 designed to the extent feasible to enable potential future use for City
315 domestic water production. Both the design of the irrigation well and the
316 onsite irrigation system shall be subject to review and approval of the Water
317 Resources and Conservation Department of the Lessor.
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319 Pursuant to City of Petaluma Resolution No. 91-16 N.C.S. (Policies for
320 Extension of Water Service for Use Outside of the Corporate Limits of the
321 City of Petaluma; attached hereto as Exhibit "D"), and Policy 3.1 of City of
322 Petaluma Resolution No. 98-251 N.C.S. (City of Petaluma Urban Growth
323 Boundary), Lessor hereby finds that Lessee's -irrigation well, required under
324 the terms of this lease, may have a significant . adverse impact on the
325 production capacity of existing private domestic wells adjoining the
326 Premises, such that water production capacity may drop below that required
327 by County of Sonoma health regulations for single-family dwellings. To
328, mitigate this potential impact, Lessor hereby makes the findings necessary
329 pursuant to Resolution No. 91-16 N.C.S. and Policy 3.1 of Resolution No.
330 98-251 N.C.S. to allow outside City water services to Assessor's Parcel
331 Numbers 136-070-011 and 013 for domestic purposes only provided that a
332 direct relationship between the diminished production capacity of their
333 respective, individual domestic wells and the continuing operation of
334 Lessee's irrigation well, based on the results of the initial or any subsequent
335 annual "well draw down test" pursuant to Condition of Approval #30 of the
336 Conditional Use Permit (attached hereto as Exhibit "C-3"), is clearly
337 established. Lessee shall bear the cost of the "well draw down. test." In the
338 event outside water services are required for said properties, based on the
339 results of the "well draw down test," said services shall be subject to the
340 applicable conditions of Section IV of Resolution No. 91-16 N.C.S. and any
341 other requirements of the City of Petaluma. All applicable costs for the
342 provision of the outside water services shall be equally divided between
343 Lessee and Lessor.
344
345 7. DESIGN AND ENGINEERING STANDARDS AND CONTROLS.
346 (a) General. All designs, plans and specifications for the Improvements
347 shall be developed or approved by a qualified licensed civil engineer
348 and/or architect and shall be subject to review and approval by Lessor
349 prior to commencement of any construction by Lessee on the
350 Premises, which approval shall not be unreasonably withheld. All
351 plans submitted and approved shall meet all applicable code
352 requirements of the State, County, City of Petaluma and other
353 agencies having jurisdiction. The errors and omissions insurance
354 carrier for the civil engineer and/or architect shall be subject to review
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355 and approval by Lessor prior to commencement of any construction
356 on Premises, which approval shall not be unreasonably withheld.
357
358 (b) Plan Approval Process. Prior to the commencement of construction
359 of any Improvements, Lessee shall:
360 (i) Deliver or cause to be delivered to Lessor for Lessor's approval
361 the preliminary construction plans and specifications (the
362 "Preliminary Plans") for the Improvements to be constructed,
363 which Preliminary Plans shall include, but not be limited to,
364 preliminary grading and drainage plans, soil tests, locations of
365 utilities, sewer and service connections,, ingress and egress to
366 and from public thoroughfares, curbs, gutters, parkways, street
367 lighting, outdoor signs, storage areas, and landscaping required
368 in connection with such Improvements, all of which are
3.69 sufficient to enable Lessor to make an informed judgment about
370 the design and quality of the construction.
371 (ii) Within sixty (60) days after approval by Lessor of the
372 Preliminary Plans, deliver or cause to be delivered to Lessor for
373 Lessor's approval - schematic design drawings ("Design
374 Drawings") showing a detailed site plan for the Improvements
375 to be constructed together with typical floor plans, elevations
376 and exterior plans for any buildings or structures to be
377 constructed, which Design Drawings shall substantially
378 conform to. the Preliminary Plans.
379 (iii) Within sixty (60) days after approval by Lessor of the Design
380 Drawings, deliver or cause to be delivered to Lessor for
381 Lessor's approval final working plans and specifications (the
382 "Final Plans") for the Improvements to be constructed which
383 shall substantially conform to the Preliminary Plans and Design
384 Drawings, and which are sufficient to acquire a building permit
385 or other governmental approval allowing commencement of
386 construction of Improvements.
387
388 Any changes made by Lessee to plans and drawings previously
389 approved by Lessor which affect the scope and nature of the
390 operations specified in paragraph 5 herein shall be submitted to
391 Lessor for approval in the same manner as provided herein for
392 approval of Preliminary Plans, . Design Drawings and Final
393 Plans and are subject to City Council approval.
394
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395 8. APPROVALS, PERMITS AND REPORTS. Lessee shall have full
396 responsibility to obtain all necessary approvals, permits and reports and bear
397 all cost associated therewith.
398
399 9. BONDS. Prior to commencement of construction of each portion of the
400 Improvements, as described in Section 4 above, Lessee shall provide a
401 performance bond, labor and materials bonds, payment bonds, maintenance
402 bonds for public improvements constructed by Lessee or other security
403 acceptable to Lessor, by and through the City Manager and the City
404 Attorney, in the amount equal to the estimated cost of such portion of the
405 Improvements to secure completion thereof. Such performance bond or
406 other security shall be released upon completion of the Improvements for
407 which it was provided.. Lessee's surety shall be subject to review and
408 approval by Lessor prior to commencement of construction, which approval
409 shall not be unreasonably withheld.
410,
411 10. LEASEHOLD MORTGAGES.
412 (a) Right of Lessee to Create Leasehold Mortgage. Lessee shall have the
413 right, at any time and from time to time during the term of this Lease,
414 for any purpose, and in an' amount not to exceed the costs of
415 construction of the Improvements and Lessee's leasehold interest
416 hereunder, to make any mortgage or mortgages upon all or any
417 portion of its leasehold interest and all or any appurtenant rights
418 herein, which shall include all deeds of. trust and other devices for
419 creating security interests in leasehold estates (the "Leasehold
420, Mortgage"). Lessee shall have the right to grant a Leasehold
421 Mortgage in favor of, or for the benefit of, any person, entity or
422 institution (the "Leasehold Mortgagee"). In addition, in the event
423 Lessee takes back a mortgage or deed of trust encumbering the
424 leasehold interest hereunder to secure a portion of the purchase price
425 given :to Lessee for an assignment or transfer of all or a portion of
426 Lessee's interest in this Lease, then any such mortgage or deed of trust
427 shall be considered a Leasehold Mortgage as contemplated by this
428 Section 10. Any such assignment shall be subject to the provisions of
429 Paragraph 24.
1,
431 Upon being notified in writing by any Leasehold Mortgagee that
432 Lessee has granted a Leasehold Mortgage and of the Leasehold
433 Mortgagee's name and address, Lessor shall thereafter provide to the
434 Leasehold Mortgagee a copy of any and all notices from time to time
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435 given by Lessor to Lessee, including a notice of default as provided in
436 Section 25(b) below, at such time as Lessor gives such notice to
437 Lessee. Lessee shall notify Lessor of any change in the name and/or
438 address of such Leasehold Mortgagee. From. and after receiving from
439 a Leasehold Mortgagee the notice provided herein, neither Lessor nor
440 Lessee shall cancel; terminate, ,surrender, modify or amend this Lease
441 in any respect without the prior written consent of such Leasehold
442 Mortgagee, except upon default of Lessee as provided herein. No
443 Leasehold Mortgagee shall _become liable under the provisions of this
444 Lease unless and until such time as such Leasehold Mortgagee
445 becomes, and then for only so long as it remains, the owner of the
446 leasehold estate.
447
448 (b) Amendment of :Lease._ If a Leasehold Mortgagee should require, as a
449 condition to the making of a loan secured by a Leasehold Mortgage,
450 any modification of this Lease to protect or preserve the rights of the
451 Leasehold Mortgagee, including modification of the provisions
452 relating to damage to and/or condemnation of the Premises, (provided
453 that any such proposed modifications to the damage and
454 condemnation provisions must be conditional upon using available
455 proceeds .to rebuild the facilities) Lessor may, by and through the City
456 Council, at Lessor's sole option and discretion, agree to execute the
457 appropriate amendments; provided that .Lessor shall first have the
458 opportunity.to discuss and negotiate any proposed modification with
459 such Leasehold Mortgagee, and provided further, that no modification
460 shall change the size of the Premises, the Lease Term, decrease the
461 Rent payable by Lessee, or reduce or eliminate any indemnity or
462 defense rights of Lessor hereunder. With respect to any Leasehold
463 Mortgagee providing financing for the construction of the
464 .Improvements, such request for modifications shall be made, if at all,
465 prior to the Commencement Date. If Lessor refusesto execute any
466 such. amendment requested by such first Leasehold Mortgagee, Lessee
467 may, in Lessee's discretion, terminate this Lease. Thereafter, Lessor
468 shall not unreasonably withhold its consent to any modifications
469 which do not substantially alter the intent of this Lease.
470
471 (c) Estoppel Certificate. At the request of Lessee or any proposed or
472 existing Leasehold Mortgagee, Lessor shall promptly execute and
473 deliver (i) any documents or instruments reasonably requested to
474 evidence, acknowledge and/or perfect the rights of the Leasehold
1. 12
475
Mortgagee as herein provided; and, (ii) an estoppel certificate
476,
certifying the status of this Lease and Lessee's interest herein and such
477
matters as are reasonably requested by Lessee or such Leasehold
478
Mortgagee. Such estoppel certificate shall include, but not be limited
479
to, certification by Lessor that (i) this Lease is unmodified and in full
480
force and effect (or, if modified, state the nature of such modification
481
and certify that this Lease, as so modified; is in full force and effect),
482
(ii) all rents currently due under the Lease have been paid, (ill) there
483
are not, to Lessor's knowledge; any, uncured defaults on the part of
484
Lessee under the Lease or facts, acts or omissions which, with the
485
giving of notice or passing of time, or both, would constitute a default.
486
Any such estoppel certificate may be conclusively relied upon by any
487
Leasehold Mortgagee or assignee of Lessee's interest in this Lease.
488.
All documents needed to perfect rights of the Leasehold Mortgagee
489,
should be prepared and filed at no cost to the Lessor.
490
491
(d) Foreclosure by Leasehold Mortgagee. A foreclosure of a Leasehold
492
Mortgage or of any sale thereunder, whether by judicial proceedings
493
or by virtue of any power contained in a Leasehold Mortgage, or any
494
conveyance of the leasehold estate created hereby from Lessee to the
495
Leasehold Mortgagee through, or in lieu of foreclosure or other
496
appropriate proceedings instituted by a Leasehold Mortgagee, shall
497
not require the prior consent of Lessor nor shall it constitute breach of
498
any provision or a default under this Lease; provided, however, that
499
Lessor shall have the same right to cure any default under a Leasehold
500
Mortgage as Lessee, pursuant to the terms. thereof and shall be entitled
501
to the same notice of default under the terms of the Leasehold
502
Mortgage as Lessee. Notwithstanding the above, any proposed
503
grantee in a foreclosure shall be subject to approval by Lessor if such
504
proposed grantee is not an institutional lender. Upon any such
505
foreclosure, sale or conveyance of'the leasehold estate created hereby
506
and under the terms herein, Lessor shall recognize the Leasehold
507
Mortgagee, or any other foreclosure sale purchaser, as lessee
508
hereunder if defaults are cured. Upon the acquisition by a Leasehold
509
Mortgagee. of Lessee's interest in the Leased Premises as a result of
510
any such foreclosure, sale or conveyance referred to herein, there shall
511
be no restriction on such Leasehold Mortgagee's right to thereafter
512
assign or transfer this Lease. However, no such assignment or
513
transfer by a Leasehold Mortgagee shall be valid unless any such
514
assignee or transferee assumes this Lease, which shall be
13
515 accomplished by such, assignee or, transferee executing a written
516 assumption: agreement in recordable form within ten (10) days after
517 the acquisition of title by such assignee or transferee. In the event a
518 Leasehold Mortgagee takes back a mortgage or. deed of trust
519 encumbering such leasehold interest to secure a portion of the
520 purchase price given to Leasehold Mortgagee for such assignment or
521 transfer, then any such mortgage or deed of trust shall be considered a
522 Leasehold Mortgage as contemplated in this Section 10.
523
524 (e) Leasehold Mortgagee's Rights on Lessee's Default. Under Lease.
525 Upon a default by Lessee of any of the terms, provisions or covenants
526 of this Lease, a Leasehold Mortgagee shall, without prejudice to its
527 rights against Lessee or its sublessees, have the right, but not the
528 obligation, to pay all of the rents due hereunder, to effect any
529 insurance, to pay any taxes and assessments, to make any repairs and
530 improvements, and to do any act or thing required of Lessee
531 hereunder or necessary to cure such default, and in the event that a
532 Leasehold Mortgagee takes any of the above actions, subject to the
533 provisions of subsections (i) and (ii) below, and all monetary
534 obligations of Lessee have been fully performed, then no default by
535 Lessee shall be deemed to have existed and Lessor shall not have the
536 right to terminate this Lease. For the purpose of facilitating a
537 Leasehold Mortgagee's rights, as described herein, in the case of any
538 notice of default given by Lessor to Lessee, the Leasehold Mortgagee
539 shall thereupon have the same concurrent grace periods as are given
540. Lessee for remedying a default or .causing it to be remedied plus, in
541 each case, an additional period of sixty (60) days after the expiration
542 thereof, or after Lessor has served such notice of default upon
543 Leasehold Mortgagee, whichever is later. Provided that all monetary
544 obligations of Lessee under this Lease shall be duly performed, the
545 grace periods granted to a Leasehold Mortgagee herein shall be
546 further, extended as set forth in the respective circumstances below:
547 O In those instances which reasonably require the Leasehold
548 Mortgagee to be in possession of the Premises to cure any
549 default by Lessee, the time therein allowed Leasehold
550 Mortgagee to cure any default by Lessee shall be deemed
551. extended to include the period of time required by said
552 Leasehold Mortgagee to obtain such possession with due
553 diligence not to' exceed six (6) months, whether such possession
554 is acquired through foreclosure proceedings or otherwise; and
14
555
556
557
558
559
560
561
562
563
564
565
566
567
568
569
570
571
572
573
574
575
576
577
578
579
580
581
582
583
584
585
586
587
588
589
590
5.91
592
593
(ii) In those instances in which a Leasehold Mortgagee is
prohibited by any process or injunction issued by any court or
by reason of any action by any court having jurisdiction of any
bankruptcy or insolvency proceeding involving Lessee or its
sublessees from commencing or prosecuting foreclosure or
other appropriate proceedings and the nature thereof, the time
herein allowed Leasehold Mortgagee to prosecute such
foreclosure or other proceedings shall be. extended for the
period of such prohibition, not to exceed six (6) months.
In those instances described in Section 10(e) (1) and (ii) above,
the Leasehold Mortgagee shall, or shall cause Lessee to,
operate 'and maintain the sports complex, and in the event the
Leasehold Mortgagee fails to do so, Lessor shall have the right
to operate and maintain the Sports Complex and in addition to
any remedies provided for herein shall be entitled to all profits.
If the Lessor operates the facility during this time, Lessor shall
have the right to recover from Lessee, in the manner prescribed
by law and subject to such notice and cure rights Lessee may be
entitled under California statutory law or this Lease, any net
shortfall or loss incurred by Lessor in operating the Softball
Complex under this Section 10(e)(ii) in addition to all rent.
(iii) If insurance coverage is terminated during the expanded cure
period, all operations of Lessee must close.
(f) Right of Leasehold Mortgagee to New Lease. In the event of the
termination of this Lease prior to the natural expiration of the Lease
Term due to default of Lessee or operation of law, Lessor shall mail
by registered or certified mail to all Leasehold Mortgagees written
notice of such termination, together with a statement of any and all
sums which would at that time be due under this Lease. then known to
Lessor. 'Such Leasehold Mortgagee having the more senior priority
shall thereupon have the option to obtain a new lease in accordance
with and upon the following terms and conditions:
(i) Upon the written request of the Leasehold Mortgagee within
sixty (60) days after service of the aforementioned notice of
termination, Lessor shall enter into a new lease of the Premises
after this Lease has terminated, with such Leasehold
Mortgagee, or its designee, as provided in Section 10(f) (ii)
below.
15
594
(ii) Such new lease shall be effective as of the date of termination
595
of this Lease and shall be for the remainder of the Lease Term
596
at the rent and additional rent and upon the agreements, terms,
597
covenants and conditions of this existing lease. Upon the
598
execution of such new lease, the lessee named therein shall pay
599
any and all sums which would at the time of the execution
600
thereof be due under this Lease but for the termination as
601
aforesaid, and shall fully otherwise remedy any existing
602
defaults under this Lease capable of being remedied by such
603
lessee, and shall pay all expenses, including but not limited to
604
reasonable attorneys' fees, court costs and disbursements
605
incurred by Lessor in connection with such defaults and
606
termination, the recovery of possession of the Premises and the
607
preparation, execution and delivery of such new lease, except
608
that with respect to any default which cannot be cured by such
609
lessee until it obtains possession, such lessee shall have a
610
reasonable time after it obtains possession to cure such default.
