HomeMy WebLinkAboutOrdinance 2124 N.C.S. 12/17/2001 .
JAN 17 200,
,,„m,~,.~,,~~~~„c~,~,_z ,~„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 PETALI<J1VIA A><_1THORIZING A LEASE OF REAL PROPERTY
15 LOCATED WITHIN THE CITY OF PETALiJ1VIA
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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 cow-t 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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1 Section 4. The City Clerk be, and she is hereby directed to publish/post of this ordinance
2 for the period and in the manner as required by the City Charter.
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4 INTRODUCED and ordered posted/published this 19th day of November, 2001.
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6 ADOPTED this 17th day of December , 2001 by the following vote:
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8 AYES: O'Brien, Healy, Maguire, Moynihan, Mayor Thompson
9 NOES: Torliatt, Vice Mayor Cader-Thompson
10 ABSENT: None
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14 Mayor
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16 ATTEST:
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20 City Clerk mt,, City At rney
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3 1 resaord
32 l 1116101 (fmk)
Or2d. 214 NCS
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1 LEASE AGREEIe'IEN'I'
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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 REIDWOOD EMPIRE
7 SPORTSPLEX, LLC. ("LESSEE").
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9 For and in consideration of the mutual terms, covenants and conditions herein,
l0 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 snap attached as Exhibit "A" hereto (the "Site Map") and
17 more particularly described in Exhibit "B" attached hereto.
18
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.
36
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
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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 f rst 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.
56
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
6o 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.
64
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:
6s First Lease Year through the 2% or $1,000.00
69 - Fifth Lease Year whichever is greater
7o Sixth Lease Year through the 6% or $10;0..00.00
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 Lessor' may, 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
8o 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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86 As used herein,. the term. "Gross Revenues" means all revenues
87 received by Lessee during each calendar year from Lessee's operation
88 of the Sports Complex, described in .Section 5(a) below (including but
89 not limited to income from concessions sales, should Lessee opt to act
90 as principal in the sales of concessions or lease or rental income
91 should Lessee choose to contract out the sale of concessions;
92 subleases and assignments allowable herein); or from any other
93 business conducted by Lessee at the .Premises., excluding all amounts
94 received by Lessee which represent entry fees paid by sport teams
95 and/or individuals to enter leagues or tournaments and all federal,
96 state or local .sales, use, or excise taxes; any non-cash sale that is
97 written off as bad debt; customary charges of recognized credit card
98 companies for credit card sales; ~ service charges, carrying charges,
99 interest charges and penalties for time payment accounts and charge
100 accounts; any refunds, credits, or allowances to customers; or any
101 income received by entities with whom or which Lessee chooses to
102 contract to provide. concession. sales service on the Premises. The
103 occasional sale of fixtures and equipment by Lessee following their
104 substantial use in the conduct of Lessee's business or operations upon
105 the Premises shall also be excluded from the term "Gross Revenues."
106 With respect to the sale of concessions, Lessee shall not contract with
107 any entity or individual which is a principal parent or subsidiary
108 company of Lessee or is otherwise affiliated with Lessee with. respect
109 to the sale of concessions.
110
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.
1.14 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 "
1"22 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
" 1.38 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
15o 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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159 operation of the facilities is substantially outside the norm of that
160 found in similar. operations in neighboring communities, the Lessor
16i shall have, in addition to any and all remedies herein provided, or
162 provided under California law, the right, at its option, to collect not
163 only the rent provided. for herein, but additional rent in an amount
164 equal to Imputed Percentage Rent. "Imputed Percentage Rent: shall
165 be determined as follows:. First; Lessor shall determine the Gross
.166 Revenues actually earned by Lessee for the last six (6) month period
1.67 during which Lessee continuously operated the Premises. Second,
168 Lessor shall multiply the amount of Gross Revenues for this period by
169 applicable percentage set forth in Section 3, above (i.e., 2%, 6% or
170 10%, as the case .may be) and the product so obtained shall be divided
171 by the number 180. Said quotient shall be herein called "Daily
172 ,Imputed Rent". For purposes of this. Lease, Imputed Percentage Rent
173 shall be the product obtained by multiplying Daily Imputed Rent by
174 .the number of days Lessee has failed to operate the Premises in the
175 manner required by this Lease.. Imputed Percentage Rent, at Lessor's
176 election, shall be deemed to be in lieu. of any rent that might have
1,77 been earned during such period of the .Lessee's failure to conduct
178 Lessee's business aS herein provided.
179
180 In addition,. Lessee and Lessor shall share equally the costs of
181 arbitration provided, however, if the arbitrator determines that Lessee
182 has violated the terms of this section, Lessee shall pay all costs of
183 arbitration, .and shall have a period of forty-five (45) days in which to
184 address and remedy any and all aspects of its operation which fall
185 outside the community .norm. If all applicable remedies are not made
186 within the forty-f ve-day (45) period, Lessor shall, in addition to its
187 right to obtain "Inputted Percentage Rent", shall have the option of
188 terminating the Lease.
189
190 4. IIVIPROV'EIVIENTS.
191 (a) Improvements. Lessee shall construct the "Improvements," as
192 described on Exhibit. "C" (C-1: narnative; 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 (1$) 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.
206
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 riot 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 Complex. Lessee shall. have the exclusive right to use the
226 Premises to provide and operate on anon-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
23o 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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238 (i) Lessor to relinquish control of its current Softball leagues and
239 not run ary softball leagues of its own for the first 10 years of
24o this `Lease unless it becomes apparent that the growth of such
241 leagues has outgrown the .current. available facilities. An
242 exception to this: clause would be that League or activity that
243 targets a specific group of individuals or neighborhood that
244 ~ could not- be provided at the aforementioned Complex. Lessor
245 would discuss such activity or League with Complex personnel
246 before implementing said activity or League.
247 (ii) Lessor to designate a liaison from the Parks and Recreation
248 Dept. so that harmony and direction of programs can be carried
249 on to meet the needs of -the community. Said designee shall
250 have no authority to amend this Lease or to exercise
251 independently the City's various approval and consent rights in
252 this Lease.
253 (iii) With the exception of the first year of the Lease (as noted in
254 paragraph 9), Lessor will maintain, in a usable condition, the
255 Washington Street access to the facility. Lessee shall maintain,
-256 ~ in a usable condition, parking lots, fields and all other facilities
257 associated with its complex.
258 Lessor's maintenance obligations shall exclude costs caused by
259 the negligence or misconduct of Lessee or its. agents and
26o employees. Such. costs shall be the obligation of Lessee.
261 (iv) Petaluma .Teague fees are to remain competitive with
262 surrounding City programs. Petaluma leagues are defined as
263 teams compr-sed of 70% Petaluma. residents. The cities to be
264 used in the .setting of these fees shall be: San Rafael, .Santa
265 Rosa, and Rohnert .Park.. The formula to be used shall be the
266 average of the aforementioned. cities League fees, providing all
267 .amenities are equal, i.e. balls provided, two umpires, number of
268 ;games per season, etc.; plus a maximum often (10) percent.
269 (v) Lessee, while providing leagues for Petaluma residents, will
270. also provide various open leagues. Leagues for Petaluma
271 residents shall have priority use over outside leagues.
272 (vi) Lessor to allow the serving of alcoholic beverages on the
273 Premises in accordance with all City, State and Federal policies
274 and regulations.
275 (vii) Lessee. to provide two (2) fields for the free use by Petaluma
276 Girls Softball Association during their season from 4 pm-7:30
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277 PM each Monday through Thursday from approximately the
278 middle of March to the first of July and other times available
279 and negotiated with Complex Management. to allow for post-
280 season. play and/or tournaments.
2.81 (viii) Lessee to provide two (2) soccer fields for free use by the
282 Petaluma Youth. Soccer League during its season from 4:00 PM
283 ~ until 7:30 PNI each :Monday through Thursday from September
284 1 through November 30 and other times available and
285 negotiated with Complex Management to allow for post-season
286 plan. and/or tournaments.
287
288: 6. CAPITAL COS.'TS AND IMPROVEMENTS.. Lessor shall bear all costs
289: and expenses for the construction and maintenance of utility infrastructures
290 for potable water for .domestic consumption only, recycled water and sewer
291= up to the property line of the Premises. Lessor is responsible per item 6 of
292 the lease agreement "Capital Costs and Improvements" for extending
293 .potable water recycled water and sewer services to the project site. At the
294 Lessor's sole discretion, the Lessee shall either: (1) install the sewer, water
295 and recycled water services up to the property line of the project site at
296 Lessee's cost and enter into a reimbursement agreement with the Lessor; or
297 (2} the Lessor can go through the design consultant and general engineering
298 contractor hiring process. The Engineering Division of the Lessor shall be
299 contacted upon approval of the condition use permit application to discuss
300 this item. Lessee shall bear all other costs and expenses for the construction
301. and maintenance of, and additions., alterations, and repairs to the
302 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
304 keep Lessee's interest in the Premises free and clear of all liens.
305
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
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316 onsite irrigation system shall be subject to review and approval of the Water
317 Resources and Conservation, Department of the Lessor.
318
31,9 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 ResolutoriNo. 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 Mort~a~e. 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.