611
612 11. ALTERATIONS. Any alterations or additions to improvements constructed
613 on the Premises shall be subject to the prior written consent of Lessor and
614 written approval of all plans and specifications by Lessor, which shall not be
615 unreasonably withheld. Submission and approval of plans shall be to the
616 City Clerk and made pursuant to Section 7(b) above. All such alterations
617 and improvements shall be at the sole expense of Lessee.
618
619 12. DAYS AND HOURS OF OPERATIONS. Following the Operating
620 Commencement Date, Lessee shall be entitled to make the Premises
621 available to the public for the provision of the goods and services specified
622 in Section 5 above, to conditions set forth in the conditions of approval
623 (Exhibit C-3 attached hereto) throughout the Lease Term.
624
625 13. MAINTENANCE OF FACILITIES. At all times during the Lease Term,
626 Lessee shall have the sole responsibility to protect, operate and maintain the
627 Premises .in a clean, safe, wholesome, and sanitary condition, free of trash,
628 rubbish, garbage or obstructions and in compliance with all applicable
629 federal, state, and local rules and regulations. In addition, Lessee shall have
630 the responsibility for all grounds maintenance on the Premises including
631 trimming, mowing, litter control, lawn fertilization, aeration and irrigation,
632 and all other cultural practices normally required to maintain the Premises in
633 a safe, orderly, neat, clean standard generally ascribed to by comparable
16
634 operations. Lessee shall provide to Lessor, by and through the Director of
635 Parks and Recreation, a "Maintenance and Operational Plan" annually
636 throughout the Lease Term, detailing the time and manner in which grounds
637 maintenance shall be accomplished.
638
639 Lessee, at its cost, 'shall make all improvements required by its liability
640 insurer to maintain insurance coverage.
641
642 14. UTILITIES. Lessee shall have sole responsibility for the installation and
643 maintenance of and payment for all utility services provided to the Premises
644 except as noted under Section 6 above.
645
646 15. TAXES AND ASSESSMENTS.
647 (a) Possessory Interest Tax; Payment of Taxes. By entering into this
648 Lease, a possessory interest subject to property taxes may be created.
649 Lessee or any other party in whom the possessory interest is vested
650 may be subject to the payment of property taxes levied on such
651 possessory interest. In this connection, and without limiting the
652 foregoing, Lessee shall pay, beginning on the Commencement Date
653 and continuing during the Lease Term, all such possessory interest
654 taxes, together with all.personal property taxes, documentary transfer
655 tax, other taxes, general and special assessments and other charges or
656 impositions which may be levied upon or assessed against the
657 Premises or personal property located on the Premises whether
658 belonging to Lessor or Lessee, or to which either of them may become
659 liable (the "Impositions').
660
661 (b) Payment' of Impositions and Furnishing of Receipts. Subject to
662 Lessee's right to pay Impositions in installments as provided herein,
663 all payments to be made by Lessee pursuant to this Section 15 shall be
664 made prior to delinquency. Lessee shall furnish to Lessor, within
665 twenty (20) days after a request by Lessor given after the delinquency
666 date, with official receipts or photocopies thereof, evidencing the
667 Imposition paid. If by any law any such Imposition is payable or may
668 at the option of the taxpayer be paid in installments, Lessee may pay
669 the Imposition together with any accrued interest on the unpaid
670 balance of the Imposition, in installments as they become due.
671
672 (c) Contest: Lessee shall have the right to contest the validity or the
673 amount in part or in full, of any Imposition which it is obligated to
17
674
pay under the provisions of this Lease. All such proceedings shall be
675
begun within the period allowed by law after any contested Imposition
676
is imposed and shall be prosecuted to final adjudication with
677
reasonable dispatch.
678
679
Lessee shall give Lessor, by and through the City Clerk, prompt
680
notice in writing of any such contest at least ten (10) days before any
681
delinquency occurs if Lessee intends to withhold payment of the
682
Imposition pending determination of the contest or at any time if
683
Lessee intends to contest such Imposition subsequent to payment
684
thereof. Lessee may only exercise its right to contest an Imposition
685
hereunder while withholding payment thereof if (i) the subject legal
686
proceedings shall operate to prevent the collection of the Imposition
687
so contested, or the sale of the Premises, or any part thereof, to satisfy
688
the same, or (ii) if Lessee shall, prior to the date such Imposition is
689
due and payable, have given such reasonable security as may be
690
required by Lessor from time to time in order to insure the payment of
691
such Imposition to prevent any sale, foreclosure or forfeiture of the
692
Premises or any part thereof, by reason of such nonpayment. In the
693
event of any 'such contest and the final determination thereof
694
adversely to Lessee, Lessee shall, before any further fine, interest,
695
penalty or cost may be added thereto for nonpayment thereof, pay
696
fully and discharge- the amounts involved in or affected by such
697
contest, together with any penalties, fines, interest, costs and expenses
698
that may have accrued thereon or that may result from any such
699
contest by Lessee and, after such payment and discharge by Lessee,
700
Lessor will promptly return to Lessee such security as Lessor shall
701
have received in'connection with such contest.
702
103
Lessor shall cooperate reasonably in any such contest permitted by
704
this Section l5, and shall execute any documents or pleadings
705
reasonably required for such purpose. Any such proceedings to
706
contest the validity or amount of any Imposition or to recover any
707
Imposition paid by Lessee shall be prosecuted by Lessee at Lessee's
708
sole; cost and expense; and Lessee shall indemnify and save harmless
709
Lessor against any and all loss, cost or expense of any kind, including,
710
but not ignited to, reasonable attorneys' fees and expenses, which may
711
be imposed upon or incurred by Lessor in connection therewith.
712
18
713 16. ACCEPTANCE OF THE PREMISES. Lessee accepts the Premises where
714 is, as is, and by .taking possession acknowledges the Premises. are in good
715 and tenantable condition for the purposes intended and does not hold Lessor
716 responsible for any repairs or improvements.'
717
718 17. PERSONNEL.
719 (a) Names and Addresses. Lessee shall keep Lessor, by and through the
720 City Clerk, City Manager and City Attorney, informed in writing of
721 the names, mailing addresses., and phone numbers of its general
722 partners and the complex manager of the Premises.
723
724 (b) Complex Manager. An experienced general full-time manager for the
725 sports complex shall be employed at all times by Lessee.
726
727 The manager shall be of ,good character with no felony convictions
72`8 and shall be authorized and available to confer with Lessor, by and
729 through the Director of Parks and. Recreation, at all reasonable times.
730
731 (c) Other Employ. At all times after, the Operating Commencement
732 Date,. Lessee shall provide. sufficient staff with the skills and
733 experience necessary to reasonably provide for the services
734 envisioned and the safety, good conduct and good order of its
735 customers. Lessee shall comply with. the provisions of Section 28(k)
736 below with respect to the hiring of employees.
737
738 All employees of Lessee shall be of good moral character and shall
739 present a pleasant appearance and pleasing-, manner to the public.
740
741 18. FEES .AND CHARGES; OPERATION STANDARDS. Lessee shall
742 operate the services, facilities and league/tournament play at the Premises in
743 a competent and professional manner equal to or exceeding the standard
744 generally ascribedto by comparable operations. The standards ascribed to
745 shall be subject to the review and reasonable approval of Lessor, by and
746 through the Director of Parks and Recreation.
747
748 Should Lessor, based on its reasonably applied independent judgment, find
749 operational standards have fallen below the standard acceptable level
750 mandated by applicable state and local laws and codes, and grounds keeping
751 standards as established by the Amateur Softball Association (Exhibit E),
752 and Maintenance and Operational Plan referred to in paragraph 13 and
19
753 amended thereto, Lessm shall notify Lessee in writing of the specific subject
754 areas requiring correction citing the law(s), code(s) or standard(s) which
755 describe the standard(s) the Lessee must meet.
756
757 Lessee shall then have a period not exceeding thirty (30) days in which to
758 effect the needed corrections. Should Lessee fail to complete the corrections
759 or fail to show that said corrections have begun and are being diligently
760 pursued, then Lessor, by and through the Director of Parks and Recreation,
761 shall, at Lessor's sole option, have the right to grant an extension of time,
762 enter the Premises and effect the necessary corrections or notify Lessee that
763 a default exists under Section 25 of this Lease.
764
765 Should Lessor enter the Premises and effect any corrections subject to the
766 above conditions, Lessee agrees to promptly reimburse Lessor the cost
767 thereof, plus administrative fee of 15% plus 10% interest per annum if not
768 paid within thirty (30) days.
770 All fees and charges. for goods and services provided by Lessee at the
771 Premises shall be reasonable and shall be prominently posted. In addition,
772 Lessee shall provide to Lessor a schedule of fees and charges for all goods
773 and services purveyed at the Premises at least two (2) weeks in advance of
774 any initial implementation or proposed change.
775
776 19. SIGNS AND PROMOTIONS. Lessee shall be entitled to erect such signs
777 and notices as are reasonable for Lessee's operation at the Premises,
778 provided that all such signs shall be subject to the review and reasonable
779 approval by Lessor, by and through the Site Plan and Architectural Review
780 Committee of the Lessor or if necessary the City Council, be subject to
781 applicable state and local regulations, be in conformance with general
782 standards of the City of Petaluma as to size and general compatibility.
783
784 Lessee shall promote the public use of the facility at all times in accordance
785 with accepted community standards of good taste.
786
787 20. INSURANCE. Lessee shall, at Lessee's cost and expense, obtain a
788 comprehensive liability policy or policies from a carrier with a Best's rating
789 of A/XIII or better with a combined single limit in an amount not less than
790 ten million dollars with a deductible of no more than $10,000. Such
791 insurance shall be an occurrence -type insurance policy and shall include
792 bodily injury, personal injury, property damage, liquor liability, products,
20
793 blanket contractual and owned and non -owned automobile coverage. Lessee
794 shall at all times during the Lease Term, at Lessee's expense, cause said
795 insurance to be kept in full force and effect. Said policy or policies shall
796 name Lessor, its elected officials, its officers, and employees (individually
797 and collectively) as additional insureds and shall insure against any and all
798 claims or demands of any and all persons for damage and injuries, including
799 death sustained by any person or persons occurring from any negligence or
Soo the fault or omission of Lessee, its officers, agents, and employees, or
801 resulting from their non-compliance with any law, ordinance, order, or.
802 regulation respecting the condition, use, occupation or safety of the Premises
803 or any part thereof, or resulting from Lessee's or . Lessee's agents' or
804 employees' failure to. do anything required by this Lease or resulting from or
805 arising out of the Lessee's ownership, maintenance and operation of the
806 Premises.
807
808 Such coverage for additional named -insureds shall apply as primary
809 insurance and any other insurance maintained by Lessor, its elected officials,
810 its officers, agents and employees shall be excess only and not contributory,
811 with insurance provided under said policy.
812
813 Thirty (30) days prior to Operating Commencement Date, Lessor shall
814 provide Lessor with and file with Lessor's Clerk of the City of Petaluma a
815 certificate of insurance of all such policies hereinabove required to be
816 maintained, issued, by the insurer or its authorized agent on forms approved
8 117 by Lessor which shall provide evidence of the insurance coverage required
818 herein, including contractual liability coverage for the obligation created in
819 Section 21 except for uninsurable liabilities. Such certificate shall state the
820 provisions of the policies whereby no material change or reduction in
821 coverage or cancellation of said policies shall be effective unless at least
822 thirty (30) days written notice in advance of the date thereof shall be given
823 to Lessor.
824
825 Lessee shall maintain in full force and effect a policy of worker's
826 compensation insurance covering all of its employees employed at the
827 Premises as defined above. Evidence of such insurance also shall be filed
828 with Lessor thirty (30) days prior to Operating Commencement Date.
829
830 Lessee shall take out and maintain during the Lease Term an all risk multi-
831 peril property insurance coverage on all improvements constructed upon the
832 Premises by Lessee in an amount equal to one hundred percent (100%) of
21
2
833 the guaranteed full replacement cost thereof and insuring the interests of
834 Lessor and Lessee as their interests shall appear. The policy shall contain a
835 special endorsement that, subject to the rights of any Leasehold Mortgagees
836 and to the provisions of Section 22 below, such proceeds shall be disbursed
837 and used to repair or rebuild any such improvements so damaged or
838 destroyed. The rights of the Leasehold Mortgagee to property insurance
839 proceeds is limited to the escrowing of proceeds with a trustee to be used as
840. a source of payment for reconstruction of the facility. Said proceeds shall
841 not be used to pay off loans.
843 Insurance requirements as specified herein, shall be subject to periodic
844 review by both Lessee and Lessor, by and through the Lessor's Risk
845 Manager, at no more than five-year intervals, and shall be adjusted at those
846 times to meet generally accepted protection levels for the type of goods and
847 services purveyed. Lessor, by and through its Risk Manager, has the right
848 and may further negotiate the terms of this Section 20 if and when
849 necessary.
850
851 21. HOLD HARMLESS-. Lessee agrees to defend, indemnify, waive claims
852. against, and hold Lessor, its elected officials, its officers and agents,
853 harmless from any and all claims, suits, actions, judgments and all costs,
854 damages, counsel fees or expenses, including cost of investigation, about the
855 Premises arising out of. (1) the performance or. non-performance of the
856 terms, conditions, and covenants herein; (2) litigation arising out of or
857 challenging the City's approval of the project; (3) tax payer. lawsuits
858 regarding the project (4) labor disputes involving those entitled with whom
859 Lessee contracts to provide services; (5) the negligence or willful
860 misconduct of Lessee or Lessee's agents, employees and independent
861 contractors; and (6) any other occurrences or activities conducted during the
862 life of the Lease on the Premises save and except for the sole negligence or
863 willful misconduct of Lessor. Lessee's obligation to indemnify is not
864 conditioned upon advance payment by the City. Lessee waives all claims
865 against Lessor for damage to property or injury to or death of any person in,
866 upon or about the Premises.
867
868 22. DAMAGE OR DESTRUCTION. In the event . of destruction, loss, or
869 damage by fire or other casualty of any improvements, fixtures, or other
870 property caused by an event on the Premises during the Lease Term, Lessee
871 shall repair or replace same.
872
22
872 Lessor, by and through its Director of Parks and Recreation, shall have the
873 sole option to waive this requirement to repair or replace.
874
875 In the event any improvements, fixtures or other property are destroyed, lost
876 or damaged to such an extent so as to prevent or substantially impair the use
877 of the Premises by Lessee and such destruction, loss or damage is caused by
878 a casualty not required to be insured hereunder, then Lessee shall have, in
879 Lessee's sole discretion, the option to terminate this Lease upon thirty (30)
880 days written notice to Lessor unless loss is a result of Lessee's gross
881 negligence or willful misconduct or of its officers, employees, or agents. In
882 the event of termination when insurance proceeds are insufficient, such
883 proceeds as are available shall be first used to clear the site then divided
884. between Lessor and Lessee, with Lessee receiving a proportionate amount of
885 the proceeds in the ratio which the unexpired portion of the Lease Term
886 bears, to the total Lease Term, and Lessor shall receive the balance of such
887 insurance proceeds. Lessee hereby waives California Civil Code Sections
888 1941 and 1942.
889
890 23. CONDEMNATION.
891 (a) Total Condemnation. In the event of the taking or condemnation by
892 any competent authority for any public or quasi -public use of the
893 whole or materially all of the Premises at any time during the Lease
894 Term, the rights of Lessor, Lessee and any Leasehold Mortgagees to
895 share in the net proceeds of any award upon such taking shall be
896 divided as follows:
897 (i) That portion of the award(s) attributable to (i) the fair market
898 value of Lessor's interest in the Premises and this Lease
899 (without reduction for the market value of Lessee's leasehold,
900 which interest Lessee hereby unconditionally assigns to
901 Lessor), (ii) Lessor's reversionary interest in the improvements
902 to the Premises made by Lessee; and (iii) the present value to
903 improvements, if any, made to the Premises by Lessor, shall be
904 allocated and paid to Lessor;
905 (ii.) That portion of the award attributable to (1) the cost of all
906 improvements made to or constructed on the Premises by
907 Lessee, amortized over the balance of the Lease Term
908 (calculated without regard to option terms); (ii) any severance
909 damages, which shall be used by Lessee for the sole purpose of
910 repairing and restoring the improvements, to the extent
911 necessary the portions of the Premises which are not taken or
23
912 condemned; (iii) any goodwill or going -concern value or any
913 award for lost profits or damages because of detriment to
914 Lessee's business; (iv) the value, if any, of Lessee's unmovable
915 or unsalvageable trade fixtures and personal property; and (v)
916 any moving expenses, shall be allocated and paid to Lessee; and
917 (Ili) Any award remaining after (i) and (ii), shall be paid to Lessor.