430
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
43.6 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
44.6 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 modif cation 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
46o 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 refuses. to execute any
466 such. amendment requested by such first Leasehold Mortgagee, Lessee
467 ~ maq; 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 deriver (i) any documents or instruments reasonably requested to
474 evidence, acknowledge and/or perfect the rights of the Leasehold
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 O this Lease is unmodified and in full
48o force and effect (or, if modified, state the nature of such modification
48.1 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, (iii) 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 thus 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
so3 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'tlie 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
52,1 transfer, then any such mortgage or deed of trust shall be considered a
522 Leasehold 1Vlortgage as contemplated in this Section 10.
523
524 (e) Leasehold 1VIort_ga~ce's Rights on Lessee's Default. Under Lease.
525 Upon a defaul 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 1Vlortgagee 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
55 L 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 (ii) In those instances in which a Leasehold Mortgagee is
556 prohibited by any process or injunction issued by any court or
5.57 by reason of any action by any court having jurisdiction of any
558 bankruptcy or insolvency proceeding involving Lessee or its
559 sublessees from commencing or prosecuting foreclosure or
560 other appropriate proceedings and the nature thereof, the time .
561 herein allowed Leasehold Mortgagee to prosecute such
562 foreclosure or other proceedings shall be extended .for the
563 period of such prohibition, not to exceed six (6) months.
564 In those instances described in Section 10(e) (i) and (ii) above,
565 the Leasehold Mortgagee shall, or shall cause Lessee to,
566 operate and .maintain the sports complex, and in the event the
567 Leasehold Mortgagee fails to do so, Lessor shall have the right
568 to operate and maintain the Sports Complex and in addition to
569 any remedies provided for herein shall be entitled to all profits.
57o If the Lessor operates the facility during this time, Lessor shall
571. have the right to recover from Lessee,, in .the manner prescribed
572 by law and subject to such notice and cure rights Lessee may be
573 entitled under California statutory law or this Lease, any net
574 shortfall or loss incurred. by Lessor in operating the Softball
575 Complex under this Section 10(e)(ii) in addition to all rent.
576 (iii) If insurance coverage is terminated during the expanded cure
577 period, all. operations of Lessee must close.
578
579 (f) Right of Leasehold Mort~a~ee to New Lease. In the event of the
580 termination of this Lease prior to the natural expiration of the Lease
581 Term due to default of Lessee or operation of law, Lessor shall mail
582 by registered or certified mail to all .Leasehold Mortgagees written
583 notice of such. termination, together with a statement of any and all
584 sums which would at that time be due under this Lease. then known to
585 Lessor. 'Such Leasehold Mortgagee having the snore senior priority
586. shall thereupon have the option to obtain a new lease in accordance
587 with and upon the following terms and conditions:
588 (i) Upon the written request of the Leasehold .Mortgagee within
589 sixty (60) days after service of the aforementioned notice of
. 590 termination, Lessor shall enter into a new .lease of the Premises
5.91 after this Lease has terminated, with such Leasehold
592 Mortgagee, or its designee, as provided in Section 10(f) (ii)
593 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
61 o 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
62o 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 aevied 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 iristallrnents 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 proyisiors 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 (1.0) 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 thereo£ 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 paft 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
703 Lessor shall cooperate reasonably in any such contest permitted by
704 this S;eotion 15, and shall execute any documents orpleadings
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 ;limited. to, reasonable attorneys' fees and expenses, which may
7] ] 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
71.8 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 acid the. complex manager of the Premises.
723
724 (b) Comdex 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 pleasng°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 ascribed. to 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
75o 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, Lessor. 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.
769
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
78o 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,
Zo
it - 11
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
80o 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,
81o 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 T7 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
s21 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
83o 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
2i
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.
842
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
s60 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
I, ~ ~
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 (i) 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
9'14 Lessee's business; (iv) the value, if any, off 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 (iii) Any award remaining after (i) and (ii), shall be paid to Lessor.
918
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. Iri 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
93'8 .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)(i) and (i~i) above shall be
948 pror--aced based upon the portion of the Premises taken: With respect
_ 949 to any -award of .severance or "cost to cure" damages, said award shall
95o 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 termiriated 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 the •provisions 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
1001 24. , ASSIGNMENT AND SUB`LETTIIVG. 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
10.10 has the right to consider credit worthiness (including net worth) and/or
1:011 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
101.9 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' 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 making 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
1:072 (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 anon-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 riotice 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 ariy 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
1.099 ~ 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
1101 of the, Lease-after the time of award exceeds the amount of such rental
1102 loss that. Lessee proves could be reasonably avoided; or (ii) continue
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 descr-ibed in California Civil Code Section 1951.4 (i.e., Lessor may
1107 continue Lease in effect after Lessee's breach and abandonment and
1108 recover rent as it becomes due, if Lessee has right to sublet or assign,
1109 subject to reasonable limitations).
1110
28
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
1.122 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
11.25 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
113.5 building, structures or other improvements or make any modifications
11.36 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 hateforty-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
30
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
1..198 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
12.16 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. Tt 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 195 L2 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
124.1 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.
1248
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.
12ss
1256 (c) Inte agr 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
-1271 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
1:280 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
o. ,
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
1-309 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 L24 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 29(j) 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 29(j).
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 _refusng to furnish such person any
1335 accomrriodation, 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 uet En'o ent. 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 Lmprovement,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,
1:386 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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OR OM155lONS ON THiS EX}181T ~ ~ p. , E?
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1 ° _ 1000 Ff.'
C O N i U L T I N Q C I V L L ENGINEER 5
OAi£•. '.MARQ1 ~ ipse~. - - THQMAS• R. JONES R'CE 30.1.`Z9~ ia+ ~~?a Qvo.ea ro:.~' u+rr~ iaaau nao: 7si/sT~-~.
_ e~. _
- _ - - •AB N0.19e.
,
EXHIBIT ``B"
LEGAL .DESCRIPTION
OF
LEASEID PREMISES
NrF.`=r~ 1'~y_ 1rr~rC ~_;T'r' CiF F'ETHLLIh1H =~a~1~' F~ i_,
- .
` EXHIBIT C
BF:L-L'FTE'LD PP:RCF.L S"OUTH
P.LL THAT Rr:~.L PROPERTY SzTUATE.D. IN THE COUNTY OF. SON'OMA, STr"iTE (7F
CALIFORNTP., BEYNG A PORTIQN QF -THE LENDS OF GLEIJ A. CP.A2~'lEFt, AS
DES.CP,IBED $Y T~H.AT bEED P,ECORDED IN BOOK 2485, AT P?~GE 285,
OFFICIAL RECORDS 'OF SOFJOMA COUNTY,. DESCFI&ED AS FOLLOWS
3EG'INiJING QN THE NORTHWESTERLY LINE OF SAID LAND5 OF CRAMER, FROM
WHICH THE NORTHERLY .CORNER COMMOPd Ta ~GRRM~R PARCEL "B~-1" .P,ND
GR_AMER PARCEL "B'' ~ SHOWN ON THAT r~ECORD OF 5URVE'Y FILED IN BOOK
3?7 AT PAGES 21 & 22,. ~`S'ONOt~, COUNTY RECORDS BEARS
50UTh 35°2D.' S5" j~7EST .822..;.15 FEET, THENCE, LEAVING SAID
NORTH6vESTERLY :LINE; SOU°T°H 16°36' 16'~ EAST 292.05 FEET; THENCE
SOUTH 60°0`17" EAST. 611.99 FEET,; THENCE SOUTH 38°T~'23" EAST
500.00 FEET;.. THENCE SGUTl~ 63°46'08" EAST 582,05 FEET; THENCE.
SOUTH 76°22'31" EAST 259.26 FEET TO THE SOUTHEASTERLY LINE~OF
SP_ID LP.NDS ?OF CRP-MER; THENCE, ALONG SAID SOUTHEASTERLY LINE;
NORTH 35°25':39" EAST 406.'6.5 FEET~TO THE MOST EASTERLY CORNER. OF
SAI~D~ L.A.NDS; THETJCE; ALONG THE NORTHEA:S TERT~:Y .LINE OF SAID LANDS ,
NORTH 59°33'00" WEST 21:49.32 FEET TO' THE ?~l05T NORTHERLY CORNER ,
CF SAID L~.TTDS.r P~L,S.O HELNG.~THE 50UTHEAST,ERLY LIhTE. OF WASHINGTON
STREET; THE?9CE., ?Li.,ONG SASD SOUTHEP.STER,LY LINE;
SOUTH 35°20'55"WEST 340.00 r~ET TO THE POINT OF 3EGINNING.
CONTAINING 29.88 RCRE,S ?MORE OR LESS.
PREPP:RED ~Y_.:....,..__BRF_L.JE :~..:._~0-E__C.C.N.SUL~TII'dG`-C:I>~.~L-:.EN~G-I2~FEE-R,.... -
APN: ls~-0`JO-019 DATE: 1-10-96
JO`B:: ~ 19 b 7 e~
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of ~ , . _
.EXHIBIT "C"
IMPROVEMENTS
_ C- l : NAr~ATIVE
C-2: SITE PLAN
C-3: ~ CONDITIONS OF APP-ROYAL
,
` EXHIBIT ~":C-1''
NaxxATrvE
-
This project is a sports complex consisting of six lighted.softball fields for day and night
games, 4 sand volleyball courts, 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. atwo-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
~%ashington Street. The land' is owned by the City of Petaluma but the sports. facility will
be privately constructed; maintained, and operated under lease to the City.