O:
919
In the event that the value of the respective interests of Lessor and
920
Lessee shall be determined by the court or jury in determining the
921
compensation to be paid by the condemning authority, the value so
922
determined shall be conclusive upon Lessor and Lessee. In the event
923
that such values have not been determined, then such values shall be
924
as reasonably determined by Lessor and Lessee subject to the
925
provisions of this Section 23(a). In the event of a taking or
926
condemnation of the whole or materially all of the Premises, then this
927
Lease shall terminate upon vesting of title in the condemning
928
authority or the taking of possession of the Premises by the
929
condemning authority, whichever first occurs.
930
931
(b) Partial Taking. In the event of a partial taking or condemnation, i.e., a
932
taking or condemnation of less than the whole or materially all of the
933
Premises, this Lease shall terminate only if the partial taking or
934
condemnation preempts Lessee from conducting its business as to the
935
portion so taken or condemned, and as to the remainder Lessee may
936
elect (i) to terminate this Lease only if and only if the partial taking or
937
condemnation preempts Lessee from conducting its business on the
938
remaining portion of the Premises or (ii) to continue this Lease as to
939
the remaining portion of the Premises. If Lessee cannot reasonably
940
conduct its business on the remaining portion of the Premises, Lessee
941
shall notify Lessor in writing of Lessee's election to either terminate
942
or continue the Lease not later than ninety (90) days following the
943
vesting of title in or the taking of possession by the condemning
944
authority. The division of proceeds of an award for a partial taking as
945
described herein shall be paid in accordance with, and determined by
946
the terms set forth in Section 23(a) above, provided that the amount
947
payable to Lessee .pursuant to Section 23(a)(1) and (ii) above shall be
948
prorated based upon the portion of the Premises taken. With respect
949
to any -award of severance or "cost to cure" damages, said award shall
950
be allocated to Lessee only to the extent needed to reimburse Lessee
9.51
for costs of alteration or construction to repair the remaining portion
24
952
of the Premises, and the remainder of any such award shall be paid to
953
Lessor.
954
955
(c)
Temporary Condemnation. In the event, that the whole or any part of
956
the Premises or of Lessee's interest under this Lease shall be taken or
957
condemned by any competent authority for its or their temporary use
958
or occupancy, this Lease shall not be terminated by reason thereof,
959
and, except to the extent prevented by the terms of the order of the
960
condemning authority, Lessee shall perform and observe all of the
961
other terms, covenants, conditions and obligations of this Lease to be
962
performed and observed by Lessee. Lessee shall be entitled to receive
963
the entire amount of the award made for such taking, .whether paid by
964
way of damages, rent, or otherwise unless such period of temporary
965
use or occupancy shall extend to or beyond the expiration of the term
966
of this Lease (determined without regard to any option to extend the
967
term hereof), in which case such award shall be apportioned between
968
Lessor and Lessee as of the date of expiration of Lease term, and
969
Lessee shall receive the entire portion of the award that is attributable
970
to any physical damage to any improvements constructed by Lessee
971
on the Premises 'and for replacement or restoration thereof. Lessee
972
shall utilize any severance or "cost to' cure" damages to repair the
973
Premises. Notwithstanding the foregoing, Lessor shall be entitled to
974
any award for improvements that Lessor may construct on the
975
Premises.
976
977
(d)
Rights of Leasehold Mortgagee. A Leasehold Mortgagee, as defined
978
in Section 10 above, shall have the right, at its own expense but
979
subject to theprovisions of Section 23(a), to participate, at its cost and
980
expense, in any proceedings involving a total or partial taking of the
981
Premises. Leasehold Mortgagees shall have the right to receive
982
proceeds (other than severance damages or cost to cure damages)
983
otherwise payable to Lessee pursuant to Sections 23(a) and 23(b)
984
above to be paid first towards the satisfaction of any outstanding
985
obligations secured by a leasehold mortgage on Lessee's leasehold
986
interest except to the extent needed to repair or restore the Premises in
987
accordance with the provisions of this Section 23.
988
989
(e)
Relocation Expenses. In the event of a fully negotiated buy-out or
990
purchase of Lessee's interest hereunder and in the Premises by Lessor,
991
Lessee waives any right to an award of relocation expenses. This
25
992 waiver shall not apply to any condemnation proceeding, or in any
993 other situation wherein the sale of Lessee's interest hereunder is not
994 completely voluntary.
995
996 (f) Waiver. Each party hereby waives the provisions of California Code
997 of Civil Procedure Section 1265.130 allowing either party to petition
998 the Superior Court to terminate this Lease in the event of a partial
999 taking of the Premises.
1000
10o1 24. ASSIGNMENT AND SUBLETTING. Except as provided in this Section
1002 24, Lessee is prohibited from entering into - any assignment, sublease,
1003 license, concession or other transfer or conveyance of this Lease or any right
1004 to use or occupy the Premises. Notwithstanding the foregoing, Lessee may
1005, enter into short-term (5 year or less) subleases and concession arrangements
1006 and assign or sublet the Lease as part of a Bona Fide Offer defined and
1007, subject to the right of first refusal set forth in Section 27, below, but only if
1008 Lessee first..obtains with the prior written consent of Lessor, by and through
1009 the City Council,. which consent shall not be unreasonably withheld. Lessor
1010 has the right to consider credit worthiness (including net worth) and/or
1011 business experience of the proposed assignee in making its decision of
1012 whether to consent. Any such assignment without the consent of Lessor
1013 shall be voidable at Lessor's option. It is understood however, that Lessor
1014 shall have first right of refusal regarding any assignment, sublease or other
101.5 means of conveying interest in this Lease, including outright sale of any
1016 improvements constructed on the Premises.
1017
1018 Lessor shall exercise said right by executing and delivering to the Lessee an
1019 offer concerning any such conveyance and containing the same terms and
1020 condition`s as are present in the proposed sublease or assignment of the
1021 Lessee's ,leasehold interest, or the proposed sale of the physical
1022 improvements made by the Lessee to the Premises.
1023
1024 The foregoing notwithstanding, Lessee shall be entitled to assign, sublease
1025 or otherwise convey an interest in this Lease to- any entity: (a) in which
1026 Lessee (or the 'majority shareholder of Lessee) is the controlling partner; (b)
1027 which is controlled by Lessee (or the majority shareholder of Lessee); (c) in
1028 which Lessee (or the majority shareholder of Lessee) has a controlling
1029 beneficial or legal interest; (d) or any entity controlled by Lessee (or the
1030 majority shareholder of Lessee) and/or any of the foregoing entities.
1031 Notwithstanding the above, multiple sales of ownership interests shall
26
1.032
constitute an assignment if within a 12-month period a controlling interest
1033
has, on aggregate., been transferred.
1034
1035
For purposes of this Lease, the rental by Lessee of all or a portion of the
-1036
Premises for a period of days for a tournament shall not be considered a
1037
sublease.
1038
1039
No assignment shall release the original Lessee of its responsibilities under
1040
the Lease. The consent of one assignment should not be a consent to any
1041
further assignment. The assignee or sublettee must assume the Lease for the
1042
benefit of the Lessor. The sale of the majority of the stock of any corporate
1043
tenant or interests in any partnership tenant shall constitute an assignment of
1044
the Lease.
1045
1046
Lessor's attorney's fee incurred in any assignment or subletting transaction
1047
shall be paid by the Lessee: Any profit received on an assignment or
1048
subletting shall be shared equally between the Lessor and Lessee.
1049
1050 25.
DEFAULT AND REMEDIES.
1051
(a) Events of Default. Each of the following events shall constitute a
1052
default by Lessee and a breach of this Lease:
1053
(i) Filing of a petition, voluntarily or involuntarily for adjudication
1054
of Lessee as a bankrupt;
1055
(ii) The imaking by Lessee of any general assignment for the benefit
1056
of creditors;
1057
(iii) The occurrence of any act by Lessee which operates to deprive
1058
Lessee permanently of the ability to perform Lessee's duties
1059
under this Lease;
1060
(iv) Failure to operate and maintain the services, facilities and
1061
league/tournament play at the Premises in a competent and
1062
professional manner equal to or exceeding the standard
1063
generally ascribed to by comparable operations and as set forth
1064
in paragraphs 13 and 18 herein.
1065
(v) The abandonment and discontinuance of operations at the
1066
Premises by Lessee;
1067
(vi) The failure by Lessee to perform, keep, and observe any or all
1068
of the terms, covenants, and conditions of this Lease on the part
1069
of Lessee to be performed; and
1070
(vii) Assignment or sublease of Lessee's rights under this Lease, or
1071
part thereof, in violation of Section 24 of this Lease.
27
1072 (viii) Default by Lessee of any Leasehold Mortages as set forth in
1.073 paragraph 10 of Lease.
1074
1075 (b) Lessor's Notice of Default. As a precondition to pursuing any remedy
1076 for a default by Lessee, Lessor, by and through the City Clerk, shall,
1077 before pursuing any remedy, give notice of default to Lessee, to all
1078 sublessees and to all Leasehold Mortgagees if Lessee has provided
1079 Lessor with proper addresses. Each notice of default shall specify in
1080 detail the alleged event of default.
1081
1082
(c) Right to Cure. If the alleged default .by Lessee is a non-payment of
1083
rent, taxes, or other sums or -a failure to effect assurances to be
1084
provided by Lessee as required by this Lease, Lessee shall have ten
1085
(10) days after written notice is given by Lessor to cure such default.
1086
With respect to a default of any non -monetary obligation by Lessee,
1087
Lessee shall have thirty (30) days after notice is given by Lessor to
1088
cure such default; provided, however, that in the event such a default
1089
cannot be cured within a thirty (30) day period, Lessee shall not be
1090
considered in default of this Lease ;if Lessee has, within said thirty
1091
(30) days diligently commenced to cure the default and thereafter
1092
prosecutes said cure to completion.
1093
1094
(d) Lessor's Remedy. If any default by Lessee shall continue uncured
1095
beyond the period described in Section 25(c), above, Lessor, at its
1096
option, may either: (i) terminate the Lease by written notice to Lessee
1097
and sue to recover from Lessee all monetary damages provided in
1098
California Civil Code Section, 1951:2, or any successor statutes of
1099
similar import; including without limitation the worth at the time of
1100
award of the amount by which unpaid rent for the balance of the terms
of the Lease after the time of award exceeds the amount of such rental
1101
loss that Lessee proves could be reasonably avoided; or (ii) continue
1102
1103
the Lease in effect and enforce all of Lessor's rights and remedies
1104
under the Lease ,including the right to recover rent as it becomes due
1105
hereunder. (Lessee acknowledges that Lessor has the remedy
1106
described in California Civil Code Section 1951.4 (i.e., Lessor may
Lease in effect after Lessee's breach and abandonment and
1107
1108
continue
recover rent as it becomes due, if Lessee has right to sublet or assign,
1109
subject to reasonable limitations).
1110
WN.
1110 (e) Lessor's Default. In the event of a default by Lessor under paragraph
1111 6 of this Lease., Lessee shall have no rights against Lessor therefor
1112 unless (i) 'Lessee has given written notice to Lessor specifying the
1113 default and (ii) Lessor has failed for a period of one hundred twenty
1114 (120) days to cure the default, if it is curable, or to institute and
1115 diligently pursue corrective or ameliorative acts for noncurable
1116 defaults. Lessee, upon notice to Lessor and the lapse of the aforesaid
1117 cure period, shall have all rights and remedies provided by law or
1118 equity. In addition, Lessee may cure the default of Lessor, and offset
1119 the cost of such cure against the Rent due hereunder, or if Lessee has
1120 been actually or constructively evicted from Premises, terminate this
1121 Lease and reserve Lessee's rights to seek from Lessor, in appropriate
1122 proceedings, all damages incurred by Lessee as a result of default by
1123 Lessor; provided, however, any judgment may be satisfied only out of
1124 Lessor's interest in the Premises, and provided further that Lessee's
1125 right to terminate this Lease shall be subject to consent by Leasehold
1126 Mortgagees and Leasehold Mortgagees shall have the right to cure
1127 any such default by Lessor.
1128
1129 26. OWNERSHIP OF IMPROVEMENTS.
1130 (a) During Lease Term. All improvements constructed on the Premises
1131 by Lessee as permitted or required by this Lease shall be owned by
1132 Lessee until expiration of the Lease Term or sooner termination of the
1133 Lease. Lessee shall not, however, commit waste on the Premises or,
1134 without Lessor's prior written consent, remove or destroy any
1135 building, structures or other improvements or make any modifications
1136 thereto, except as permitted by this Lease. Lessee shall comply with
1137 any ordinance, statute or other laws now or hereafter enacted with
1138 respect to the Premises and shall refrain from allowing any public or
1139 private nuisance.
1140
1141 Lessee agrees to indemnify, defend, and hold harmless Lessor, from
1142 any claims, suits, actions, judgment and all costs, damages, counsel
1143 fees or expenses including cost of investigation pertaining to
1144 hazardous substances on Premises during Lease Term.
1145
1146 (b) Upon Lease Expiration. All buildings, structures and other
1147 improvements on the Premises at the expiration of the Lease Term or
1148 sooner termination of the Lease shall become Lessor's property free
29
1149 and .clear of all claims by Lessee or any third person and shall be in
1150 good condition, normal wear and tear excluded.
1151
1152 27. RIGHT OF FIRST REFUSAL. Lessee hereby grants Lessor and to its
1153 designees, assignees and nominees, the right of first refusal to purchase the
1154 Lessee's interest in the Premises and this Lease if, at any time during the
1155 term of this Lease Lessee receives a Bona Fide.Offer (as defined in Section
1156 27(c) below) for the acquisition by assignment or sublease of the Lessee's
1157 interest in the Premises and this Lease that Lessee desires to accept. In such
1158 event, Lessee shall provide Lessor with a copy of such Bona Fide Offer and
1159 shall offer to sell the Lessee's interest in the Premises and this Lease to
1160 Lessor at the price established by the Bona. Fide Offer (net of commission
1161 and reduced by any profit which is the right, of the City under paragraph 24)
1162 and otherwise upon the same terms and conditions as set forth in such Bona
1163 Fide Offer.
1164
1165
(a) Lessor shall have ,forty-five (45) days from the date Lessor receives
1166
the information required under Section 27(c) below to accept the
1167
offer, and if it accepts the offer, shall enter into a purchase and sale
1168
agreement with Lessee upon the terms and conditions set forth in the
1169
Bona Fide Offer (as herein modified) or upon such other terms as
1170
agreed to by Lessor and Lessee.
1171
1172
(b) If Lessor does not accept the offer to purchase the Lessee's interest in
1173
the Premises and this Lease upon the same terms and conditions set
1174
forth in the Bona Fide Offer within forty-five (45) days after receipt of
1175
such offer, then Lessee may sell and transfer its interest in the
1176
Premises to the named purchaser in such Bona Fide Offer at the price
1177
and upon the terms and conditions specified therein. Failure of Lessor
1178
to respond to Lessee within such forty-five (45) day period shall be
1179
deemed a rejection of the offer by, -Lessor. If Lessor does not accept
1180
the offer and Lessee fails to consummate the sale of its interest in the
1181
Premises and the Lease to the named purchaser in such Bona Fide
1182
Offer at the price, within the time and under this Section 27 shall
1183
remain valid and effective. If such transaction is consummated at the
1184
price and on the terms and conditions set forth in the Bona Fide Offer,
1185
this Section 27 shall bind the purchaser in the same manner as the
1186
named Lessee hereof.
1187
IM
1.187
(c) An offer is a Bona Fide Offer for the purposes of this Section 27 if (a)
1188
it is made by a creditworthy party with significant and substantial
1189
experience in the uses and purposes described in Section 5 or similar
1190
uses and purposes of this Lease and (b) complies with the following
1191
minimum requirements, and does not contain additional provisions
1192
contrary to these requirements: .
1193
(i) Such offer is in writing to purchase the Lessee's entire interest
1194
in the Premises and this Lease, and, if it were to be accepted
1.195
unconditionally by the Lessee, would constitute a legal, valid
1196
and binding obligation of the purchaser;
1197
(ii) It is an offer by an unrelated third party principal, identified in
1198
the offer, and not an agent acting on behalf of an undisclosed
1199
principal; and
1200
(iii) Such offer is accompanied by a certified or cashier's check in a
1201
minimum amount of the lesser of (i) ten percent (10%) of the
1202
proposed purchase price, or (ii) $20,000, in either case to be
1203
deposited into escrow within a reasonable time after acceptance
1204
of the offer.
1205
1206
(d) Any sale, transfer, assignment, sublease or other transfer of the
1207
Lessee's interest in the Premises and this Lease on terms that do not
1208
constitute a Bona Fide Offer is absolutely prohibited. Lessee agrees
1209
that in all brokerage agreements, listing agreements, finders fee
1210
arrangements and other similar arrangements, whether on an exclusive
1211
or other basis, shall provide an exclusion for Lessor and its nominees,
1212
assignees and designees. The terms of this Section 27(d) does not
1213
apply to subleases of five (5) years or less (including option terms) or
1214
to concession arrangements Lessee may enter into while operating
1215
personally the uses and operations described in paragraph 5 on the
1216
Premises; provided, however, that said subleases and concessions
1217
shall be subject to all other terms of this Lease.
1218
1219
1220 28. SUBORDINATION.