The sportsplex will be open yeax 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.rn.. to
11:00 PM The softball fields will accommodate'both adult and' youth league games. The
site will have one.p~ont 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, wit11 one-third anticipated 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 Ciiy of Petaluma. The City will generate income over the years of
the project and the applicant wil ~ nui al'l' 'adult softball aeague"s in the City, under
conditions specified by.the City Additionally, the project will provide playing fields for
the Petaluma Youth Soccer Associa"tion and the Petaluma Girls Softball Program, thus
helping the City by alleviating demand. on existing playing fields.
SE`fT9NG
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 limitdine 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 IVlunicipal 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
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j ~ ~ 2530 1^lASI111~IGT0FI FEfs~Llh<IA, GA
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EXHIBIT ```C-3"
CONDITIONS OF APPROVAL
(THESE ARE DRAFT CONDITIONS OF•APPROVAL.
THE -FINAL CONDITIONS OF APPROVAL WILL BE
EXHIBIT "C-3"~ WHEN THE APPROVAL OF THE
COND'ITIONS BECOMES FINAL)
. ~ '
These .Conditions=of
Approval are DRAFT
- and subject to change; pendingtlze Planning Corrimissioi:'s`appcoval of the Conditional Use Per`nit.
1
2
_ .
3 ~ ` CONDITIONS'~OF APPROVAL
4
5 (Note: New text is in italics and removedaext is struck over.)
6
7 From the Plann'in~ Department
8
9 1. ~ Approval of a Conditional Use Permit is granted fo allow construction of a sports
to 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, ghted scoreboards, picnic area,
13 parking facilities, .and atwo-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 cornplianee to those stated in the
16 Applicant's ProjectStatement revised February 13, 2001. Any significant change in the.
17 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-
2o for the Redwood. Empire Sportsplex projecf 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 approvaUmti_gafion 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. Prior to 'issuance of a building ;permit, the illumination study and photometric report shall
35 be revised to meet the City ofPetaluma Zoning Ordinance Performance Standard Section
36 22-3:04.2. This performance standard requires that indirect. glare shall not exceed that
37 value. which is produced by an illumination ofthe reflecting .surface not to exceed, .3-foot
38 candles (rnaxmuni) and..l-foot candle (average). Indirect glare is defined for the
39 purpose of this ordinance as. illumination visible at the lot line of the establishment
. 4o caused by, diffuse reflection,from a surface such as a wall or- roof of a`structure.
41
. 42 6. All- construction acti~ifies shall comply with the Uniform Building Code regulations for
43 seismic. safety (i.e., reinforcing perimeter and/or load bearing walls, bracing parapets;
44 etG.).
45
46 7. All ,construction and operation activities shall comply with applicable Performance
47 Standards in the Petaluma Zoning Ordinance and Municipal Code.
Page 1
These "Conditions of,Approvahare.DRAF'T
and subject to change, pending the.Plann'ing Commission's=approval of the Conditional Use Permit:
1 -
2 All construction equipment"'po_.wered by:intemal 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 fo residenhal areas to the maximum extent practicable. Stationary
8 construction equipment, such as compressors, mixers; etc., shall be p'laced_ away from
9 residential areas and/or provided with acoustical shielding. Quiet construction equipment
to 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
i4 ~ 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 acti"on fo 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 Revew~Conunittee prior to issuance ofbuilding permits.
21
22 12. The applicant shall be responsible for the payment ofthe City's Traffic Mitigation Fees.
. 23 Traffic 1Vlitigafon.Fees shall be, calculated at the time gf ssuance'gf 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 cornpletiori 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: Should!any artifacts, cultural remains, or potential.resources be encountered during
44 construction activities, work in the area of the firid 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
These. Conditions ofApproval'are DRAFT
and subject^to change,: pending=the.Planning Commisson`'s approval of the Conditional Use Permit.
1 all by-products' of liurnan 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 qual"feed cultural resource specialist to
4 evaluate the find. If the suspected remains are .determined to bepotentially ,significant,
5 all work in ahe vicintyshall 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 ~mtgatign
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 and' with implementation of mitigation measures.
11
12 18. The applicant shall. be required ao obtain' all:rcqui'red 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 improvement plans'.
15
16 19. The applicant shalh;riotify ;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 compliance"with such measures acid 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 andsgned bythe contractor:responsible for construction.
. 23 -
24 21. Withiri -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 erriplogees 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 ahe City from. participating in a defense of any .claim, action, or proceeding
36 if the Ctytiears 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
4o all of the requirements of the City of Petaluma's Landscape Water Efficiency Standards.
41
42 22b The gperator of the facility will be required to irrigate the fields at night when demand for
43 water is~low.
44
Page 3
' These Conditions of Appeoval,aze,DRAFT
and subject to change,.pending, the Planni~Tg Commissoai~'s'approval of the Conditional Use Permit.
1
2 From the Bicycle Advisory Committee:
3
4 23. In accordance with the Bicycle Plan .and the Petaluma 'Municipal Code, -the applicant
5 shall provide the following bicycle/pedestrian facilities shown in the table below.
6
BICI'CLE/PEDESTRIAN FACII.ITY MINIIVIUIVI,NUIVIBER REQUIl2EDBY
BIKE'PLAN
Covered Bic cle Parkin 5 aces 67
Interior Bicycle Parking S aces 8
Clothes!'Lockers 10
Showers 2
Picnic.Benehes 19-adjacent.to the club house and the
concession stands
Drinkin Fountains 6 (one at each field)
7 -
8
9
l0 24. The, applicant shall. install a -Class II bike lane as part of the East Washington Street
11 frontage improvements, per. City of Petaluma standards. '
12
13 25. The development shall. have on=site facilities 'for food storage; preparation and eating
14 .accessible to all employees. .
15
16 26, Thee developer shall provide appropriate curb cuts throughout the development to provide
17 for bicycle access.
1.8
19 27. Under no circumstances should. any pesticide/herbicide be .applied in areas used by
20 pedestrians bicyclists anywhere 'in this project or the ~~surrounding area without appropriate.
21 signage.
22
23 28. This project shall utilize Best Management Practices.regardng pesticde/herbicide use .and
24 fully commit to Integrated Pest Management techniques for the protection of bicyclists and
25 pedestrians.
26 ~ ~ -
27 29. The owriernessee shall provide, a simple one=page document to the City nanung a
28 designated "transportation coordinator" and describing specific. incentives for employees
29 and customers to walk bicycle to the facility thereby encouraging. alternatives to driving
30 cars to this facility.. Examples `include lending bicycles for short errands, monetary or other
31 rewards 'for not driving, etc. The City prior to issuance of the Certificate of Occupancy
32 shall receive this documentation.
33
.Page 4
These Conditions,of Approval are.DRAPT
.and subject to change,"pendcng the Plann~ng•,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 imgation purposes until reclaimed waste
7 ~ water is available. A well draw down test per ~ Sonoma. County standards shall , be
8 performed to .determine i-mpacts 'on adjacent wells. The applicant is responsible "for
9 :.mitigating, all impacts to affected properties per the attached mitigation and monitoring
1o 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
21
22
23 .
24 32. Once recjcled water is avvaildble 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 ~So~zoma County standards. The ortsite irrigation system should be
27 designed to meet future wastewater. system. Yequirem"e~zts a~zd shall.be subject to review .
28 and approval of
the Water Resources and Conservatio~z,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.
3"4 - .
35 34. The project shall comply with all federal, state ..and local storm. -water quality
36 requirements. A notice of"in#ent (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 management practices (BMP's) are.~~g~~~-~"ate?-YequYed per the City of
4o 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
These Conditions ojApproval~dre-DRAFT
and subject to change, peg:ding, the.Planneng Commission's approval of the Conditional Use Permit.
1 37. An encrgachment penn'it is required. for 'the portion: `of~ proposed storm drain system
2 located within the public right of way.
3
4
5
6 Frontage Improvements:
7 .
8 38. Frontage improvements along the project parceLfrontage shall be required. Improvements
9 shall consist of but. not be limited to, half street reconstruction, roadside drainage
10 improvements, bike lane, separated'pedestran .access; landscaping/irrigation, streetlights,
11 East Washington Street re-channelization/striping, etc.
12
13 39. Re-channelizaton of East Washington Street within and outside of the limits of the
i4 project frontage'is required. Improvements shall consist of but not be limited to, left turn
15 lane in and left turn acceleration-out taper, right turn out acceleration taper .and right turn
16 in deceleration lane, 12-foot through travel lane(s),: transition lanes and a 6-foot wide bike.
17 lane. All striping/cliannelzation shall be subject to the approval of the City of.Petaluma.
18 It is recommended that the applicant's engineer contact the Engineering Division prior to
19 preparation of.any formal striping/channelization plans to discuss horizontal alignment.
20
21 40. The protect shall .comply with all requirements from the City of Petaluma Engineering
22 Department "Traffic `Impact Analysis CottonwoodBall Park/RESA" dated Nlareh, 1992.
23 ~ '
24 41. Prgject striping/alignment shall be consistent: with the' existing "Science. of the Soul's".
25 project located across E. Washington in the County of Sonoma.
26
27 Miscellaneous:
28
29 42. The applicant .shall. submit off-`site improvement,. plans- for all off-site construction, work
30 as a separate plan :set to 'the Engineering Division for review and approval. All
31 improvements shall be installed, aiid accepted by the City prior to issuance of a certificate
32 of occupancy. An improvement agreement, ;perfornlance and payment bonds as well as
33 ,general, liability and worker's compensation insurance certificates are required prior to
34; commencement of construction.
35
36 43. All.. existiiib .overhead' utilities located' within the project parcel frontage shall be placed
37 underground.
38
39 44. A Geotechtlcal Investigation Report for the projectahall be submitted to the Engineering
40 Division.
41
42 45. The minimum asphalt thickness for an arterial street is six inches.
43
44 46: The applicant shall address on-site water and sewer services at the building permit
45 application stage.
46
Page 6
.These Oonditions.ofApproval are_DRAFT
and subject to change, petzding'the PIaHKing Commissioiz's°approval of the ConditionaC UsePermit.
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 ;tlie Fire Marshal's office. Provide fire. flow caleulations,to the Engineering
8 Division.
9
l0 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'. 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 ocal alarm shall.
20 be provided on the exterior and interior ofthe building.
21
22 52. Contractors. hall submit. to the -Fire Marshal's office evidence that the required fire flow
23 of gems 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 25:00 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 steal 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, pendcng the Planning Coinmtssion's approval of the Conditional -Use Permit.
1 "From the Police Department:
2
3 50. The complex shall have private security during large tournaments/events.
5 S:1PC-Planning Commission~Reports~RESA 2530 E. Washingtion REVISED CON OF APPRV JiJLY 24..DOC
Page 8
EXHIBIT "I~"
CITY OF PETALUMA RESOLUTION NO. '91-16 N. C. S .
~ i ~ .
E~~SC)l"l.ltiC)'rl 1!!.~ y'1!-16.: N.~.~~ °rr.,
~
' of tlic• Cia;y cif 1'c~ ~~furnrr,. C~~~1i`t'~rr~ic~
i
~ ~ ' r 3, A RESOLUTIgN ~9TABLISHING POLICIES .FOR EYTS~~sION
• ~ ' `OF tdATBR SE,RUICB FOR USB OUT9ID8 OF THS CQRPORA'PE
3 LIMITS OF 'I'HS CITY OF PETALUMA AND REPEp?LING
• ~.t
4 ~ ,REgOLUfiI_~N N0. 69-'67 N.C.S.
5
. 6 '
7 R.S~?B, the City of. Pe-taluma is willin.g,, under .certain
- 8 circumstances, to provide water service to lands curl-ently
'9 outside of the .corporate limits of the City 'but within its
10 8pherc of Inf uence. In addition, other lmtec9 service may .
.11 be gravid®d a`t the discretion of the City Council where
12 contaa~inati~on or. euhau_st-ion of groundwater supplies
r.;
13 immediately threatens health .:and welfare in areas outside of
.
14~ the _City's Spher.® of Influence.
15 _ _ _ IF. _r
I
,.16," ~ - iii Y~y offjerng such apportuniti®s i.t rsmains the
_ i
17 ..City's policy ~o: '1) oppos® urban development in - '
I ~ ~ `,.I _ ~ and'
1~8
j - ~ unincorporated ar.i~acdl~ur;almTandsem~tuo~~errt~a.t~er~~erv .
v ` -19development of ag~i, . , , ) ice : as
;
~
e ~®ans of .'.meetng~.i~ediate human;-health; peeds, .rathQr ;thin
2 p, ,
21 provl~in~.g a aonvmnienc.® for futur® par.celization o£
I, .I
22 . .development° out~s,ide of the' corporate l mite; and,
Z 3 _
~ ' , ,certain areas ,have been identified as, urban ,service
25 areas on the City'~s~`adopte,d, Epher® off, Inaflu'ence, ,wherein the
' ; ,26 provie.on.of water. ervica for leas th;~n urban densities is
27 eurrently provided or wtill~likely be provided., which ara not '
z.g planned as potential anr?exation areas . `
29 r
g0 ~0±6~, ~RSFUR~ BS YT• RESOLVED Tf~AT;
31
32 I, Applicat ons for,outs.ide water service shall be
` 33 consid®r,ed.and-may be approved only when the fallowing
.
' ~q ~circumgtances ~®xist:
,
A. FOFt AREAS. FIIZ°HIN °I`fiL ADAPTED. SPH&RE OF INFLUENCE
35
36 1. The water is to be~ used:: a) for
37 dwellings in exis~Cene6 on Decemver
38 5, 1983 (the date of~adoption of the
9l -1Ei
I ,
~
. - . ~r,
~ ' ta`,
it
ty
~ - I ~ ~ '
i~•
-:l
1 ~ ~ -
2 first comprehensive water policy b}
3 for one principal dwelling and up to
~ one accessory "granny".units approvQd
A
5 ~ for construe-t.ion on parcels created
6 prior to D®cemb®r 5, 198 (tie date of
7 adoption of the first comp:rehensive '
8 water :policy) or c') for .lots created
9 for residential development which meote
10 all City Dev®lopmen"t revero~ standards r.
11 ~an~ do not exceed: a density of .one (1)
12 dwelling unit per two.(2') acres. or d)
1 ~
13 for =non-residential. uses only upon the.
ig approval of the City Counc'l,.. ~
_ J,
16 - - ~ , ~
• _
_ arvice' i~ to
2 The water ma n rom .w c s
17.
- . n,.
16 be ~er`iwed pis in place _'acro~ `"the .full
~ ~ r p
19 ~ frQntag® of - th® parce'1(s) rec~ue tinQ
20 service o:r is, if deemed:nece~sary by ~ rr
21 th® City` ~n~ln~er, e~ctended' 'across the
,;r
22 full frontage of said parc'c~l , ~
23 constr..ucted to standards tacce;ptable to
24 the City of P®talunaa ,and" dedicated to the
2g City for public use.' ~ •
26
2 7 - ~
28 ~ . FO;R A.RB1~8 OUT3IDS OI" THE F?DOP'T~D '~PHSRS fJF ~
2 9 Y~IpLU~~CS
~ ~ ~ ~ ~ ~ ~ ~ ~ ~ kI
ik
Eu
Reso. 91-16 N.C.S.
_
- ~
~
- _ X11I';
,f
• _ ~ ~ ~ ~ ~ ~~~f
-
,
2 1. Nesd is flemonBtrated by avid®nce that:
3 a) Thy sxist~ing wet®rsupply ~s ,,`'~f.
4 cantaminatecl. The dater Mill b~ ds~mefl
. _
5 contam~nat~fl if' ~:t contai.ns 'any
~ constituent in.a,.concentration
~°s'. .
7 exceeding currant .maxiBium contaminant
8 level~(m.c.1 ) fnr drlnhng mater a~
9 es,t~abl'ishefl $y the State ..of California,
10 ~ Department. of Health,gervices
11 r Mw
(9,.C. D.H. S.) . Tl'ie v~ater conta~ainated ~ ~ a
12 shall bs dearly flo~umsnted y•~
i i; -
.~t
13 by .a 1®tter from. tPia;'sonoma County
14 Department ~~f .~He`al~h: Th® letter and a
~
15 - - copy of ~ a recent_ wat'~r analyse - repot t "
16 - , psr,f4rmefl by_~ ~.C.Da:H.,B.;~approv®d lab , ~~r`
.
17 shell ~e_ eubmittafl along e~i.tl~ any ~ J
. ~ ,
18 ` ~ _a~p~pli~cation cle wing-~k~is, need.:
19 Zf deemed appropriate, th®.appLcant may
20 ~ oleo berequired' to provide evidunce tYat
21 the. con.tamination eannot b~ reduced be~la~r ~
22 ,m.c,.:1. concentration`s b.y.the installation
23 of a .water tr®atment ~3yst®m.
24 ~ .
25 ~ b) Thy existing mat®r ~~supply is eschaust~d-. ,
26 7'he: water supply ,will be `deemed. axhauated
27 ~ if the ..water production capacit~? of the
28 supply .is leas than required by the
Y . ~
29 Sanoma Count Public Health Depa,rt~nent
30 far a single family, resident al
31 dwelling. The-current capacity o£ the ~ '
32 existing water eystea~ and th®
33 availability of wet®r in the area
3'4 shall be clearly ~ocumentad ~by a
35 lettex from the gonoma County p~lic
36 Health Department along with a copy .
Reso. 91-18 N.C.3.
•
1 ~
2 of'a recenacapaety test signed by a
3 ~ registered civil engin®er, or a..
licen~~d drilling or pump.contraetor.
5 This letter and.~~st documentation
~ shall besubmitted. along kith any ~ ;
~ application cl~ia~ng this need. If
g d®em~d appropriate, the applicant may
g also be requir®d to provide-evidenc®
lp thet a r~asonab ®effart has b~8n tt~ade ,4;
h, .AE
11 to: increase th® e~at~r supply.