1221 Lessor shall execute a Subordination Agreement in the form attached hereto
1222 as Exhibit F. It is understood and agreed that the obligation of the Lessor to
1223 execute such agreement is subject to the provisions of the Subordination
1224 Agreement (Exhibit F), and no such obligation shall arise unless all the
1225 terms of such agreement are met including but not limited to all conditions
1226 precedent to the Lessor's obligation to execute such agreement. 'In addition
31
1227 to, and cumulative to, the remedies available in this Lease and the
1228 Subordination Agreement attached, hereto as Exhibit F, it is expressly
1229 understood and agreed that the Lessor retains its right to recover monetary
1230 damages under Civil Code Section 1951.2 and that if a default by Lessee
1231 under the construction loan results in a foreclosure sale to the Construction
1232 Lender of Lessor's property, such lost equity shall be recoverable from
1233 Lessee under Civil Code Section 1951.2(a)(4) as well as any other
1234 provisions of law.
1235
1236 29. GENERAL PROVISIONS.
1237 (a) Waiver. No waiver by either party at any time of any of the terms,
1238 conditions, or covenants of this Lease shall be deemed as a waiver at
1239 any time thereafter of the same or of any other term, condition, or
1240 covenant herein contained, nor of the strict and prompt performance
1241 thereof. No delay, failure, or omission of Lessor to re-enter the
1242 Premises or to exercise any right, power, or privilege or option arising
1243 from any default nor any subsequent acceptance of rent then or
1244 thereafter accrued shall impair any such right, power, privilege or
1245 option or be construed as a waiver of such default or a relinquishment.
1246 Acceptance of partial rent by Lessor does not waive Lessor's right to
1247 full rent.
1249
(b)
Successors in Interest. Each and all of the covenants, conditions and
1250
restrictions in this Lease shall inure to the benefit of and shall be
1251
binding upon the successors in interest of Lessor, and the authorized
1252
encumbrancers, assignees, transferees, subtenants, licensees, and other
1253
successors in :interest of Lessee subject to paragraph 24 concerning
1254
assignment and subletting.
1255
1256
(c)
Integration. ti'on. This Lease contains the entire agreement of the parties
1257
hereto with respect to the matters set forth herein, and no other
125.8
agreement, arrangement or contract, oral or written, has been made by
1259
any party hereto or any employee, officer, agent or affiliate of any
1260
party hereto, which is not contained herein.
1261
1262
(d)
Severability. If any term, provision, condition or covenant of this
1263
Lease is held- to be unenforceable or invalid by a court of competent
1264
jurisdiction; then the remaining terms, conditions and provisions of
1265
this Lease shall not be effected thereby and shall remain in full force
1266
and effect.
1267
32
1267
(e)
Relations of the Parties. It is hereby expressly agreed and understood
1268
that in the performance of the terms herein provided, Lessee and
1269
Lessee's employees shall be deemed to be independent of Lessor and
1270
not agents or employees of Lessor and Lessor shall not be liable to
t271
Lessee or any persons, whether employees of Lessee or otherwise, for
1272
any death, injuries, or damage arising out of Lessee's performance of
1273'
this Lease. Further, it is ' agreed and understood that this agreement
1274
and Lease does not, nor is it intended to, create a partnership or joint
1275
venture between and among Lessor and Lessee.
1276
1277
(f)
Construction. The language set forth in this Lease shall in all cases be
1278
simply construed in accordance to its fair meaning and not strictly
1279
construed for or against either party. In this context, the neuter gender
1280
includes the feminine and masculine and the singular number includes
1281
the plural, as the context so dictates, and the word "person" shall
1282
include individuals and all legal entities including, without limitations,
1283
corporations, partnerships, and other associations.
1284
1285
(g)
Captions. The captions set forth within sections and subsections of
1286
this Lease are for convenience and reference only, and the words
1287
contained therein shall in no way be held to explain, modify, amplify
1288
or aid in the interpretation, construction or meaning of the provisions
1289
of this Lease.
1290
1291
(h)
Further Assurances. Each of the parties hereto agree to do any further
1292
acts, or execute any further documents, which may be reasonably
1293
necessary or required in order to carry out the purposes of this Lease;
1294
and in this connection, the parties hereto agree that, within a
1295
reasonable time after execution of this Lease, that they each shall
1296
execute a memorandum of this Lease to be recorded at the time the
1297
Lease commences. Upon termination of Lease, Lessee shall deliver a
1298
quitclaim deed of the Premises to the City. If Lessee fails to deliver
1299
said quitclaim deed, Lessee and its shareholders, partners, and officers
1300
shall be liable for per diem liquidated damages in the amount of
1301
minimum rent for the then year. Said memorandum of this Lease is to
1302
be recorded in the County Recorder's Office of the County of Sonoma.
1303
1304
(i)
Modification. This Lease shall not be subject to modification except
1305
in writing executed by both parties hereto.
1306
33
1307
(j) Notices. Any notice or other writing required by this Lease to be
1308
delivered to any party hereto may be delivered personally to a party or
1309
may be delivered by mailing such notice or writing to the persons at
1310
the addresses listed below:
1311
To Lessee: Managing Partner
1312
Redwood Empire Sportsplex, LLC
1313
124 Glacier Court
1314
Petaluma, California 94954
1315
1316
To Lessor: Petaluma City Manager
1317
Post Office Box 61
1318
Petaluma, California 94953
,1319
1320
In addition, Lessor shall deliver all notices hereunder to all Leasehold
1321
Mortgagees of whom Lessor has received notice pursuant to Section
1322
10(a) at the address set forth in said notice. Any notice given pursuant
1323
to this Section 290) shall be deemed served when delivered by
1324
personal service, or as of seventy-two (72) hours after the deposit
1325
thereof in the United States mail, registered or certified, return receipt
1326
requested. Each party shall have the right, from time to time, to
1327
designate a different address by notice to the City Clerk, City
1328
Manager, and City Attorney given in conformity with this Section
1329
290).
1330
1331
(k) Nondiscrimination. Lessee and Lessee's employees shall not
1332
discriminate because of race, sex, age (except for reasons of health
1333
and safety), religion, color, marital status, ancestry or national origin
1334
against any person by _refusing to furnish such person any
1335
accommodation, facility, service, or privilege offered to or, enjoyed by
1336
the general public, nor shall Lessee or Lessee's employees publicize
1337
the accommodations, facilities, services or privileges in any manner
1338
that would directly or. inferentially reflect upon or question. the
1339
acceptability of the patronage of any person because of race, age
1340
(except .for reasons of health and safety), sex, religion, color, marital
1341
status, 'ancestry, or national origin.
1342
1343
In the performance of this Lease, Lessee will not discriminate against
1344
any employee or applicant for employment because- of race, age
34
1345
(except for reasons of health and safety), sex, religion, color, marital
1346
status, ancestry, or national origin.
1.347
1348
(1)
Multiple Counterparts. In the event that this Lease shall be executed
1349
in multiple counterparts, then each such counterpart shall be deemed a
1350
signed original.
1351
1352
(m)
Exhibits. The Exhibits described in this Lease are attached hereto and
1353
incorporated herein by reference. In the event of an inconsistency
1354
between the. terms and provisions of this Lease and any matters set
1355
forth in the- Exhibits, the terms and provisions of this Lease shall
1356
control.
1357
1358
(n)
Covenant of Quiet Enjoyment. Lessor covenants and agrees with
1359
Lessee that upon Lessee paying the rent due under this Lease and
1360
performing its covenants and conditions hereunder, Lessee shall at all
1361
times during the Lease Term peaceably and quietly have, hold and
1362
enjoy the Premises and all appurtenances without hindrance or
1363
interruption by Lessor or Lessor's agents, or by any other person or
1364
persons lawfully claiming by, through or under Lessor.
1365
1366
(o)
Recording. Within a reasonable time after execution of this Lease, the
1367
parties shall each execute a memorandum of the Lease in a form
1368
acceptable to Lessor's City Attorney, to be recorded in the County
1369
Recorder's Office of the County of Sonoma at the time the lease term
1370
commences.
1371
1372
30.
All indemnities and covenants which contemplate performances after Lease
1373
termination shall survive the termination of the Lease.
1374
1375
31.
This agreement constitutes the entire agreement between the parties except
1376
for the I.mprovement.Agreement required by the conditions of approval.
1377
///
1378
///
1379
1380
1381
1382
///
1383
1384
35
1385 IN WITNESS WHEREOF, the parties hereto have executed this document the day,
1386 month and year first above written.
1387
1388
LESSOR
LESSEE
1389
1390
CITY OF PETALUMA
REDWOOD EMPIRE
1391
SPORTSPLEX, LLC
1392
1393
1394
BY
1395
City Manager
Name and Title
1396
1397
ATTEST:
1398
Address
1399
1400
1401
City Clerk
City State Zip
1402
1403
APPROVED AS TO FORM:
1404
Taxpayer I.D. Number
1405
1406
1407
City Attorney
Petaluma Business Tax Receipt Number
1408
1409
APPROVED:
1410
1411
1412
1413
Department Director
1414
1415
APPROVED:
1416
1417
1418
1419
Finance Director
1420
1421
APPROVED:
1422
1423
1 424
12.19.doc
1425
Risk Manager
12/19/01 (fmk)
36
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THIS EXHIBIT IS FOR GRAPHIC
PURPOSES ONLY, ANY ERRORS'.
OR OMISSIONS ON THIS EXHIBIT
SHALL NOT AFFECT THE DEED'
DESCRIPMON.
0 1000 2000.
I
SCALE IN FEET
1 A = 1000 Ff.'
OAM-'.MARO11/,•iaW - - THOMAS, R
UN�DIRECTION.
DISTANCE
L1
S 1'6'36,.1'-6
,E
292-06'
60'08'1'7-
:E'
611.99'
tL25
S 38'17'23'E
500.00'
L5
L6'
S,.63.46'08"
S76'22'31
S 35'27'24"
E'
E
W
582.05'
259 26'
255.29'
L7
L8
S •35'2770'
N 09'33 00
,W
W
-� 500.00
339.44
L9
N" 54'33 00
W
33.14
Lt 0
L1i.
S 80'27'00 -
N 35'25'34'
W
E
339.44
406.65'
L12
S 35'20'55"
W
340.00
EXHIBIT
GOLF COURSE PARCEL SOUTF
BALLFiELD PARCEL SOUTH
oymm
CITY OF PETALUMA
0A s - 1994-0042533 1 A-P' Nd 136-07D-27 t
pf� ma By
BRLJ:E & RACE
CONSULTING CIVIL ENGINEER 5
Un 9CTLM ILVM Pa bI.699,. fJ4f1A l01A CA rA62 7 IVS-ar-
EXHIBIT 6(. B 11
LEGAL DESCRIPTION
OF
LEASED PREMISES
Ia: rC _I T-i OF PETHLL11i; WD, 4414' Fi_tiD
` EXHIBIT C
8AL-L'FTE'LD PARCEL - SOUTH
P.LL T:-iAT RfLnl PROPERTY SITUATED. IN THE COUNTY OF. SON'OMA, STr"iTE OF
CALIFORNIP., BEING R PORTIQN OF -THE LENDS OF GLEN A. CP.AA-MZR, AS
DESCRIBED BY 'TRAT bEED F,ECORDED IN BOOI{ 2485, AT PAGE 285,
OFFICIAL RECORDS OF SONOMA COUNTY,. DESCRIBED AS FOLLOWS
BEGINNING ON THE NORTHWESTERLY L:NE OF SAID LANDS OF CRAMER, FROM
WHICH THE NORTHERLY .CORNER COMMON TO 'CRAME�R PARCEL "B-1" .AND
CRAMER PARCEL "B"' AS SHOWN ON THAT RECORD OF SURVEY FILED IN BOOK
37-7 AT PAGES 21 & . 22,. `S'ONOMP, COUNTY RECORDS BEARS
SOUTli 3S020.'55" WIST 822..15 FEET, THENCE LEAVING SAID
NORTHWESTERLY :LINE; SOU°T°H 16°36' 16' EAST 292.06 FEET; THENCE
SOUTH 60"08'17" EAST. 611.99 FEET,; THENCE SOUTH 38°17123" EAST
500.00 FEET THENCE SOUTI� 63°46'08" EA5T 582,05 FEET THENCE
SOUTH 76°22131" EAST 269.26 FEET TO THE SOUTHEASTERLY LINE OF
SP_ID LANDS 'OF CRPMER; THENCE, ALONG SAID SOUTHEASTERLY LINE;
NORTH 35025'34" EAST 406.6.5 FEET -TO THEMOST EASTERLY CORNER OF
SAID' LP.NDS; THENCE; ALONG THE NORTHEASTERLY LINE OF SAID LANDS,
NORTH 54033100" WEST 21:44.32 FEET TO THE ?MOST NORTHERLY CORNER
OF SAID LANDS., PLL,S.O BEING.,THE SOUTHEASTERLY LINE. OF WASHI'NGTON
STREET; THENCE., ALONG 7SA.ID SOUTHEASTERLY LINE;
SOUTH 35'20'55"WEST 340.00 r_ET TO THE POINT OF BEGINNING.
CONTAINING 24.88 ACRES ?MORE OR LESS.
PRE PT
APN: l 6-0`JO-019 DATE: 1-10-96
J0`B:: 19 6 7 e
.EXHIBIT "C"
IMPROVEMENTS
C- l : NARRATIVE
C-2: SITE PLAN
C-3: CONDITIONS OF APPROVAL
EXHIBIT"C-1111
NARRATIVE
TID
This project is a sports complex consisting of six lighted. softball fields for day and night
games, 4 sand volleyball courts, , 3 soccer fields (one full size and two smaller fields),
batting cages, a tot lot and concession stands, portable bleachers, lighted scoreboards,
picnic area, parking facilities, and. a two-story, 8,000 sq. ft. clubhouse.. The clubhouse
will include a full service restaurant, bar and banquet facility, pro shop, and video game
room. (Attachment 4, Project Description and Alcohol. Policy) The project requires a
conditional use permit and design review approval.
The project originally was to be included with the. review and approval of the Rooster
Run (formerly -known as 'Cottonwood) Golf Course and was to be located west- of East
Washington Street. The sportsplex site has since been relocated to -the east side of East
f P
Washington Street. The land' is owned by the City oetaluma but the sports facility will
be privately constructed, maintained, and operated under lease to the City.
The sportsplex will be open year round with the majority of use during the spring;
summer, and fall seasons. The facility will be open seven days a week from 5:00 a.m.. to
11:00 PM The softball fields will accommodate'both adult and youth league games. The
site will have one point of access from East Washington. A total of 294 parking spaces
will be provided for the complex.. The banquet room and full service restaurant will have
seating capacity for approximately 197 people. The facility will employ 30-40 people in
a variety of jobs, with one-third ariticipated to be full time positions.
The sportsplex will be developed ,on City lands, via a lease of property. This project is a
partnership with the City of Petaluma. The City will generate income over the years of
the project and the applicant will run all adult softball :leagues in the City, under
conditions specified by.the City. Additionally, the project will provide playing fields for
the Petaluma Youth Soccer Association and the Petaluma Girls Softball Program, thus
helping the City by alleviating demand on existing playing fields.
SETTINP
The.25.5-acre site is currently vacant, relatively flats and covered with grasses. The site
is zoned A -Agriculture and has.,a General Plan land use designation of Urban Separator.
The site is adjacent to the City limit line and is adjacent to the Rooster Run Golf Course
and Sonoma.County rural. lands: To the south and adjacent to, the golf course is the
Petaluma Municipal Airport. Previous environmental studies prepared for the site did not
find any significant wetland, plant or animal habitat, or cultural resources.
EXHIBIT "C-2"
SITE" PLAN
W
r
S ITE PLAN
Redwood EMplre Sportsplex
WADI\'-
2550 KN5HI145TON PLTALUMA, CA
Fi.-RTI, 1lFZOIler__
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Redwood Empire :S�portsplex
j 253014A IHI I IIUN t tI-AJ_UMA, GA
QI I aA�t'
124 Gl./+GIEP. C-CL!R7' e%F14 A.13G -,OIC t73I Meh!tae[u-W wee 3, J R..eeranrn
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I
EXHIBIT
CONDITIONS OF APPROVAL
(THESE ARE DRAFT CONDITIONS OF -APPROVAL.
THE FINAL CONDITIONS OF APPROVAL WILL BE
EXHIBIT "C-3"' WHEN THE APPROVAL OF THE
CONDITIONS BECOMES FINAL)
These Conditions=of Approval are DRAFT
and subject to change, pendingthe Planning Corrimissioi:ls`approval of the Conditional Use Permit.
1
2
3
CONDITIONS'OF APPROVAL
4
5
(Note:
New text is in italics and removedtext is struck over.)
6
7
From the Plann'in2 Department
8
9
1.