12 ~F
13 •2•. t3ervc~ 'stay b® provided to dx~llings or _
14 non-r®sidentlal lartd'• uses in existence on °i,
15 - _Dece~ber 'S, 1989, (~„Tie date .of the adoption
•
16 _ of the first' cor~preben~ave v~ati®r policy) or '
-
17• ~ for d~:ellinga for ~hiCh~buildng,permit~ .
_ .
i S - ha~® ~be~_en ~ i®"gued pr or to ~,D`®c®~ber . 5 , 19.83 ,
1g ~ or`for~non-residential ue~s but only upon
- _
2p th® approval of the<City ~oUncil:
21
2,2 3. ~'h® water main fro®'oah"ch service is to be
•S
23 deriv®d. is in place across the full
2~ frontag® of .the parcal(s,).•reque~ting service
25 or e,. if'~ deem®d nec:assary by th® City ~ .
2'6 Sngine'~r,~extended across the full frontage
27 ~ of said parcel (s) , constrlrctQd to standards @'
2g acceptable to th®~ City of Petaluma a:nd
29 dedicetad to th® City for public use.
3Q
31 II. FOnplicetons for out~d~.w~t~er service. with in the
g2 Sphere of.xmflu'enc® shall be reviewed and
33 conditionally approved or~deni~d by the City Engineer
34 and th® Director of Community D®velopment and Planning
35 in accord Both th® policies and coad~.tions h®rein set
36 forth.
1 ~
2 III. For areas outside the 3pher® o"f Influence where. -
3 a clear residential health."hazard'.exi`ets, requ®s'tB ~ k.
4 shall be reviewed on a case-~y-c"a®s.bagig by .the city
5 Council . i
6
7 IV. Every outside vat®x gervic~d approval shill be subject
B to the folloa+inq conditions and arty: other conditions '
9 the City Engns~r and Dix®ctor of Gomna~nity bevelopment
10 and Manning ~lae~ nQCesgaxy to protect and promote the
.1 iataraasta, of tY~a City o!~ Petaluma aaid conditions shaall
12 idiplement.ed or cotopls~i with by th® Cpl'cant, t:o the 4
13 satiafacti:on of City o~taff prior to installation of the
r
14 water mster.~ ~ ~ -
g
15 ~ _
16 1. For propert®~~ within the ~pher® of Ynflu~ncs, -
17 anns~aaion ~~~ct_ -f®~®, a~ _ ~stablish~d Eby' th® .
18 _ City Counc l shall bti~~pad prfor~-to th® ~ ~
ig' 4nhtallatiq°~. off, th® v~ater met®r end wh@re it ;ie
20 ' d~e~ed' by t~~te' City °Engirsesr anc~~;~~ths .Community - ~
- -
21 Devslopm~sr~c and -Planning Dirsctor;~ tihat
22 imm®c9iat~, annexation is f®nsib'1:~,~ anns~c-anon 3
23 ~ shall .berlom®a condition .af approval . ~ °a
2 S . - - r4`
S
25 2. Any ®x4cen~ion of an appravsd outsicY® :water .r
26 ~ervir;e for use not specifically apprbve~ b~
27 the c'1ty, e.~.~, a second datolling, shall be
caua,ce~ far the dietcantinuanc~, of aerviae. The R~
28 ;
lg watrYr is far resident•i.al purpo~e~B unless otherwise
g0 spr.~cifically approved by th® City Council.
31 ~
32 3: '!Outside" rate to bs ®stablehad by city Council F
33 resolution, o~hich r®flects tire' current rate for
3~ ~~t'er~d, wet®'r service ~?s p®r Petaluma 'Fturii.cipal ~
3y Cod® and an additional fe® for service out~i.de
36 Ci.t,y `l ~?its .
Y
Rosa. 91-1~ I~i.C.S.
_
.
_ ~ ~ ~ ,
• -
1 6
2 4. An agreement shall be executed between the
3 property owner and the City, to run with the '
4 land, which. commits present and future property
5 owners. to ~che construction of, or payment for ~
6 frontage improvements (i.e,, one-half street,
7 curb, gutter, sidewalk, water lines for domestic
e use and. fire protection, sewer and storm drainage
..A~~:..
9 facilities•to City Standards)", at. the option of
10 the City at such time as the property is ~
11 subdiv~,ded, annexed or abutting properties
12 ~ construct emi`lar improvements. Dedication of
13 right-of-way for ,public attests or easements
14 for utilities may be required.
'y
15 ~
16 5. water service requested for lands lying;w"ithin ~ '
1.7 - she sphere of Ynfluence proposed for subdivision
iB ,must sa`eet City Development stand_ard's and have - - f-:
19 direct axauttinq, a~cees to an improved ~publlc -
20" Street 'd®s'~Qn~d,~.to ai~et. City :Standards..
_ _
21 - -
22 r;. Piaximum size service shall be limited to 3/4 inch
23 service unlee"s otherwise specifically approv®d by
24 the City Council.
r
25
26 W. R'~salution 9975 N.C.B. r®garding water extension goo ic.y
27 to property.ouaside the corporate limit of the City is e
2® hereby repealed in its a~ntirety.
.
n'
_ ~
:k'
Reso. 91-16 N.C.S. '~t
,
1
2 ~ ~ ~
3 BE I'1C FURTH)3R R~SOLV$D that until/unless the vaster mains are
4 upgraded to the City,',B satisfaction, no further hook-ups
5 shall be permitted in the area west'erl.y of Bantam 4~ay
.
6 con's sting of properties in the vicinity of ~destern Avenue,
7 Chileno Valley Road, Bprinq Hill Road, Cleveland Lane and
8 Chapman Lane; and, -
9
10 That Resolution 89-bZ N.C.B. is hereby resealed. -
11
"1 _ q,.
13 ssreso2
ry
4.
,yI
~4
r ~
Under the power and authority,conferrea, upon thiA.
Co~cll by_the Charter of anld City.
I KE'F: E•:IZF:NCE: I hereby oerti!}i the foresoing R.epo)ut}on wne Introduced .rind adortod by the ApP foe
n ~4 to
~ Couricil oI the City of Petrtlumn at ®{Itogul$r.) ~ meeting / > 1
........,1HIYWlr 19..91., by the -
• on the ..22II(~ day o! - '
fol}owtng vote:
City A orncy
AYES: Held, UaviS, Sobel, NeIsr~n, Vice hleyor Cavanagh, Mayor liilligoss r
NOES: ~ ~
AB.9ENT: tF' olse ~
. .
< - h'{eyor
ity ark
Oula+~l F'llru~
Nr~ Na A 1.' 1 b.... N:C.ti
C~A III~N3 ~ .
_
.
~ ~
;r
EXHIBIT "E9,
STANDARDs
. ,
EXHIBIT .IV
GENERAL MAINTENANCE AND CONDITION QF THE FIELD
MI'NIlYIU1VI SAFETY STA~NDAR1?S
1. The dimensions. ofthe 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 wrting'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 proper distance 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'protrudng hazards or sharp edges.
6. Inspect stands bleachers for structural soundness and safety.
7. Be sure warning tracks-ase 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,.fencegosts and trees that-are near the field of pYay should be properly
cushioned or protected acid always be declared as "out of play" areas. Ali "out ofplay"
areas should,. ideally, be cushioned or fenced. off 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.
Brealeaway bases. have been proven safer in minimizing sliding injuries arid 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 exclusi~.ely by properly trained umpires who are currently
registered with the agreed upon governing body.
JClmyTiles/jim:Exhibit N:Gen Maintehance:and Condition of'the Field
PRE-GAME INS PEG,TION
MIN.IIVI~UM SAFETI' STANDARDS
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 installedand-'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 orwarm-up areas.
10. .Require that proper safety equipment, e,g,, batting helmets, warm-up bats, catcher's
. protective: gear is used as prescribed bythe official ASA Guide & Playing Rules.
11. In rainy or.msty'weather, the top of bases; .home plate and the pitcher's rubber can
become very slippery. Proper.precautons 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.
Jc/myhiesljim:minimum safety standards
-
EXHIBIT "F'''
SUBORDINATION AGREEMENT
•
„
• SUBORDINATION AGREEMENT
' THIS SUBORDINATION AGREEMENT (the "Subordination Agreement") is made and
entered into this day of 200.1.., 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 ri Exhibit A attached hereto and incorporated herein .(the "Subject
Property").
B. Lessee. anticipafed 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 feeatle°interest in the Subject Property.
G 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.
Pennanenf • Loan must agree. that the Permanent Loan be secured. by a deed -of trust against
Lessee's' Teasehold 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 inplace.
1
t ~ ~ -
ACCORDINGZ.Y,'the parties hereto av=er as.roliows
R E' E M' F' N' 'i'
1. ~UBORD`iN~ATTON T`O MNSTRTTrTION LOAN: Provid°d that Lessee is .not
when in default under the Lase; then u on -
p ~y C30) `calendar days' written notice to Lessor and
Lessor's counsel enclosing true and correct COpies ~ of the Construction Loan Documents (2S
hereinafter defned), Lessor shall execute and ierord a ,single subordination agreement
(hereinafter the "Construction I.enaer's Subordination Agteement") in such form as may be
satisfactory to Lessor and. Lessor's counsel (as. ~herenaftar de'nned) subordinating its fee title
owners}~p interest in `the ~_Suli'ect .Pro
J Pity to a 'Constructipn Deefl of Trust (as hereinafter
defined), provided that Beneficiary shall have no ob3igation to execute and record such
Construction Lender's Subordination .Agreement unless Lesser can nest comply with each: of the
.following .conditions set forth in Paragraphs 1.1 through 1.2Q, below, inclusive, at no cost. to ,
Lessor which conditions shall conclusively be deemed to :be for Lessor's sole benrrit and ran be
waived only by a subseQuent written instru.snent executed by Lessor, Lessee and Guarantors and.
supported by independent_ consideration:
1.1. The Construction.. ,Deed of Trust shaIl severe a Construction Loan to Lessee
from a responsible and solvent .California. bards, California savings and loan. association, national
insurance company or other sinii3.ar institutional lender acceptable to .Lessor (the "Construction.
Lender").
1.2 The Construction Loan shall ~be evidenced by a promissory note (the
Construction Promissory Nate"j, a Caiifarni? deed, of ~ (,fie "Construction Deed of Trusf")
and a~ Building pr Construction I:oan Agreement (the "CosLStruction Loan Agreement"), which.
documents and all other rar,~ntee5, security. a~eements, financing siat~ments; caIlateial
assignments and other documents and o
snstrum,.nts customar~.y rewired b}~ the ~ Con.~~tion
Lender are herein referred to collectively as the "Gonstrtiction Loan. Documents"~. ' ~sll of the
Construction Loan Documents' shall be in the standard; forms custosuarily usesi by the
Construction Lender in snaking construction loans for the construction of a project similar fo that
being developed, by Lessee on: the Subject Property. Lessor and Dar's counsel .shall approve
the Construction Loan 'Documents in advance. L~SOr and .:Lessor's :counsel agree to rP..spond
within a .reasonable time. `If Lessor and Lessor's `counsel do not. respond to Lesser within thirty
(30) days of submittal of all, Constnsction Loan Documents to Lessor and .Lessor's counsel, the
orm of the Constructron
Loan Documents shall be deemed approved but only to the e,-tent the
2
form of the Cor~tructon Loan Documents are note in coniiiet with any e~,-press provision ar
condition of this Subordination Agre~rnent.
1.3 The Construction Loan Documents .shall evidence a .loan by the
Construction bender to Lessee of a principal amount not, to exceed the lesser of one hundred
percent (100 io) of the costs of construction of all improvements on the Subject Property (subject
to the limitations of Paragraph.l.5, ~beiow). determined ~ of.the antcpated'aate .of completion of
,the work of improvement. by the CDI1StIt1C110n Linder and' approved in advance by Lessor in
' writing or One h~iiliion Seven Hunared Fifty Thousand Dollars (51,70,000.00). ,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 subor,Diriation .lierein described, an amount
' in cash equal to the difference, if any„ between .(i) 'the net amount of the Construction Loan and
(ii) the total sum of~ hard and soft costs of construction of all improvements. on the. Subject
Property as determined by the Corisizucton Lender and approved"by'Lessor in writing..
1.4 The ,Construction Loan Documents shall requite all sums of the principal
amount of the Construction Loan disbursed by the Construction Lender- to be utilized for actual
o.n-site ,construction Hof improvements to the Subject Property ,complying with applicable land use
approvals, and shall include a procedure.. for disbursement of such principal sum only, upon
su'ornis5on to the Construction, Lender of 'original, dated in~:oiees for worlti 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 fifteen. percent (1~ ro) of the, gross proceeds of the
Construction. Loan Wray be allocafed 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 Para~-aph 1.'8, below); interest; interest
reserve, Ioan origination fees and loan administration fe-,;s real or personal property taxes and
assessments; casualty and Iiabi:lity in~,,,-ance premiums; environmental. consultants' and
application fey-.s; and srni2ar "soft costs" incurred by Lessee in connection with the constniction
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.
3
1.6 The rind al amount of
- ,
P p the ~or~otion Loan wall by the terms of the
.
ons~ucuon Pronussory ;Note bear .interest, uut~ally at a note rate (exclusive. of .loan fees, eszow
. rate charges, penalties. and other fees wnich are alI to be .paid by ~ from its own fun
to e;,ceed twelve percent ~ (12 .pet annum. The. note ds) not
Construction .Loan pursuant to any formula or standard ~ maril ~ d~° the term of the
f
.Lender or similar loans but in no event rna ` ~e , y ued by the Construction
y rate af: interest exc°eci twelve percent
(I?
' I.7 No amount. shall be required. by the terms of the Construction Loan
Documents to be paid by Lessee to the Construction Lender prior to twelve I2 mon P
date of recordation- of the Construction L,ender's Deed of Trust and. the. )due ~ date of th.,
Construction :Loan shall be no more than twenty-four (~4) months after the date of sucb
recordation.
1. S In no evenf 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 Iimitadon on the soft costs
set forth in Paragraph `1.~, above. ~ '
I.9 The Construction Loan Documents shall provide an interest reserve in an
amount sufricient to .pay the total projected accrued interest :accruing tlu-ough 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
1.1`0 The Construction Promissory 1Vote 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 fe•.s, charges or penalties are not
substantially. m :excess of the amount of. such fe,.s, charges, or
made b institutional, lenders at the. time of fu a b assessed in similar Loans
y riding the Construction Loan.
1..11 The Construction Loan shall note ressl
theConstruction Lender as ' ~ .provide for personal recourse by
bauzst .Lessor andlor any assets of the Lessor .other than Lessor's
interest in the Subject :Property.
1.I2 If the Construction Lender should. require that. the. Construction Lender's
Subordination A.greerrlent be in ;the form .and substance of the `Construction Deed of Trust
Lessor
4
` .shall have no obligation to execute the Constzuctiori,Deed of Trust. unless (l) 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, how. ever,. that Lessor may waive certain statutory guarantors'
defenses if and only if- the defenses are absolutely necessary fbr the Construction Lender's ability
to enforce the Construction Deed, of Trust, the "waivers do :not violate any term of this
Subordination Agreement °and the;:waivers are approved by Lessor's counsel. Notwithstanding
anything stated in.the precediig,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, 28.45 and 'of California Code of Civil .
Procedure sections 580a, 5.80b 5$Od and 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
tale-out agreement to .make. a loan to refinance the .maximum sum of the Construction Loan .(the
"Take-Out Commitment"): The Talce=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 Talce-Out Commiment fee and any and all
other charges and costs incurred i.ri obtaining the Take-'Out Commitment. The Take-Out
Commitment must provide for a Permanent Loan in an grginal principal amount equal to or
greater than the maximum principal amount of the: Construction Loan. The Talce-Out
Commitment shall .also provide that the funding of the Permanent Loan is conditioned only upon.
the .completion of improvements 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 Permaierit Loan may be, secured by the Lessee's interest in the Lease. Lessee
hereby authorzes,:T?essor and its counsel to contact the lender malting the. Talce-Out Commitment
prior to the recordation of the Construction Loan for,purposes of verifying the terms of the Talte-
Out Coinmitrnent 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
5
creditworthiness Of the Conti-aetor. Lessor agrees to. respond to Lessee-within a reasonable time.
If Lessor does not res and within
P thirty (3Q.) days; of its receipt of both the Contra.~t and
competent financial informatiUn on the Connector, 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
eonr'Iict with any express provision or condition of this Subordination Agreement.
The Contract shall provide that ~ either I~ssor or an '
y receiver appointed by .a court of
.competent jurisdiction may at its election either assume or reject -the Contract upon. re=entry upon
or other taking possession of the Subject Property after any: default by Lessee under the-L~se or
thin Subordination Agreement. ° The Contract shaIl require and Lessee shall cause the Contractor
. to obtain, payment performance and ,completion bond or~ bonds .n the fuIl amount of. the Contract
from financially responsible sureties ~Iicenseti to do business in the State of California. The
delivery of said bonds shall satisfy ;the requirements of Para~-aph 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 .Comrrii.tment and of aIl other,
documents, including escrow instructions,. required by the Construction Lender, the lender who, is
committing to make the Permanent Loam and/or the escrow company in connection with the
closing of the Construction. Loan, 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 th.e Construction Lender's
. Subordination Agreement .unless Lessor or Lessor's counsel .has. verified. that the final
Construction Loan Documents have. not been substantially moaified and that. they will upon
recordation of .the Construction Lender's Subordination Agreement `be :in force in substantial
accordance with the teims of the copies thereof provided to Lessor with the written 'notice
requesting Beneficiary'-s, execution of the Consiruction Lender's Subordination A~eement.
.Lessor and Lessor's. counsel a~ee 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 teriniriation 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 5 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 rneetirig 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 Doeuinents in an amount not to exceed Five
Thousand Dollars ($5,000:00).