Approval of a Conditional Use Permit is granted to allow construction of a sports
10
complex which includes six lighted softball fields;, for day, and night games, 4 sand
11
volleyball courts, 3 soccer fields (one full size and two smaller fields), a batting cage
12
facility, a tot lot and concession stands; bleachers, lighted scoreboards, picnic area,
13
parking facilities, and a two-story,. 8,000 sq. ft. clubhouse. The clubhouse will include a
14
full service restaurant, bar and banquet facility, pro shop, and video game room. The
15
operation of the uses shall be in substantially compliance to those stated in the
16
Applicant's ProjectStatement. revised February 13, 2001. Any significant change in the.
1.7
operation of the uses shall be subject to a Conditional Use Permit modification.
18
19
2.
All. mitigation measures adopted in conjunction with the Mitigated Negative Declaration
20
for the Redwood Empire Sportsplex project are herein incorporated by reference' as
21
conditions of proj ect approval.
22 .
23
3.
Plans submitted for building permit shall include a'plan sheet,which shall contain all
24
conditions of approval/mitigation measures' for review by the Planning Division.
25
26
4.
27 .
28
29
4.
The sportsplex shall operate between the hours of 8 a.m. to 11 p.m. daily. Any
30
modification of these hours shall be subject to the approval of the Director of Parks
31
and Recreation.. Special events. shall be allowed per the requirements of the City
32
Zoning Permit process:
33
34
5.
Pfior to 'issuance of a building ;permit, the illumination study and photometric report shall
35
be revised to meet the City of Petaluma Zoning Ordinance Performance Standard Section
36
22-304.2. This perfonnance standard requires that indirect glare shall not exceed that
37
value. which is produced by an illumination of the reflecting surface not to exceed, .3-foot
38
candles (maximum) and .l-foot candle (average). Indirect glare is defined for the
39
purpose of this ordinance asillumination visible at the lot line of the establishment
40
caused by, diffuse reflection, from a surface such as a wall or roof of a`structure.
41
42
6.
All construction activities shall comply with the Uniform Building Code regulations for
43
seismic safety (i.e., reinforcing perimeter and/or load bearing walls, bracing parapets,
44
etc.).
45
46
7.
All, construction and operation activities shall comply with applicable Performance
47
Standards in the Petaluma Zoning Ordinance and Municipal Code.
Page
These "Conditions of,Approvahare.DRAFT
and subject to change, pending the.Plann'ing Commission's=approval of the Conditional Use Permit.,
1
2 8. All construction equipment"'po_.wered by,.internal combustion equipment shall be properly
3
muffled and maintained 'to minimize noise. Equipment shall be turned off when not in
4
use.
5
6
9.
Construction maintenance; storage; and staging areas for construction equipment shall
7'
avoid proximity to residential areas to the maximum extent practicable. Stationary
8
construction equipment, ;such as compressors, mixers, etc., shall be placed_ away from
9
residential areas and/or provided with acoustical shielding. Quiet construction equipment
10
shall be used when possible.
11
12
10.
The. applicant shall designate a Project Manager with authority to implement the
13
mitigation measures who will be responsible for responding to any complaints from. the
14
neighborhood, prior to issuance of a building/grading permit. The Project Manager shall
15
determine the cause..of noise complaints (e.g. starting too, early, faulty muffler, etc.) and
16
shall take prompt action to correct the problem.
17
18
11.
Architectural detail, lighting plans, landscaping plans, specifications on parking lot layout
19
and detailed site plans shall be " subject to review and approval by the Site Plan and
20
Architectural Review,Cornmittee prior to issuance of building permits.
21
22
12.
The applicant shall be responsible for the payment. of the City's Traffic Mitigation Fees.
23
Traffic Mitigation Fees shall be, calculated at the time of issuance'of a building permit
24
and shall be due and payable before final inspection or issuance of a Certificate of
25
Occupancy.
26
27
13.
During non -working:, hours, "open trenches ,and construction hazards within the public
28
right-of-way shall be provided with signage, flashers; and barricades approved by the
29
Public Works Department to warn oncoming motorists,, bicyclists, and pedestrians of
30
potential safety hazards.
31
32
14.
All road surfaces shall be restored to pre -project conditions after completion of any
33
project -related utility installation activities. All trench pavement restoration within
34
existing asphalt streets shall receive a slurry seal.
35
36
15.
The project slall'be subject to the payment of established City Special Development Fees
37
as applicable.
38
39
16.
Prior to the issuance of a Certificate of Occupancy, the applicant shall provide and
40
maintain current 'emergency contact information on file at the Police Department.
41
42
17.
For all construction activities, potential to uncover unknown archaeological resources
43
exist. Shcold;any artifacts, cultural remains, or potential resources be encountered during
44
construction activities, work in the area of the find shall cease and the construction
45
contractor shall notify the Community Development Director. Archaeological features
46
include artifacts of stone, shell, bone,. or other natural materials. Association with
47
artifacts includes hearths, house floors, and dumps. Historic artifacts potentially include
Page 2
Tlzese. Conditions ofApprovalare DRAFT
and subject^to change, pendinglhe.Planning Commission`'s approval.of the Conditional Use Permit.
1 all by-products' of Human wand, use, greater than 5.0' :years of age. Human burials, if'
2 encountered, 'require the notification of the County Coroner -`in addition to the monitoring
3 - archaeologist. The City shall consult with qualified cultural resource specialist to
4 evaluate the find. If the suspected remains are determined to be -potentially significant,
5 all work m' .the vicinity, shall be halted until mitigation; measures are incorporated into the
6 design,, or the removal of the resource has been accomplished in accordance with
7 recommendations by the` archaeologist. The :applicant, shall comply with all mitigation
s recommendations of the archaeologist prior to commencing work in the vicinity of the
9 archaeological find.' The applicant shall be responsible for all costs associated. with
10 consulting a cultural resource specialist andwith implementation of mitigation measures.
11
12 18. The applicant shall be required.to obtain all:required permits from responsible agencies
13
and provide proof.of compliance to the City prior 'to issuance of grading or building
14
permits or approval of improverrient plans'.
15
16
19.
The applicant shall,hotify ,all, employees, contractors, ;and agents. involved in the project
17
implementation of'the mitigation measures and conditions applicable to the project and
18
shall ensure complance"with such measures and conditions. Applicant shall notify all
19
assigns and transfers' of the same.
20
21
20.
Mitigation measures required during construction shall be listed as conditions on the
22
building or grading permits and signed by the contractor responsible for construction.
23
24
21.
Within -five days of an approval of the Conditional Use Permit, the applicant shall submit
25
a check in the amount of $35:00 payable to the Sonoma County, Clerk for the Notice of
26
Determination filing fee.
27
28
22.
The applicants/developers shall, defend, indemnify and hold harmless the City of any of
29
its boards, commissions, agents, officers and employees from any claim, action or
30
proceeding against the City, its boards, commissions, agents, officers or employees .to
31
attack, set aside, void or annul the approval of the project when such claim or action is
32'
brought within the time period provided for in applicable State and/or local statutes. The
33
City -shall promptly .notify the applicants/ developers of any such claim,, action or
34.
proceeding. The City shall coordinate in the defense. Nothing contained in this condition.
35
shall prohibit the City from participating in a defense of any .claim, action, or proceeding
36
if the Citybears its own attorney's fees and costs; and the City defends the action in good
37
'faith.
38
39
22a
Prior to issuance of a building report, the operator of the facility will be -'required to meet
40
all of the requirements of the City of Petaluma's Landscape Water Efficiency Standards.
41
42
22b
The operator of the facility will be required to irrigate the fields at night when demand for
43
water-isslow.
44
Page 3
1
2
3
4
5
6
'7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28.
29
30
31
32
33
These Conditions ofApproval,are,,DRAFT
and subject to chang4 pending, the Planning Commiss on's'approval of the Conditional Use Permit.
From the Bicycle Advisory Committee:
23. In accordance with the Bicycle Plan and the Petaluma Municipal Code, the applicant
shall provide the following bicycle/pedestrian facilities shown in the table below.
BICYCLE/PEDESTRIAN FACILITY
NIENI1VIUM,,NUMBER REQUIRED BY
BIKE'PLAN
Covered Bicycle Park.mg Spaces
67
Interior Bicycle Parking Spaces
8
Clothes'Lockers
10
Showers
2
Picnic.Benches
19-adjacentto the club house and the
concession stands
Drinking Fountains
6 (one at each field)
24. The, applicant shall install a Class H bike lane as part of the East Washington Street
frontage improvements, per. City of Petaluma standards.
25. The development shallhave on=site facilities 'for food storage, preparation and eating
.accessible to all employees.
26. The developer shall provide appropriate curb cuts throughout the development to provide
for bicycle access.
27. Under no circumstances should any pesticide/herbicide be applied in areas used by
pedestriansibicyclists anywhere in this proj eIct or the surrounding area without appropriate
signage.
28. This project shall utilize Best Management Practices regarding pesticide/herbicide use and
fully commit to Iritegrated Pest Management techniques for the protection of bicyclists and
pedestrians.
29. The owndi/lessee shall provide a simple one -page document to the 'City naming a
designated "transportation coordinator" and. describing specific incentives for employees
and customers to walk/bicycle to the facility thereby encouraging alternatives to driving
cars to this facility. Examples `include lending bicycles for short errands, monetary or other
rewards 'for not driving, etc. The City prior to issuance of the Certificate of Occupancy
shall-rece ve this documentation.
Page 4
These Conditions,of Approval are.DRAFT
and subject to changej p0h g. the Planning,,Commission's approval of the Conditional Use Permit.
1 From the Engineering Division:
2
3 Utilities and Surface Water Management:
4
5 30. The Water Resources and Conservation Department is requiring a privately constructed;
6
owned and operated on -site well for: project irrigation purposes until reclaimed waste
7
water is available. A well draw down test per -Sonoma. County standards shall. be
8
performed to determine impacts on adjacent wells. The applicant is responsible 'for'
9
mitigating, all impacts to affected properties per the attached mitigation and monitoring
10
plan.
11
12
31:
The City of Petaluma is responsible per item 6 of the lease agreement "Capital Costs and
13
Improvements" for extending potable water recycled water and sewer services to the
14
project site. The applicant can either 1) install the sewer; water and recycled water
15
services to the project site at his cost and enter into a reimbursement agreement or 2) the
16
City can go through_ the design consultant 'and general engineering contractor hiring
17
process. The Engineering Division shall be contacted upon approval of the conditional
18
use permit application to discuss this item.
19
_
20
s water- fr-em the
21
site. Onee r4elaimed w.astewat�ar-
_
-22
23
24
32.
Once recycled water is available for site irrigation purposes, water from the private well
25
shall not be used for irrigation and the well shall' be abandoned at the applicants
26
expense per, 'Sonoma County standards. The ortsite irrigation system should be
27
designed to ,meet future wastewater system requirements and shall ,be subject to review
28
and approval of the Water Resources and Conservation. Department.
29
30
33.
A private storm drain easement shall be obtained for'portions of the proposed storm drain
31
system located on the parcel to the north, adjacent to East Washington Street (APN:.136-
32
070-021). The easement shall be submitted to the Engineering Division for review and
33
approval prior to building permit issuance and improvement plan approval.
34
35
34.
The project shall comply with all federal, state . and local storm -water quality
36
requirements'. A notice of"intent (NOI), storm water pollution prevention plan (SWPPP)
37
and an interim erosion and sediment control plan shall be submitted to the Engineering
38
Division for review and approval. Implementation of industry standard post construction
39
best rnanageinent practices (BMP's) are.�fg"ate-YequYed per the City of
40
Petaluma Community Development Department.
41
42
35.
All onsite utilities shall be privately owned and maintained.
43
44
36.
The .storm drain system shall be reviewed and approved by the Sonoma County Water
45
Agency and the Engineering Division prior to building permit and improvement plan
46
approval.
47
Page 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
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
These Conditions of Approval,are-DRAFT
and subject to change, pending, the.Planneng Commission's approval of the Conditional Use Permit.
37. An encroachment permit is required 'for the portion. of' proposed storm drain system
located within the public right of way.
Frontage Improvements:
Frontage improvements along the project parcel frontage shall be required. Improvements
shall consist of but not be limited to, half street reconstruction, roadside drainage
improvements, bike lane, separated'pedestrian access, landscaping/irrigation, streetlights,
East Washington Street re-channelization/striping, etc.
91M
39. Re-channelization of East Washington Street within and outside of the limits of the
project frontage'is.required. Improvements shall consist of but not be limited to, left turn
lane in and left turn acceleration out taper, right turn out acceleration taper and right turn
in deceleration lane, 12-foot through travel lane(s), transition lanes and a 6-foot wide bike
lane. All striping/channelization shall be subject to the approval of the City of.Petaluma.
It is recommended that the applicant's engineer contact the Engineering Division prior to
preparation of any formal striping/channelization plans to discuss horizontal alignment.
40. The project shall comply with all requirements from the City of Petaluma Engineering
Department "Traffic Impact Analysis Cottonwood/Ball Park/RESA dated March, 1992.
41. Project striping/alignrneni shall be consistent with the, existing "Science of the Souls"
project located across E., Washington in the County of Sonoma.
Miscellaneous:
42. The applicant shall submit off -`site improvement plans- for all off -site construction. work
as a separate plan set to 'the Engineering Division for review and approval. All
improvements shall be installed, and accepted by the City prior to issuance of a certificate
of occupancy. An improvement agreement, performance and payment bonds as well as
general. liability and worker's compensation insurance certificates are required prior to
commencement of construction.
43. All existing overheadutilities located' within the project parcel frontage shall be placed
underground.
44. A Geotechil cal Investigation Report for the project shall be submitted to the Engineering
Division.
45. The minimum asphalt thickness for an arterial street is six inches.
46. The applicant shall address on -site water and sewer services at the building permit
application stage.
Page 6
These Conditions.ofApproval are_DRAFT
and suhject to change, petzdinghe Planning Commission's^approval of the Conditional Use Permit.
1
47.
The applicant shall submit an erosion and sediment control plan for all on -site and off-
2
site work.
3
4
4.8.
A separate water meter for domestic and irrigation services is required.
5
6
49.
The fire service water line shall be capable of delivering a continuous fire flow as
7
required 'by the Fire Marshal's office. Provide fire. flow calculations to the Engineering
8
Division.
9
10
50.
Any existing wells .not, retained and/or subsurface sanitary wastewater disposal systems
11
shall be removed and/or abandoned per County of Sonoma Department of Permit and
12
Resource Management standards.
13 .
14
From the Fire Marshal'S Office:
15
16
17
51.
The building(s) shall be protected by an automatic fire sprinkler system as required by the
18
Uniform Fire Code and. shall be provided with central station alarm monitoring, which
19
will notify the Fire Department in the event of water flow. In addition, a local alarm shall.
20
be provided on the exterior and interior of the building.
21
22
52.
Contractors shall. submit to the Fire Marshal's office evidence that the required fire flow
23
of gpms is available at the proposed structure.
24
25
53.
Any building constructed in excess of 150 ft. from a public way, where an approved 20-
26
ft. driveway cannot be provided, shall be protected with a fire sprinkler system in
27
accordance with NFPA-13.
28
29
54.
Any building, where the furthest portion of an exterior wall is constructed in excess of
30
150 ft. from a public way, shall be provided with an unobstructed, 20 ft. wide, all
31
weather, access road having a vertical clearance of 13 ft. 6 inches.
32
33
55.
Required access roads that dead-end shall terminate in an approved emergency vehicle
34
turn around.
35
36
56.
The minimum.fire flow for this project is 2500 gpm .at 20 pounds per sq.. in. Proof that
37
required fire flow is available shall be supplied to the Fire Marshal prior to construction.
38
39
57.
The applicant shall install fire hydrants every 300 linear feet. No structure or fire
40
department sprinkler connection shall be in excess of 150 ft. from a fire hydrant.
41
42
58.
Approved emergency exiting is required from all public assembly areas in accordance
43
with the Uniform Building Code and State Fire -Marshal Regulations.
44
45
59.
The clubhouse shall meet all fire, life, and panic safety requirements in accordance with
46
State and local codes and ordinances.
47
Page 7
These Conditions of Approval are,DRAFT
and subject to'change, pending the Planning Commission's approval of the Conditional Use Permit.
1 From the Police Department:
2
3 60. The complex shall have private security during large tournaments/events.
5 . sApc-Planning Commission\ReportsTESA 2530 E. Washingdon REVISED CON OF APPRV DULY 24..DOC
Page
EXHIBIT "D
CITY OF PETALUMA RESOLUTION NO. '91-16 N. C. S .
Re/ sofuliOh No.:94._16F., XGS,
of tile City of (Izili;forpica
A RESOLUTION 'ESTABLISHING 01.0.3ACIES FOR EXTENSION
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OF WATER SERVfCE 'FOR USE OUTSIDEOF THE CORPORATE
LIMITS OF THE CITY OF PETALUMA AND REPEALING
RESOLUTION NO. 89-.67 N.C.S.
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WHEREAS, the City of.P6taluma is willing,, under certain
circumstances, toprovidewater service to lands currently.
outside of the corporate limits of the City'but within its
Ppberc of.Influence. In addition, other limited service may
be provided a : t the discretion of the city Council where
contaminati,on'or ekhaustion of groundwater supplies
immediately threaten' , s: health and 'welfare in areas outside of
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th6-City's Sphera of Influenci.