2. 1VIODIFICATION 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 be 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' or' breach by Lessee under the terms of the Construction .Loan Docu-
ments which in the.good faith judgment of Lessor carries asignificant 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 Lesso;• provides evidence satisr'actory to Lessor that (I) such default has not
occuTetj.; (2) such default `has been cured; or (3) the Cons~ction Lender has waived such default
in tivriring. In the event Lessee fails to cure said default 'in file manner described in (1) tlu'oubh
(3) of the immediately preceding. sentence, Lessor may, at Lessor's sole option and election, upon
three (3) days' advance written nonce 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 ali 'of its remedies under the Lease, and, without -any obligation
tD Lessee to do so; may also pay or otherwise cure any such breach or default of the Construction
Loan. Documents .anal perform ':any obligation on behalf of Lessee, iu which event Lessee shall
.remain in default under the Lease and the amount of the: sums, paid or liabilities incurred by
Lessor to. cause such.. payment, performance or other cure slall 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 t7N~~ 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 tabor 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 orr any portion of the
Subject Property, -and all materials .delivered to the ,property upon delivery; shall be deemed
annexed to the Subject Property.
INSPECTION• DISCLOSTTRE_ 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
atforneys shall be~permitted upon reasonable notice to Lessee and at reasonable times. as Lessor
may elect to .inspect ail books, records,. documents, invoices, receipts, disbursement orders,
letters, notices, claims, contracts, insurance policies :and other rt;atters whatsoever related to the
work of improvement on the. property and the Construction Loan, ail without Limitation, and to
make and keep copies thereof. Lessee shall immmediateIy in writing notify Lessor of any event
winch constitutes a material breach or default under .the Construction Loan Documents. Lessee
aelniowledges ~ 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. MECHANIC'S LIENS: No work shall: be: commenced or materials: deliverea to
fhe Subject Property prior ao the date of recording .oz the Constnctiorz Lender's Subordination
Agreement,, unless. (,1) such work. is not m violation. of the regi:irements of the Cons~trnctinn
Lender and' (ii); at`the time of recordation of tie Corisiruction 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 Iien has attained
priority over the Lease byreason of such subordination. ,lessee. shall .keep. the Subject Property
at all times clear of any and all .mechanics' and materialmen's liens and shall pay when due all
claims for Iabor performed and materials fiirnished. If any such. claims remain unpaid or claims
of Iien are recorded against the Subject Property, lessor at its sole election may upon three- (3j
.clays' advance written notice declare the Lease to be in default. and further:; after expiration of said
three (3) day cure -period and 'ii Lessor so elects, Lessor may ;pay., compromise or other satisfy
such claims, in which. event the sums so e pended by; Lessor shall also be immediately due and
payable by Lessee to Lessor,
7. ~;ESSATION .OR DELAY: ,Any cessation of work on the improvements to be
constructed on the 5ubj'eet Property for snore than twenty (20) ,days for any .reason and any other
delay winch could have the effe~ct'`of prolonging construction ;beyond the '#erm of the Construction
- Loan Documents, whether or not ,a breach. or default under the Construction Loan .LDocuments;
shall be an immediate, material default hereunder unless upon demand by' Lessor; Lessee within
three (3) days furnishes .to Lessor evidence satisfactory to Lessor ~ that such event is not a
default. under the Construction- Loan Documents and. thaf 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 teen of the Construction 'Loan Documents.
lrlo such extension of the term of the Construction'Loan Documents shall be binding upon Lessor
if it would consritute a default under .:Paragraph 1, above.
NO JOINT VENTL7IRE• NO LIABILITY: Nothing in the Lease ..nor this
Subordination Agreement shah .be deemed to make Lessor a partner, co-obligor, co ~bgee, 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 limiting `the generality of the foregoing, nothing, in the ~~Lease and no action taken bye
Lessor pursuant thereto or hereto 'shall be construed or interpreted to mane or constitute Lessor as
a beneficiary, assignee, delegee or co-obligor or co-ablig~e of any of Lessee's rights or
obligations under any Gonstiuction 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 or Lessor's interest: in the Subject Property suiiorainate to any
Construction Loan. documents.- Lessor .has no. obligation or duty` to Lessee or to. an
. Lender to selec y Const*ucn.on
. t, review, inspect, supervise, pass. judgment upon, or inform Lessee or the
construction Lender of the quality, adequacy or sura.bility of any ect of the to .
~P rrns of or
e ormance of the terms or any Constru
p ~ coon I:oan Documents or of any aspect of the
construction work, the plans and speezfrcatons therefor, any. Construction Loan Documents
contracts; documents, architecu; contractors, siibeontractors, and materialmen employed by or .
for Tenant, the progress or: course of construction and its conformi or nonconformi
of the Constructian Loan. Documents or the ~ ry any
.terms of any other contracts or the plans and
specineations therefor, or' any other thing whatsoever, whether or not known to Lessor now or
hereafter..Lessor.owes no duty~of care to protect Lessee~agan~r any nebliaen~, faul road ua
or defective construction and ,shall not be responsole or liable to. Lessee; Constru on Lender or
any other person for negligent; faulty., :inadequate or defective: building or construction or for any
loss or damage of any land, to ;any person or property,
9. REMEDIES C . M ATIVF-
. All remedies herein provided shall be cumulative
with any other .remedy- .herein or now or hereafter existing
b 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 may pursue inconsistent remedies. The rim is 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 a~ A
~,ainst Lease,. in 'the event of; foreclosure or sale of the property by .the
Construction. Lender~under the Construction Loan Documents.:
10. ..TERM.. C'ONTI 7TNG ORT Tr4TION: -
T'ne terra of this Subordination
. ~Agreernent shall :continence upon execution of the
Luse and shall .terminate without notice or
.further documentation on' :the earlier of:. (i) a date forty-eight: (4$) months.:. after the date of
execution of the Lase; or (ii) the date of early tei~ninauon of the Lease.
I~l. ~~JARAIV'L'EE; ,Guar-actors hereby unconditionally and absolutel a ee to
guarantee the Lease Burin the ~ y
g .terra of the' ;Construction. L- oan, which
guarantee shall. not be.
terminated or released until. the Pernrianent Loan is recorded. Gu,az-actors a.,~ee to execute and
deliver to Lessor a guarantee agreement in the form and substance-attached hereto as Ex'ai.bit " "
pnor to the recordation of the Construcrion Loan. B
~ l~ .
~ ~
q p fitted to be given hereunder shall be given
12. NOTICES; All notices re wired or enn
by personal delivery or by deposit into ,the United States. 1VIa1, 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 Rudnansl{y
Meyers,. Nave, Rbaclc, Silver & Wilson
401 Mendocino Avenue; Suite 100
.Santa Rosa, California 95401
To Tenant: Managing Partner
RedwoodEmpre 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
. I7. CONSTRJC'i'Tn1~.
This Subordination Agz'e~ment `is and shall 'be construed and
interpreted as a part of :t~ei,ease. In the, event; any provision of the Lease fails to include, or
imposes lesser obligations upon User. than the provisions of this Subordinarion Agreement, or is
less speciric, the addirional, .more e,.inc or
sp , " ^ 'eater requirements of this Subordination
Agreement shall govern without afrecting the balance of .the Lease or the remaining portions of
such provision in Benefieary.'s Deed of the Lease,
I8. EXECITT_TON dF ADDiTIONAL D ilviFjrj' j'S. Both parties hereto a~ee to
execute any and all additional ~docuinents and/or instruments necessary to carry out the terms of
this Subordination ,A~eement .All documents to be prepared to .carry out the terms of this
- Subordination Agre°..ment; other- than those documents specifically to be.~provided by any
particular party., shall be prepared by such per-sons 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 b an hereto for damages
y Y Ply
or to interpret or enforce -any of the terms or provisions of :this Subordination A~eement, the
revaiiin '
P g party -shall be entitled 'to reasonable ,aftomeys' and experts' fees in addition to .such
other recoverable costs and damages; gas ID.ay be awarded by the Court.
20. INU,IN Subjecf to the restriction- on assignment set forth in the Lease., this
Subnrdination Agreement shall inure ;fo and be binding on all of the parties, their estates, heirs,
personal representatives and assigns.
IN WITNESS V?~REOF, the undersized .,have executed this Subordination Agreement
on the date and year first above wiitten. -
CITY OF PETALUIVIA REDVJO:OD EMPIRE SPORTS.
ASSOCIATES, INC., a California
Corpoiadon ,
By '
City Manager Title
,
Ill
//I
12
,
ATTEST:
GUAR.AI~ITOF.S
City Clerk
APPROVED AS 'TO FORM:
City Attorney
APPROVED:
APPROVED;
Rink Manager
APPROVED:
.Finance Director
i
c:lworcL~lsubord. doc
1/x/94 ~fmk)
13
{ _ .
-
EXHIBITS TO SUBORDigIA'ZTON AG~EMENT .
(to be,attacherl)
Ex~~bit A Description of Subje~ Property
Exaibit B ~ Guazant,,~ Agreement .
c_1wor~lsubord. dac
1/S/94 (fmk) '
.EXHIBIT: "A"
DESCRIPTION OF SUBJECT PROPERTY
•
Hr~:~r.•~r- 1=?~= g r.•;: G2 I T~:r' CiF F'ETHLLlvlh ~ T ~ -?a'~a. F~, F~
• FXHIoT"T C
BALLFIELD P~.RCEL - SDUTN
.A~,L TP~~T RRI, PROPERTY STU~1TED IlJ THE COUNTY DF SONOMA, STr~TE OF
~C~.:LIFDRN?R, BETNG~ A PORTION OF THE L .fiNDS• OF GLE?~ A, CRn.2~iER, T:5
L?ESC'?IB£D BY THA'T' DEED RECDRD:ED. TN Boox 29e5, AT D?1GE 285,
Or . IC_A~ P.ECDRDS DF SON'ON~ COUNTY, DISC-r:IBED AS FOLLO~ti'S
F T T.