ImRwo by offering such Dpportunffies it remains the
� ..City's Poli,J::y0: j) oppose urb-an-de vplopm-eint in
unirfcorpoidt7ed areas,, 2)/ limit premu,riatre ization and-�.
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devielopmei�i of ag�j,` �11tuiia:l lands3) Off\er.water. service as
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a me . ans of .'meeting -.;immediate human tealt,h/,*needs,.rather ;than
provi4inq-a convenience for future parc'e,lizationof,
outside of the' corporate limits and
Aeve Ippment, rp
areas ,have been identified as, urban service
areas on the cityl,s'adopted Spheri of; Inf luience, wherein the
pr ovii-ion,of water,servic.6 for lesp than urban densities is
currently provided or will likely b6pr6vided, which are not
planned as potential annexation areas.
THXAktdRl BE IT, RESOLVED TkAT:
Applications for,outs.ide water service shall be
.considered and may beapprovedonly
y when the following
circumstances exist:
A. FOR AREAS WITHIN THE ADOPTED S P,HH,kt OF INFLUENCE
1. The water is to be,used.: a) for
dwellings in existence on December
5, 1983 (the date 'of , adoption of the
N
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It,-% No ...... NJ: S�
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first comprehensive water policy b)
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for one principal dwelling and up to
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one accessory "granny".units approvod
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for construction on parcels created
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prior to December 5, 1983 (the date of
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adoption of the first comprehensive
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water policy) or c') for lots created
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for residential development which meets
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all City Development renew standards
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and do not exceed: a density of .one (1)
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dwelling unit per two.(Z) acres or d)
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for -non-residential. uses only upon the.
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approval of the City Council,. .
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2 -` Th.e water main'..,from .which a.erviee' is to.
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be derived is. in place 'acros:s`'the .full
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frQntag® of - the parcel (s) revue ting
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service or is, if deemed .neceasary by
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the cityEngineer, extended' 'across the
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full frontage of said parc'el(s.)
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constructed to standards acceptable to
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the City of Petaluma .and" dedicated to the
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City for public use.'
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F . FOR AREAS OUTSIDE Or THE ADOPTED 'SPHERE OF
Y�IpLU ]OCR
Reso. 91-16 N.C.S.
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1. Need is demonstrated by evidence''that:
K^'r'
a) The existing water supply is
contaminated. The dater will be' deemed
contaminated if' :it contains 'any
constituent in . a, concentration
exceeding current.maximium contaminant
level,(m.c.l `) fnr drinking water as
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established by the State -of California,
Department of Health. Services
(9..C.D.H.B.). The water contaminated
shall be clearly documented
by .a letter from tha'Sonoma County,
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Department of .iHealth': The letter and a
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copy of • a recent_ water analysis - report .
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performed byS.C.D,i:.,S., approved lab
ra,
_a
shell he_ submitted alone with any
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-' Application claiming-�k�is,
If. deemed appacopriate, the.appl.icant may
ode talso be required'to pry
the contamination cannot be reduced belaw
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, m.c-l. concentrations by the installation
of a water treatment system:
b) The existing water supply is ekhaust'ed,
The water supply ,will be'`deemed exhausted
if the water production capacity of the
supply .is less than, required by the
Sonoma County.Public Health Department
for a single family, ree.idential
dwelling. The current capacity of the
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existing water system and the
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availability of water in the area
shall be clearly documented•by a
letter from the Sonoma County public
Health Department along with a copy
Reso. 91-16 N.C.S.
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of a, recentcapacity test signed by a
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registered civil engineer, or a..
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licensed drilling or pump.contraetor.
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This letter and test documentation
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shall be submitted. along with any
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application claiming this.need. If
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deemed appropriate, the applicant may
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also be required to provide -evidence
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that a reasonable effort has been made
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to: increase the eater supply.
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2•. service stay be provided to dwellings or
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non-residential land uses in existence on
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_Decembgr '5, 1983, (the date .of th6 adoption
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oaf the first'comprebensive water policy) or
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for dwellings for which�build ng,permits
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have be_en i®"sued prior to-,December.5, 1983,
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or`fo`' non-ne idential uses but only upon
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the approval of the City Council:
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3. The water main from,which service is to be
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deriv®d.is in place across the full
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frontage of the parcel(s,).requesting service
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or is,, if', deemed necessary by the City
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Engine'er,'extended across the full frontage
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of said parcel(s), constructed to standards
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acceptable to the, City of Petaluma End
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dedicated to the City for public use.
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II. Applications for outside.wataer service.within the
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sphere of xnflu'ence shall be reviewed and
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conditionally approved orsdenied by the City Engineer
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and th'e Director of Community Development and Planning
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in accord with the policies and conditions herein set
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forth.
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III. For areas outside the sphere of Influence where.
a clear residential health, -hazard exists, requests
shall be. reviewed on a case-by-c"ase.basis by .the city
Council.
IV. Every outside water service approval shall be subject
to the following conditious and, any. other conditions
the city Engineer and Director of Community 'Development
and Planning deem necesgaxy to protect and promote the
interests,of the city of Petaluma Slid conditions shall
inplement.ed or compiled with by the eppl' cant, to the
satisfaction of City gtaff prior to installation of the
water meter. -
I. For propert er, within the Sphere of Influence,
annexation impact- lees, aa-established by the
city council; shall ba-pa d prior -to the
4natallatigA of, ilia water meter end where it , is
deeted' by tie' City -Engineer and-71,th.e. Community
Developmer t and -Planning Direct-drr that
immediate annexation is feasible, annexation .
shall.become a condition .of approval.
2. Any ex4cension of an approved outsid®:water
servias for use not specifically approved by
the cLty, e.g.,, a second dwelling, shall be
cauach- for the discontinuance, of service. The
water is for residential purposes unless otherwise
spocifically approved by the city Council.
3: "Outside" rate to be established by city Council
resolution, which reflects tile'current rate for
metered, water service as per Petaluma 'Murii.cipal
code,and an additional fee for service outside
city `limits.
Rego, 91-16 N-C.S.
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4. An agreement shall be executed between -the
property owner and the City, to run with the
land, which commits present and future property
ownersto the construction of, or payment for
frontage improvements (i..e.., one-half street,
curb, gutter, sidewalk, water lines for domestic
use and fire protection, sewer and.storm drainage
facilities,to City Standards)", atthe option of
the City at such time as the property is
subdivided, annexed or abutting properties
construct similar improvements. '.Dedication of
right-of-way for public streets or easements
for utilities.may be required..
5. Water service requested for lands lying;w-ithin
the sphere of influence proposed for subdivision
must meet City Development standard's and have
direct abutting,acIc,ess to an improved/public
street des'ignl6d �'to meet. City Standards.
r Maximum size service shall be limited to 3/4 inch
service unles"s otherwise specifically approved by
the City council.
V. Resolution 9975 N.C.B. regarding water extension policy
to property.outside the corporate limit of the City is
hereby repealed in its entirety.
Reso. 91-16 N.C.S.
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3 BE IT FURTHER RESOLVED that until/unless the water mains are
4 upgraded to the City',s satisfaction,* no further hook-ups
5 shall be permitted in the area westerly of Bantam bray
6 con 'sisting of properties in the vicinity of Western Avenue
7 Chileno Valley Road, Spring Hill Road, Cleveland Lane and
8 Chapman Lane; and,
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10 That Resolution 89-67 N.C.B. is hereby repealed.
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Under the poorer and authority,conferreii, upon thiA. Council by the Charter of Raid City.
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1 ftE1'E:IZF:NCE: I hereby certify the dorcgoing Resolution was introduced and adopted by thisApproved m o
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Council of the City of Petaluma at a (RegWAr.) 0MY meeting > 1
.........d"ELL Ar ........., 19..91., by the
on the ..22IId ............. day of .. ,� '
following vote: �............
City A orney
AYES: Head, Uavis, Sobel, Nelson, Vice Mayor Cavanagh, Mayor liilligoss
NOES: 0
ABSENT: %V else
A7MS"r: _................
�.:
'. .. ... ....... ..............
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- 14'�ayor
ity ark
Oula+�l Fllru�.. ..................... _.....
_.
16. .. Oil;
CA III N3
EXHIBIT "E99
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t
EXHIBIT .IV
GENERAL MAINTENANCE AND CONDITION OF THE FIELD
MhNIMUM SAFETY STANDARDS
1. The dimensions of the field, should conform with the specifications in the Official ASA
Guide and playing rules set forth by the Amateur Softball Association of America or other
recognized associations, as agreed 'in writing by both parties of the Lease Agreement.
2. The entire playing area should be free of any holes, depressions, raised sprinkler heads and
other hazards.
3. Clear infield of stones, pieces of glass, foreign objects and debris.
4. Position backstop to be sure it is the properdistance from home plate. Ensure that
screening is secure with no sharp protruding edges.
5. Be sure all fences are in good repair and free of'protruding hazards or sharp edges.
6. Inspect stands/bleachers for structural soundness and safety.
7. Be sure waming tracks are properly situated and meet approved maintenance
recommendations:
8. Make sure the spectator areas area a safe distance. from the field of play and are properly
screened. Pay special attention to screening for spectator areas behind first base and third
base, to protect against foul balls and overthrows.
9. Light stanchi'ons,.fence posts and trees that are near the field of play should be properly
cushioned or protected and always be declared as "out of play" areas. All "out of play"
areas should,. ideally, be cushioned or fencedoff or, at the minimum, marked by paint or
chalk lines.
10. Dugout areas should be properly positioned, fenced and set back from the field of play.
11. Pay careful attention to the installation and maintenance of home plate and the pitcher's
rubber. Be careful 'of protruding edges or corners, that are raised above ground level.
Breakaway bases have been proven safer in minimizing sliding injuries and should be
considered for your field.
12. If the field is used.for other sports, inspect for fixtures or equipment that may have been
left, such as little league base pegs.
13. Require that officiating be done exclusively by properly trained umpires who are currently
registered with the agreed upon governing body.
JC/myTiles/jim:Exhibit IV:Gen Maintehance.and Condition of the Field
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PRE -GAME INSPECTION
111MUM SAFETY $TAND_A1
1. A physical inspection of the field should bemade prior to every game by an ASA
registered umpire-or'a representative of the field owner with the authority to cancel play
if the field does not meet minimum safety standards.
2. If the weather has, had;an effect on the condition of the: field, -the playability of the field
should be determined with safety of participants as the number one consideration. Under
no conditions play when there is lighting in the area.
3. Check.bases to be sure they are correctly installed and.,operating properly. The ground
around the bases should be flat and safe,`with no protruding pegs or spikes that are used
to anchor bases in place.
4. Check the home plate area. This should'be a flat surface with no raised or protruding
edges. The'batter's box should not have or develop deep holes.
5. The pitcher' ,rubber and surrounding area should be kept in good repair. Pay special
attention to depressions and holes that maybe dug by the repetition of pitchers'
deliveries. 'These holes may pose a hazard to pitchers or infielders and may also cause
batted balls to take errant. hops.
6.. "Out of play" areas should be clearly defined and thoroughly understood by all members
of both teams. This should be communicated by the umpire through the managers.
7. Make sure the one deck circle is a safe distance from the dugout and home plate.
8. Check the infield and basepaths for stones, small holes, and debris that can cause bad
bounces or poor footing.
9. Measures should be taken to prevent spectators and' children from wandering onto the
field or into the dugout or warm-up areas.
10. Require that proper safety equipment, e.g., batting helmets, warm-up bats, catcher's
protective: gear is used as prescribed by the official ASA Guide & Playing Rules.
11. In rainy or. misty, weather, the top of bases, .home,plate and the pitcher's rubber can
become very slippery. Proper.precautions should be taken to dry these surfaces and to
warn players.
12. A procedure should be established to allow for the umpire to communicate suggestions
for maintenance improvements to the field owner.
k/myhies/jim:minimum safety standards
EXHIBIT 'F"
SUBORDINATION AGREEMENT
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (the "Subordination Agreement") is made and
entered into this day of 2001,.by and between THE CITY OF
PETALUMA, a public body corporate and politic ("Lessor"), REDWOOD EMPIRE' SPORTS
ASSOCIATES, INC., a California corporation ("Lessee") and
("Guarantors")
RECITALS
This Subordination Agreement is made with reference: to the following facts:
A. Lessor and Lessee have entered into that certain Lease Agreement dated
2001 "(the "Lease") whereby Lessee has leased from Lessor certain real
property located in the City of Petaluma, County of Sonoma, State of California, more
particularly described in Exhibit A attached hereto and incorporated herein .(the "Subject
Property").
B. Lessee. anticipated obtaining a construction loan (the "Construction Loan") to
finance the construction of improvements on the Subject Property more particularly described in
the Lease. Lessee anticipated that the lender making the Construction Loan may require. that it
be secured by a first deed of trust against the Lessor's fee.titlednterest in the Subject Property.
C. If the Lessee obtains a Construction Loan, Lessee shall also obtain permanent
financing which shall be utilized to pay off and retire, complete- the Construction Loan (the
"Permanent Loan"). Lessor will require that as an absolute. condition precedent to the Lessor's
obligation to subordinate its interest in the Subject Property to the Construction Loan; Lessee
must obtain a binding commitment for the Permanent Loan, and the lender making the
Permanent • Loan must agree that the Permanent Loan be secured by a deed of trust against
Lessee'sleasehold interest in the Subject Property.
D. Lessor agrees to subordinate its fee title ownership interest in the Subject Property
to the deed of trust ;securing the Construction Loan (but not the Permanent Loan) on the terms
and subject to the conditions hereinbelow set forth.
E. Guarantors wish to guarantee Lessee's performance under the Lease during the
term of the Construction Loan until such time as the Permanent Loan is in place.
1
ACCORDINGLY,.the parties he aver as.roliows
A L R EEMEN'T
1. SUBORDrN�ATTON T`O MNSTRTTrT'ION LCiAN: Provided that Lessee is .not
then in default under the Lease, then upon py (30). `calendar days' written notice to Lessor and
Lessor's counsel enclosing true and correct Copies --Of the Construction Loan Documents (as
hereinafter defined), Lessor shall execute and 'record a single subordination agreement
(hereinafter the "Construction Lender's Subordination Agreement") in such form as may be
satisfactory to Lessor and. Lessor's counsel (as. hereinafter defined) subordinating its fee title
ownership interest in the _Subject Property Pity to a 'Construction Deed of Trust (as hereinafter
defined), provided that Beneficiary shall have no obligation to execute and record such
Construction Lender's Subordination Agreement unless Lesser can first comply with each of the
following conditions set forth in Paragraph 1.1 through 1.20, below, inclusive, at no cost to
Lessor which conditions shall conclusively be deemed to :be for Lessor's sole benefit and can be
waived only by a subsequent written instrument executed by Lessor, Lessee and Guarantors and
supported by independent_ consideration:
1.1. The Construction ,Deed of Trust shall seure a Construction Loan to Lessee
from a responsible and solvent .California bank, California savings and loan. association, national
insurance company or other similar institutional lender acceptable to Lessor (the "Construction
Lender")-.
1.2 The Construction Loan shall be evidenced by a promissory note (the
Construction Promissory Note"), a California deed of t[vst (the ^Construction Deed of Trust")
and a' Building .or Construction Loan Agreement (the "Construction Loan Agreement"), whim.
documents and all other ra=tees, security, agreements, financing statements; coIlateial.
assignments and other documents and e
tnstrum,.nts customan3.y rewired by the' Construction
Lender are herein referred to collectively as 'the "Construction Loan m Docuents sll of the
Construction Loan Documentsshall be in the standard forms customarily used by the
Construction Lender in making —construction loans for the construction of a project similar to that
being developed, by Lessee on: the Subject Property. Lessor and Lessor's counsel shall approve
the Construction Loan 'Documents in advance. Lessor and .Lessor's counsel agree to respond
within a .reasonable time. If Lessor. and Lessor's `counsel do not respond to Lesser within thirty
(30) days of submittal of all, Construction Loan Documents to Lessor and .Lessor's counsel, the
form of the Construction Loan Documents shall be deemed approved but only to the e,-tent the
2
form of the Construction Loan Documents are not in coniiiet with any es, -press provision or
condition of this Subordination Agreement.
1.3 The Construction Loan Documents shall evidence a loan by the
Construction Lender to Lessee of,a principal amount not to exceed the lesser of one hundred
percent (IXio) of the costs of construction of all improvements on the Subject Property (Subject
to the limitations of Paragraph.l.5, below). determined as of the anticipated 'aate .of completion of
the work of improvement by the Construction Lender and approved in advance by Lessor in
writing or One Million Seven Hundred Fifty Thousand Dollars ($1,750,040.00). Lessee shall
deposit with the Construction Lender (or, if the Construction. Lender does not require such
deposit; with .Lessor) prior. to the: effective date of the subordination .herein described, an amount
in cash equal to the difference, if any, between .(i) the net amount of the Construction Loan and
(H) the total sum of- hard and soft costs of construction of all improvements. on the Subject
Property as determined by the Coristtuction Lender and approve&by'Lessor in writing.
1.4 The Construction Loan Documents shall require all sums of the principal
amount of the Construction Loan disbursed by the Construction Lender to be utilized for actual
on -site ,construction :ofimprovements to the Subject Property ,complying with applicable land use
approvals, and shall include a procedure, for disbursement of such principal sum only upon
su'ornis5 on to the Construction Lender of 'original, dated invoices for work or materials, jointly
executed by. Lessee and by the. contractor or materialman, or by an equivalent escrow, voucher,
or similar arrangement to assure disbursement only for work actually done or materials actually
incorporated into the Subject 'Property.
1.5 No more than ffteen percent (15 ro) of the, gross proceeds of the
Construction. Loan may be allocated and disbursed during the course of construction for. soft
construction costs. As used herein, ".soft construction costs" shall include loan `fees, escrow fees;
and "points." (subject, also, to the limitation set forth, in Paragraph 1.'8, below); interest; interest
reserve, loan origination fees and loan administration fe-,s real or personal property taxes and
assessments; casualty and liability insurance premiums; environmental consultants' and
application fees; and similar "soft costs" incurred by Lessee in connection with the constriction
on the Subject Property as "soft costs" are generally understood in the construction industry.
None of the proceeds of the Construction Loan may be disbursed to Lessee as reimbursement for
any expenses which have been , incurred by Lessee prior to the date of recordation of the
Construction Lender's Deed of Trust.
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P p the Cons�;.tion Loan shall by the terms of the
.6 The rinci al amount of
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Construction Pronussory ;Note bear .interest, uut�ally, at a note rate (exclusive. of .loan fees, .escrow rate charges, penalties. and other fees wnich are aII to be .paid by � from its own fun
to exceed twelve percent � (12 %) .per errata. The. note rate funds) not
Construction .Loan pursuant to any formula or standard � maril � during the term of the
Lender or similar loans but in no event ma e Y used by the Construction
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(12 %)
. Y rate of. interest exceed 'twelve percent
1.7 No amount. shall be required by the terms of the Construction Loan
Documents to be paid by Lessee to the Constriction Lender prior to twelve 12)mon
date of recordation- of the Construction Lender's Deed of and the the due � date ths to the
Trust a
Construction Loan shall be no more than twenty-fo
recordation. ur (4) months after the date of such
1.8 In no event shall the loan fees, escrow fees and "points" involved within the
Construction Loan exceed three percent (3 %) of the original
� principal amount of the Construction
Loan. The loan fees, escrow fees and " ^
points shall be included in the limitation on the soft costs set forth in Para=ph `1.�, above.
1.9 The Construction Loan Documents shall provide an interest reserve in an
amount sufficient to .pay, the total projected accrued interest accruing through maturity of the.
Construction Loan. The interest. reserve. shall be included in the limitation on the original
principal amount referred to in Paragraphs 1.3 and 1.5, above. b
1.10 The Construction Promissory Note may include late charges; .prepayment
Penalties and other fees or penalties that are customarily included in similar loans b institutional
lenders; provided, however, that .tile Y
, amount of ;such f=, charges or penalties are not
substantially. n :excess of the amount of. such fees, charges or
made b institutional lenders at the time of funding a b Penalties assessed in similar loans
Y nding the Construction Loan.
1.11 The Construction Loan shall notexpressly
the 'Construction Lender against provide for personal recourse by
bamst Lessor andlor any assets of the Lessor .other than Lessor's
interest in the Subject Property.
1.12 ' If the Construction Lender should require that. the Construction Lender's
Subordination A.greernent be in ;the form and substance of the Construction Deed of Trust ,. Lessor
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shall have no obligation to execute the Construction ,Deed; of Trust unless (1) the Construction
Deed of Trust expressly provides that Lessor has no monetary obligation to the Construction
Lender; and the Construction Lender has no recourse .against Lessor; (2) the Construction Deed
of Trust contains a provision substantially similar to Paragraph 8 of this Subordination
Agreement, below; (3) the Construction Deed of Trust shall snot contain any waiver of notice,
reinstatement rights, redemption rights, rights. based on limitations of action, .or other statutory or
common law defenses; provided, however, that Lessor may waive certain statutory guarantors'
defenses if and only if the defenses are absolutely necessary for the Construction Lender's ability
to enforce the Construction Deed of Trust, the "waivers do not violate any term of this
Subordination Agreementand the; waivers are approved by Lessor's counsel. Notwithstanding
anything stated in.the preceding, sentence to the contrary, in no event shall Lessor be required to
waive the provisions of California Civil Code sections 2809 (except to the extent the obligations
of Lessee under the Construction Promissory Note may be different than the obligations of
Lessor under the Construction Deed of Trust), 2810, 2839, 2845 and of California Code of Civil
Procedure sections 580a, 5.80b 586d land 726.
1.13 A solvent and responsible California bank or California savings and loan
association satisfactory to the Construction Lender and: Lessor shall have entered into a binding
take-out agreement to make a loan to refinance the maximum sum of the Construction Loan (the
"Take -Out Commitment" ). The Take -Out Commitment. -must be for a term of not less than
twelve (12) months longer than the maximum term of the Construction Promissory Note. ' Lessee
must supply Lessor with proof of payment of the Take -Out Commitment fee and any and all
other charges and costs incurred in obtaining the Take -'Out Commitment. The Take -Out
Commitment must provide for a Permanent Loan in an original principal amount equal to or
greater than the *maximum principal amount of the Construction Loan. The Take -Out
Commitment shall also provide that the funding of the Permanent Loan is conditioned only upon.
the completion of improvermnts on the Subject „Property. The Permanent Loan must not be
secured by any portion of. the Lessor's interest in the Subject Property or any :other assets of
Lessor. The Permanent Loan may be, secured by the Lessee's interest in the Lease. Lessee
hereby authorizes,Lessor and its counsel to contact the lender malting the. Take -Out Commitment
prior to the recordation of the Construction Loan for purposes of verifying the terms of the Take -
Out Commitment and the Permanent Loan.
1.14 In addition, to its obligation under the .Lease, Lessee shall deliver to Lessor a true
and accurate copy of its construction contract (the "Contract") with a licensed California general
contractor (the "Contractor") who shall construct the improvements on the Subject Property.
Lessor shall approve the form of the Contract and the business reputation and financial
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creditworthiness of the Contractor. Lessor agrees to, respond to Lessee within a reasonable time.
If Lessor does not respond within
P thirty (30)days; of its receipt of both the Contract and
competent financial information on the Cont actor, then Lessor shall be deemed to have approved
the Contract and the Contractor . except. to the extent that any provision of the Contract may be in
conflict with any express provision or condition of this Subordination Agreement.
The Contract shall provide that , either . Lessor or any receiver appointed by .a court of
competent jurisdiction may at its election either assume or reject the Contract upon re -:entry upon
or other taliirig possession of the Subject Property after any default by Lessee under the Lease or
this Subordination Agreement. ° The .Contract shall require and Lessee shall cause the Contractor
to obtain, payment performance and completion bond or bonds in the full amount of. the Contract
from financially responsible sureties 'licensed to do business in the State of California. The
delivery of said bonds shall satisfy ;the requirements of Paragraph 9 of the Lease. The form of
the bonds .of and the financial: creditworthiness of the sureties shall be :approved in advance by
Lessor.
1.15 The written notice to .Lessor and. Lessor's counsel requesting execution of
the Construction Lender's Subordination Agreement shall be accompanied by true and correct,
copies of all of the Construction Loan Documents, the Take=out .Comrriitment and of aIl other,
documents, including escrow instructions, required by the Construction Lender, the lender who is
committing to make the Permanent Loan and/or the escrow company in connection with the
closing of the Construction Loam, and shall represent and warrant to Lessor in writing that all
such documents have been provided to Lessor and that they are true and correct.
1.16 Lessor shall be permitted access to the escrow . for closing of the
Construction Loan and shall have no obligation to execute the Construction Lender's
Subordination Agreement unless Lessor or Lessor's counsel has. verified that the final
Constriction Loan Documents have. not been substantially modified and that. they will upon
recordation of the Construction Lender's Subordination Agreement 4be an force m" substantial
accordance with the terms of the copies thereof provided to Lessor with the written 'notice
requesting Beneficiary'-s. execution of the Construction Lender's Subordination Agreement.
Lessor and Lessor's. counsel,agree to respond within a reasonable time. If Lessor and Lessor's
counsel do not respond within thirty (30) days of their receipt of the final Construction Loan
Documents, then Lessor ;shall. be deemed to have approved the .final Construction Loan
Documents except to the extent the final Construction Loan Documents may be in conflict with
6
any express provision or condition of this Subordination..Agreement or the Construction Loan
Documents as approved pursuant to the terms of Paragraph 1.2.,, above.
1.17 The Construction Loan Documents and the Take -Out Commitment must be
assumable by Lessor -upon the earlier of termination of the Lease or 'the Lessor's re-entry onto
the Subject Property at no cost to Lessor.
1.18 Lessee shall have complied with the terms of Paragraph 6 below.
1.19 Guarantors, -acceptable to and approved by Lessor (after providing to the City
Manager information acceptable to the: City Manager that the Guarantors have the financial
capability of paying off the Construction Loan and meeting the other obligations of Lessee and
Guarantors under the Lease, this Subordination Agreement, and the Continuing Personal
Guaranty (Exhibit "B hereto)), must execute a guaranty agreement in.favor of Lessor in a form
and substance as attached hereto as .Exhibit :.B. Guarantors shall also deliver to Lessor for
Lessor's prior approval current financial statements accurate within three (3), months of the
projected date of funding the.Construction Loan which must disclose no materially adverse
change in the financial condition between the date of this Subordination Agreement and the date
of the financial statement.
1.20 Lessee must reimburse Lessor for all attorneys' fees and costs incurred by Lessor
in reviewing and approving the Construction Loan Documents in an amount not to exceed Five
Thousand Dollars ($5,000.00).
2. MODIFICATION OF CONSTRUCTION LOAN DOCUMENTS: Upon
execution and recordation of the Construction Lender's Subordination Agreement by Lessor and
thereafter; any modification, amendment or extension of any provisions of the Construction. Loan
Documents without prior written consent of Lessor shall not bei binding or enforceable against
Lessor. Lessor may withhold its consent to any modification, amendment or extension of the
Construction Loan Documents .at its sole discretion. In the event the Construction `Loan
Documents are extended or modified after recordation of the Construction Deed of Trust without
Lessor's .consent, this ',Subordination Agreement shall be null and. void and of no further force or
effect without notice or further documentation.
3. DEFAULT UNDER CONSTRUCTION LOAN DOCUMENTS: Any monetary
or nonmonetary default- of breach by Lessee under the terms of the Construction Loan Docu-
ments which in the good faith judgment of Lessor carries a significant risk that the Construction
Lender may declare a, default, cease disbursements under the Construction Loan Documents,
and/or accelerate the date upon which the Construction Loan indebtedness must be' paid, shall be
a material default under the terms of the. Lease unless Lessee within three (3) business days after
7
written.. notice from Lessor provides evidence satisfactory to Lessor that (I) such default has not
occurred; (2) such default has been cured; or (3) the Construction Lender has waived such default
in writing. In the event Lessee fails to cure said default 'in the manner described in (1) through
(3) of the immediately preceding sentence, Lessor may, at Lessor's sole option and election, upon
three (3) days' advance written notice after the expiration of the three (3) day notice period
described by the immediately preceding sentence, declare the Lessee to be in. default under the
Lease and commence and.pursue all of its remedies under the Lease, and, without any obligation
to Lessee to do so, may also pay or otherwise cure any such breach or default of the Construction
Loan. Documents and perform ':any obligation on behalf of Lessee, in which event Lessee shall
remain in default under the Lease and the amount of the sums. paid or liabiIities incurred by
Lessor to. cause such payment, performance or other cure shall be added to the amounts
recoverable by Lessor under the.Lease. Lessee acknowledges that in executing this Subordination
Agreement Lessor will be relying'upon , the provisions of the Construction Loan Documents for
the protection of Lessor's interest in the Subject Property.
4. IMPROVEMENTS APPLICATION nF nNSTR CTION LOAN PROCEEDS:
The application of any funds disbursed by the Construction Lender other than to payment for
materials delivered to and installed on, and labor and work' done and performed for installation of
-improvements on the property, shall upon three (3) .days' advance notice. to Lessee constitute a
default under the Lease. All improvements constructed, erected or installed on, any portion of the
Subject Property, and all materials delivered to the property upon delivery; shall be deemed
annexed to the Subject Property.
5. INSPECTION• DISCLOSUpE_ Lessee shall permit access to the Subject Property
by Lessor and'.Lessor's agents at all times, ,Monday through Friday, during daylight hours, for
purposes of inspecting any work of improvement thereon. Lessor and Lessor's agents and
attorneys shall be permitted upon reasonable notice to Lessee and at reasonable times. as Lessor
may elect to .inspect all books, records, documents, invoices, receipts, disbursement orders,
letters, notices, claims, contracts, insurance policies and other matters whatsoever related to the
work of improvement on the property and the Construction Loan, all without limitation, and to
make and keep copies thereof. Lessee shall immediately in writing notify Lessor of any event
a.which constitutes a material breach or default under the Construction Loan Documents. Lessee
acknowledges that Lessor may contact the Construction Lender and. any contractor or
subcontractor to ascertain such facts ,as Lessor may deem material -to Lessor, and Lessee agrees to
assist Lessor in making such contacts. Any breach or refusal by Lessee to abide by the terms of
this Paragraph 5 shall constitute a material default under the Lease.
8
6. MECHANTC'S LIENS: No work shall: be: commenced or materials: delivered to
the Subject Property prior ao the date of recording .of the Construction Lender's Subordination
Agreement,, unless. (1) such work is not in violation of the requirements of the Construction
Lender and (ii); of the time of, recordation of the Construction Lender's Subordination Agreement
Lessor receives, at the sole cost and expense of Lessee;. a title insurance binder or policy or
endorsement to its existing policy of title insurance assuring that no mechanic's lien has attained
priority over .the Lease by reason of such subordination. Lessee shall keep the Subject Property
at all times clear of any and all .mechanics' and materiahnen's liens and shall pay when due all
claims for labor performed and materials furnished. If any such claims remain unpaid or claims
of Lien are recorded against the Subject Property, lessor at its sole election may upon three (3)
clays' advance written notice declare the Lease to be in default. and further, after expiration of said
three (3) day cure - period and 'if Lessor so elects, Lessor may ;pay, compromise or other satisfy
such claims, in which event the sums so expended by. Lessor shall also be immediately due and
payable by Lessee to Lessor,
7. CESSATION -OR DELAY: Any cessation of work on the improvements to be
constructed on the 5ubj'eet Property for chore than twenty (20) days for any reason and any other
delay winch could have the effect'`of prolonging construction ;beyond the term of the Construction
Loan Documents, whether or not as breach. or, default under the Construction Loan .Documents;
shall be an immediate, material default hereunder unless upon demand by Lessor; Lessee within
three (3) days furnishes .to Lessor evidence satisfactory to Lessor both that such event is not a
default under the Construction Loan Documents and that the remaining term of the Construction
'Loan Documents either has been extended or is adequate to assure completion and receipt of a
final certificate of occupancy within such remaining term of the Construction 'Loan Documents.
No such extension of the term of the Construction'Loan Documents shall be binding upon Lessor
if it would cons-titute, a default under Paragraph 1, above.
S. NO JOTN7 VENTURE: NO LIABILITY: Nothing in the Lease ..nor this
Subordination Agreement shall .be deemed to make Lessor a partner, cc -obligor, co -obligee, joint
venturer, agent, or fiduciary. of Lessee nor of .any Construction Lender. The relationship of
Lessee and Lessor is strictly and solely that of lessee and lessor, respectively. In particular,
without Iimiting the generality of the foregoing, nothing in the Lease and no action taken by
Lessor pursuant thereto or hereto 'shall be construed or 'interpreted to make or constitute Lessor as
a beneficiary, assignee, delegee or co -obligor or co -obligee of any of Lessee's rights or
obligations under any Construction Loan Documents. All rights and remedies of Lessor
thereunder and hereunder, and all obligations and Iiabilities of Lessee thereunder and hereunder,
9
are solely for the protection of Lessor's interest in the Subject Property subordinate to any
Construction Loan. Documents- Lessor has no, obligation or duty` to Lessee or to. an
Lender to select,y Construction
review, inspect, supervise, pass judgment upon, or inform Lessee or the
Construction Lender of the quality, adequacy or suitability of any ect of o terms rms of or
p ctian Loan Documents or of any aspect of the
performance of the terms or any Constru
construction work, the plans and specifications therefor, any. Construction Loan Documents
contracts; documents, architects; contractors, subcontractors, and materialmen employed by or
for Tenant, the progress or: course of construction and its conformi or nonconformi
Of the Construction Loan. Documents or the ry any
. terms of any other contracts or the plans and
specifications therefor, or' any other thing whatsoever, whether or not known to Lessor now or
hereafter..Lessor.owes. no duty -of care to protect Lessee-aga any ne iaeIIt, fainty, inadequate
or defective construction and ,shall not be responsible or liable to. Lessee, Construction Lender or
any oilier person for negligent; faulty, inadequate or defective building or construction or for any
loss or damage of any kind, to :any person or property.
9. REMEDIES CUMULATIVE: All remedies herein provided shall be cumulative
with any other remedy herein °or now or hereafter- e
xistinb `by law, Every power or remedy
hereby given to Lessor under the Lease or to which Lessor may otherwise be entitled, may (after
expiration of ;the applicable cure periods) be exercised from time to time and as often .as may be
_
deemed expedient by them, and either of them maypursue inconsistent remedies. The rights and
remedies of Lessor under the Lease or hereunder, whether or not exercised, under no
circumstances shall be construed or interpreted or otherwise deemed to limit any personal
recourse Lessor may' have. against, Lessee
in the event of; foreclosure or sale of the property by the
Construction Lender"under the. Construction Loan Documents.:
I0. TERM. C'ONTI 7T TG ()J3LFCTA7qC)N:.
The terra of this Subordination
Agreement shall continence upon execution of the Lease and shall .terminate without notice or
Rather documentation on' the earlier of:. (i) a date forty-eight (48) months. after -the date of
execution of the Lease; or (ii) the date of early teinnination of the Lease.
Il. f ARAIV'L'EE; Guarantors hereby unconditionally and absolutelyagree to
guarantee the Lease duringthe
terra of the Construction Loan, which
guarantee shallnot be.
terminated or released until the PO=anent Loan is recorded. Guarantors agree to execute and
deliver to Lessor a guarantee agreement in the form and substance attached hereto as Exhibit " "
Prior to the recordation of the Construction Loan. B
10
12. NOTICES: All notices required or,permitted
q ' p fitted to be given hereunder shall be given
by personal delivery or by deposit into ,the United States Mail, certified or registered, "return
receipt requested, .postage prepaid to the following addresses, or to any other mailing address as
may hereafter be given by notice as herein provided, and notices shall be deemed given on. the
date of personal delivery or the date, shown on the return receipt, or if no return receipt is
returned,.forty-eight (48) hours after deposit in the mail:
To Landlord, City of Petaluma
City Hall
11 English Street .
Petaluma, California 94952
Attn: Fred Stouder
With Copy to: Richard Rudnansky
Meyers, Nave, Riback, Silver & Wilson
401 Mendocino Avenue, Suite 100
Santa Rosa, California 95401
To Tenant: Managing Partner
Redwood Empire Sportsplex, LLC
124 Glacier Court
Petaluma, California 94954
13. TIME OF ESSENCE: Time is of the essence of all of Lessor's and Lessee's
obligations hereunder.
14. SEVERABILITY: 'In the event that any provision or clause of the Lease or this
Subordination Agreement conflicts with' applicable law, such conflict shall not affect other
provisions of the Lease or this Subordination Agreement which can be given effect without the
conflicting provision and to this end the provisions of the Lease and this Subordination
Agreement are declared to be severable.
15. CAPTIONS The title, captions and headings to paragraphs herein are for
identification only and are not to be considered part of the substance of the provision.
16. OFFSETS: 'No offset or claim which Lessee now has or may have in the future
against Lessor shall relieve Lessee from its obligations to Lessor under the Lease.
11
17. CONST TJ' 'I'InN;
This Subordination Agzeement `is and shall be construed and
interpreted as a part of :the Lease. In the, event; any provision. of the Lease fails to include, or
imposes lesser obligations upon Lesseethan the provisions of this Subordination Agreement, or is
less specific, the additional, more e,.ific or
sp greater requirements of this Subordination
Agreement shall govern without affecting the balance of .the Lease or the remaining portions of
such provision in Beneficiary's Deed of the Lease,
18. EXECITTION dF ADDiTIONAL D CilviFjr1'TS: Both parties hereto aee to
execute any and all additional documents and/or instruments necessary to carry out the terms of
this Subordination ,Agreement All documents to be prepared to carry out the terms of this
Subordination Agreement, other than those documents specifically to be .-provided by any
Particular party., shall be prepared by such persons mutually acceptable to both parties, and the
costs incurred in the preparation of any such documents shall be borne by the party for whose
behalf the documents were prepared.
19. ATTORNEYS' FEES: if legal action'is instituted by any Ply hereto for damages
or to interpret or enforce any of the terms or provisions of this Subordination Aeement, the
Prevailing g party shall be entitled to reasonable ,attorneys and experts' fees in addition to such
other recoverable costs and damages; gas mnay be awarded by the Court_
20. BINDING: : Subjectto the restriction= on assignment set forth in the Lease, this
Subordination Agreement shall inure ;to and be binding on all of the parties, their estates, heirs,
Personal representatives and assigns.
IN WITNESS WPMPEOF, the undersigned ,have executed this Subordination Agreement
on the date and year first above written.
CITY OF PETALUMA
City Manager
/I/
REDWOOD EMPIRE SPORTS.
ASSOCIATES, INC., a California
Corporation,
.By '
Title
12
ATTEST:
GUARANTORS:
City Clerk
APPROVED AS TO FORM:
City Attorney
APPROVED:
APPROVED;
Risk Manager
APPROVED:.
Finance Director
c:lword51subord.doc
1/5/94 (fmk)
13
Exhibit A
Exhibit B
c_lword5lsubord.doc
1/5/94 (fmk)
EXHIBITS TO SUBORDINATION AG CEMENT
(to be,attached)
Description of Subjec Froperry
GumaLee Agreement
EXHIBIT "A":
DESCRIPTION OF SUBJECT PROPERTY
HPP!r-r.•*r- 1 1` Icl;: G2 : 1T':r' OF PETALLMR 70TT,_;-44'14. F,FI
` FXHIoT"T C
BALLFIELD PARCEL - SDUTH
.PLL TH-PT R AL PROPERTY SITUATED IN. THE COUNTY OF SONDMA, STis"TE OF
CA.LIFDRNIA, BEING- A PORTION OF THE L MDS• OF GLEN A, CRn.2�NER,. LS
DESCRIBED 'BY THAT DEED RECORDED, IN BOOK 2465, AT DZ C;E 295,
OFFICIAL RECORDS OF. SON'OMA COUNTY, DESCRIBED AS FOLLOWS
F T T.
BEGINNING ON„ TH'E NORTHWESTERLY LINE OF SAID LANDS OF CRAMER, . FROM
WHICH THE NORTHERLY CORNER COMMON TO CRAMER PARCEL "B-1" AND
CR NIEP. PARCEL "B" AS SHOWN ON THAT RECORD OF SURVEY FILED IN BDO'K
377 AT EAGE5 21 & 22, SONOriz�, COUNTY RECORDS BEARS
' SOUTH 35°2D'' 55" -WEST 6 2 ' 2 . 1.5 FEET, THENCE, LE)aVING S.P�ID
NORTHWESTERLY LINE, SOUTH 15°36' 16" EAST 292. 06 FEET; THENCE
SOUTH 60008' 1'7" EA'ST 611.99 'FEZ,T'• THENCE SQUTH 38017' 23" EAST
500.00 FEET; THENCE SOUTH 6`3 4 6' 0.8'' EAST 5B2,05 FEET; THENCE
SOUTH `J 6 ° 2 2 31 " EAST 269.26 FEET TQ : THE SOUTHEASTERLY LINE OF
SAID LANDS •07 C.R MER; THENCE, ALONG SAILSOUTHEASTERLY LINE,
]NORTH 35°2S' 3'9 E.ASIT 406.65 FEET TQ THE MOST EPSTERLY CORNER OF
SAID LANDS THENCE, ALONG THE NDRTHEAS`TERLY LINE OF SRI D LANDS,
NORTH 54 °33' 00" WEST 2144.32 FEET TO THE MOST .NORTHERLY CORNER .
OF SAID L;.NDS; AL50` BEING THE S'OUTHEAS'TERLY LINE OF WASHINGTON
STREET, THENCE, ALONG, SAID SOUTHE,?.STERLY LINE,
SOUTH 35°20' 55" WZ'ST 34D'.00 FEET TO THE ROINT OF BEGINNING.
CONTAINING 2 4 B•S ACRES MORE OR LESS.
�...� FRE P.A.RL D B -, _..__ b�uJE-. �. __mcz _
�.�.._. 1�'S�UL-T'I hi�G C 7�;���-�7•E-�.R>"EE-R �._ _ —:... :... __ -
APN; 13v-070-D19
JOB: 1367
DATE: 1-10.-96
ExmIT "B"
GUARANTY AGREEMENT
t � �
City of PeWuma
CONTINUING PERSONAL GUARANTY
1. IN CONSIDERATION OF, and as an inducement for the City of Petaluma, a
political'subdivision of the State of California ("Lessor"), to enter into the Subordination
Agreement between the City of Petaluma, ("Lessor"), Redwood Empire Sportsplex, L.L.C.
("Lessee".) and ("Guarantors") with respect to certain real property specified in the
Lease Agreement between Lessor a.nd.I. essee dated ,,2001 as the Leased Premises,
the -Guarantor, ("Guarantor") hereby guarantees to Lessor, its successors and assigns
(collectively "Lessor") the full and prompt payment of -the, interest. and principal and all other
sums and charges payable by Lessee; its successors, assigns, licensees and concessionaires .
(collectively "Lessee") under the Construction Loan obtained to finance the construction of
improvements .on the Leased Premises ("Construction,LoanNote'), and further hereby
guarantees the full and'timely ;performance and observance of all the covenants, terms, conditions
and agreements therein provided to be. performed and observed by Lessee.
2 Guarantor hereby covenants and agrees to p&with Lessor that (i) if default
(following the giving of notice and passage of the cure periods'available to Lessee under the
Construction Loan Note) shall at anytime, be made by Lessee in the payment of any -such interest
and principal and any and all other sums and charges payable by Lessee under the Construction
Loan Note, or if Lessee should:default (following the giving of notice and passage of the
available cure periods available to Lessee under the, Construction Loan Note) in the performance
and observance of any of the covenants; terms, conditions or agreements contained in the
Construction Loan Note; and (ii) if Lessor shall have given written notice to Guarantor
describing the specific nature of'anysuch default and demanding that Guarantor perform its
obligations hereunder, 'Guarantor will forthwith pay such principal, interest and other sums and
charges, and any arrears thereof, to Lessor and will forthwith faithfully perform and fulfill all of
such covenants, terms, conditions and agreements, and will fortliwitli pay to Lessor all damages,
costs and expenses that may -arise, inconsequence of any default by Lessee under the
Construction, Loan Note, including without limitation all reasonable attorneys' fees, expert
witness fees and-disburserpents incurred by Lessor in enforcing its rights under the Construction
Loan.
3. In addition, in the event either party commences an action to enforce or interpret
this Guaranty, or otherwise arising out, of this Guaranty, the prevailing party in such action shall
be entitled to an award of its reasonable attorneys' fees, expert witness fees and costs of suit.
Guarantor's liability under this Guaranty. shall. be joint and several with the liability of any other
individual(s) who has provided to Lessor a written guaranty concerning the Construction Loan
Note,
Page 1 of 4
Continuing Personal Guarani),
-
4. This Guaranty is an absolute and unconditional guaranty of payment and of
performance. It'shall' be enforceable against`the-Guarantor, its heirs, successors and executors
without the necessity of any suit or ,proceedings on Lessor's part of any kind or nature whatsoever
against Lessee and (except as specifically provided above) without the necessity of any notice of
nonpayment, nonperformance or nonobservance, or any'notice of acceptance of this Guaranty, or
any other notice of demand to which the Guarantor might otherwise be entitled, all of which the
Guarantor hereby expressly waives.
S. The Guarantor hereby expressly agrees that the validity of this Guaranty and the
obligations of the: Guarantor hereunder shall not be terminated, affected, diminished or unpaired
by reason of the assertion or the failure of Lessor to assert against Lessee any of the rights or
remedies reserved to Lessor pursuant to the provision_ s of the Construction Loan. Note or by relief
of Lessee from any of Lessee's obligations under the Construction Loan Note or otherwise by (a)
the 'release or discharge of Lessee in any creditors' proceedings,.r"eceivership, bankruptcy or other
proceedings, (b) the irnpaitment, limitation or modification of the liability of Lessee or the estate
of Lessee in baiahruptcy, or of any remedy for the .eriforeenlent of Lessee's aid liability under the
Construction Loan Note, resulting `from the operation of any present or future provision of the
United States Banitivptcy Code or, :other statute or:from the decision in any court; or (c) the
rejection or disaffirmance of the Construction Loan Note in any such proceedings.
.6. Tlus Guaranty shall be a continuing guaranty and the liability of the Guarantor
shall in no way be affected, modified or diminished by reason of any assignment, amendment, ,
renewal, supplement, modification or extension of the Construction Loan Note or by reason of
any -modification, waiver of or change in any of the terms, covenants, conditions or provisions of
the Constructi11 on. Loan Note, or by reason of 'ally extension of 'time that may be granted by Lessor
to Lessee; or a changed or different use of the Leased Premises consented to in writing by Lessor;
or by reason of any dealings or transactions or matters or things occurring between Lessor and
Lessee. Guarantor hereby acknowledges that there is a continuing consideration'to him for this
Guaranty during .the entire effective -term of this Guaranty and therefore waives and relinquishes
the right to revolve this Guaranty as provided in California Civil Code 'Section 281 S.
T. Guarantor hereby waives the provisions of California Civil Code -Section 2819, as,
amended, and any other; statutes now or hereafter in effects which relate to exoneration of sureties
and agrees that the terms of this Guaranty shall. govern. Guarantor's liability under this Guaranty
shall in no way be 'eliinnated by :any amendment to or modification of the Construction Loan
Note or by any rnpairmbrit of Lessor's rights against Lessee'and the Guaranty shall guarantee the
obligations of Lessee'as, amended or modified, irrespective .of whether.the same result in an
increase in Lessee's obligations and/or a restriction of Lessee's rights under the Construction
Loan Note.
Page 2 of 4
Continuing Personal Guaranty,
1
8. Lessor's.consent,to any assignment or assignments; aridsuccessive assignrnents by
Lessee and Lessee's assians� of the ConstructionLoan Note, made either with or without notice to
the Guarantor, shall in no manner whatsoever release the Guarantor from any `liability as
Guarantor.
.9. The assignment by.Lessor of the Construction- Loan Note and/or the interest or
p
rindP al thereof made either with or -without notice to the .Guarantor shall in no manner
whatsoever release the Guarantor fiorn. any liability as Guarantor.
1.0. All of Lessor's rights and remedies under the Construction Loan Note or under
this Guaranty are intended to be distinct, separate and cumulative, and no such right and remedy
therein or herein mentioned is intended'to be in exclusion of or. a waiver of any of the others.
The obligations of the Guarantor hereunder shall not be released by Lessor's receipt, application,
or release of security given for the performance and observance of 'covenants and conditions
required to be performed and- observed by Lessee underthe .Construction Loan Note, nor shall. the
Guarantor be released by the.maintenance of or execution upon any lien which Lessor may have
or assert against Lessee and/or Lessee's assets provided, however, Guarantor's liability under this
>
Guaranty shall be reduced to the extent of any actual recovery by Lessor through such actions.
l 1. The obligations of Guarantor under this Guaranty are independent of, but shall not
exceed, the obligations -of the Lessee. A separate action may, at Lessor's option, be brought and
prosecuted against Guarantor, whether or not any action is first or subsequently brought against
Lessee, or whether or not Lessee is, joined in any. action, and Guarantor may be joined in any
action or proceeding commenced by. Lessor against Lessee arising out of, in connection with, or
based upon the Construction Loan Note,
12. Durizg the term of this Guaranty, until all the covenants and conditions in the
Construction Loan Note .on Lessee's part to be performed and observed are fully performed and
observed, the Guarantor (a) shall have no right of subrogation against Lessee by reason of any
payments or acts of performance by the Guarantor, in compliance with the obligations of the
Guarantoor hereunder, (b) waives any"right to enforce any remedy which the Guarantor now or
hereafter shall'have against,Lessee by reason of any one or more payment or acts of performance
in compliance with the obligations of -the, Guarantor hereunder, and (c) subordinates any liability
or indebtedness: of Lessee now or hereafter held by the Guarantor to the obligations of Lessee to
Lessor under the'Construction Loan Note.
13. Guarantor hereby submits itself to the jurisdiction of the courts of the State of
California and hereby irrevocably appoints Lessee, or, ifLessee.is a corporation, trustee, .limited
liability company or partnership, all persons of Lessee upon whom service of process may be
served for service upon Lessee as its agents for the service of process in any action.against
Guarantor arising out of this Guaranty. This provision does not affect any right to serve process
upon Guarantor in any other manner permitted by law.
Page 3 of 4
Continuing Personal Guaranty
Guarantor
Dated:
Guarantor
Dated:
Guarantor.
Dated:
Guarantor
Dated:
Continuing Personal Guaranty Page 4 of 4