BEGINrTING DN„. TH'E NORTHWESTERLY L;~NE DF SATD LANDS. OF CR~MER, . ~'P~OM
VINICH THE NDP~THEP.LY CORNER Cp.NiMO1~ TO CF'tiAMER DAF,CEL "B-1" P.ND •
CR.ANIEP. PARCEL "B" .RS SHOWN ON THAT r~.ECORD OF 5tT~VEY FILED IN B~7GK
37'7 AT FADES 2,1 ~ 22, `50N0?~i~ C'OUNTY RECORDS BETzRS
' SOUTH 3S°2D'' $5" •V~ES.T B2'2. 1.5 FEETr THENCE, LEAVING S.~~ID
NORTNWESTEFLY LINE, SOUTH 15°36~' 16" i:P.S'T 29~ . 05 FEET; THENCE
• SOUTH 60°08'~l'7" EA'5T 611..99 ~FEE,T• THENCE. SOUTH 38°1'23" EAST
5D0. OO FEET; THENCE 50U,TH' 6`3°46~' 0.8" EAST `~8~. 0.5 FEET; THENCE
5 OUTH `J ~ ° 2 ~ ' 31 " EAST ~ 0 9 . ? b FEET ~I'O : THE S DUTHEAE TERLY LINE OF
SAID LANDS •Da C.F~.MER, THENCE, ALONG S~IL~' SDUTHEASTERLI' LINE,
]NORTH 3 5 ~ S'' 3':~9 " E.A:S T 4 0 0.65 FEET TQ THE NlDS T EP.S TERLY C DRT~ER OF
SA.ID• L.fiNDS ; THE°racE, ~iLONG T"tiE NDRTHEAS`TERLY LINE OF 5RI D ?~A~IDS,
NOP~T~i 59°33' d0!' .WE'Sm 2199 .32 FEET TO TH°E ?~hOST .NOF~THERLY CORN%R .
OF SAID L.~TDS; AL50` BEING THE S'OUTHEAS'TERLY LINE OF WASHINGTON
ST~tEET; THEt~7CE, :AIJ;DNG SF.LD SOUTHE,~.STERLY L:NL,
SOUTH 35°2C~' S5" V~E?5T 34D~.00 F::ET TO THE P`Oir~T OF BEGINNING.
CONTAIAt IIJG 2 9 . B~a ACRES i~iORE OR LESS .
FRE P..R~ D B b~~JE~. __~C.E._
A 1~'~~UL-'~'I1~~G C
7~;~~~-~7•E-~.R1~EE-Ft _ -
APN; 13v-0~0-D19 DRTE: 1-10.-9n
. ~~~e~ - •
J OB t 1'9 b ~
.
~ ~
. ~rt~ xs.
' j ' `~•p r~s'` ~ '
OF C
,1-+.
EXHIBIT ``B"
GUARANTY AGREEIvfENT
1
t 1 ~ L
.City Qf ~E~ai~liIyta
C41~TTII~UJT+TG PERS~l\T~ G~fJARAI~TT'~?
1. INCONSIDERATION 0'F, and as an inducement for the Cit3~ of Petaluma, a
political subdivision of the State of California ("Lessor"), to enter into the Subordination
Agreement between the City ofPetaluma, ("Lessor"), Redwood Empire Sportsplex, L.L.C. .
("Lessee".) and ("Guarantors") with respect to certain real property specified in the
~ essee dated ,,2001 as the Leased Premises,
Lease A Bement between Lessor arid.I.
the Guarantor; (Guarantor }hereby guarantees to Lessor, its successors and ass moans
(collectively "Lessor") the full. and prompt payment of'the, interest..and principal and all other ~ .
sums and charges payable by Lessee; `its successors, assigns,licens.ees .and concessionaires .
(collectively "Lessee") under the Construction Loan obtained to finance the construction of
improvements on the Leased Premises ("Construction,Lban Note"j, 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 and'`with Lessor that (i) if'default
(following the gi~nng of notice and passage of the cure periods'available to Lessee under the
Construction Loan Note) shall at any time be made by Lessee in the payment of any ~ uch 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 thee-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"any such default and dema~iiing that Guarantorperform 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, tezrns, conditions and agreements, and. will fortliwitli pay to Lessor all damages,
costs :and expenses that. may arise.'n consequence of any default 'by Lessee under the
Consiru.cton,LoanNotB, including without limitation all reasonable attorneys' fees, expert
witness fees 'and-disburseilleilts incurred. by Lessor in enforcing ifs rights under the Construction
Loan.
party commences an action to en
3 . In addition, in the event either ~ ~ .force or interpret
this Guaranty, or otherwise arsing'out,of this Guaranty, the prevailing party ui 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
individuals} who has provided fo Lessor a wriaten guaranty concerning the Construction Loan
Note.
Page 1 of 4
Continuing Personal Guarant~~ "
- -
l .
This Guaranty i an absolute and unconditional guaranty of payment and of
4.
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. '
5. The Guarantor hereby expressly :agrees that the validity of this Guaranty and the
obligations of the:.GuarantorHereunder shall notbe terminated, affected, diminished or impaired
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. provisions 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 irnpaisment, limitation.. or modification of-the liability of Lessee or the estate
' of Lessee in baialruptcy, or of any remedy for the .eriforeenlent of Lessee's said liability under the .
Construction Loan Note, resulting `from the operation of any present or future- provision of the
Ui~uted. States Bankruptcy Code or :other statute or-:from the decision in any court; or (c) the
rejection or d.isaffirmance of the Construction Loan Note in anysuch 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 ei•;tensi:on of'the Construction Loan Note or by reason of
.anymodification, waiver of or change in any of the terms, covenants; conditions or provisions of
the, Construction.Loaiz Note., or by reason of'aily extension of time that riay 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 herebyacknowledges. that there is a continuing consideration to hini for this
Guaranty :during .tlie entire effective •term of this Guaranty and`tl7erefore waives and relinquishes
. the right to revolve this Guaranty as :provided in California Civil Code 'Section 2515.
~T. Guarantor hereby waives the provisions of California Civil Code Section 2$T9, as.
amended, :and any other; statutes now or hereafter in effects which relate to exoneration of sureties
and as ees that.. the tennis ofthis: Guaranty shall. govern.. Guarantor's liability under this Guaranty
shall in io way be eliminated by:any amendment to or modification of the Construction Loan
Note-or by any impairment of Lessor's rights against I,essee'and the Guaranty shall guarantee the ,
obligations of Lessee'as amended or modified, irrespective .of whether.tlie same result in an
increase in Lessee`s obligations a17d/or a restriction ofLessee's rights under the Construction
Loan Note.
Page 2 of 4
Continuing Personal Guarant~~
4
1
8. Lessor`s consent~to any assignment or assignments;' and!successive assignments ry
Lessee and Lessee's assans~ of the Construction:Loanhote,, made either with or without. notice to
the Guarantor; shall in no manner whatsoever release the Guarantor from.any `liability as
Guarantor.. "
.9. T1ie assignment by.Lessor of the Construction-Loan Note andlor the interest or
` rind al thereof made either with or~without notice to the .Guarantor shall in no manner
P ~P
whatsoever release the Guarantor fr~m~any liability as Guarantor.
1.0. A11 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`tlie Guarantor hereunder shall not be..release~d by Lessor's receipt, application,
or release of securit~t given for the .performance and observance of covenants and conditions
required to be performed .and- observed, by Lessee under°the .Construction Loan Note, nor shall. the
Guarantor be released by the.mantenarlce of or execution upon any lien which Lessor may have
or assert ,against Lessee and/or Lessee's assets rovided, however; Guarantor's liability under this
>P
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 .
_ acfioii or proceeding. commenced by. Lessor against Lesser. arising out of, in connection with, or
bused upon the Construction Loan Note,
12. Durhzg the term of this Guararit5~, 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
a ents or acts of performance b~j the Guarantor, in compliance with the obligations of the
P yn?
Guarantor hereunder; (b) waives any"right to enforce any remedy which the Guarantor now or
hereafter steal"1'have against,Lessee by reason of auy one or rnorepayment or acts of performance
' in compliance with the obligations of~the• Guaraaltor 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 court's of the State of
California and hereby irrevocably appoints Lessee; or,%f Lessee.is a corporation; trustee, .lirn:ited
liability company or paru~.ership, all persons of Lessee upon whom service of process n7ay be
served for service upon Lessee as its agents for the service of process in any acton.against
Guarantor arising- out of this Guaranty. This provision does not affect any-right to serve process
upon Guarantor in any -other manner permitted bylaw.
_ Page 3 of 4
Continuing Personal Guaranty
Guarantor
Dated:
Guarantor
Dated:
Guarantor
Dated:
Guarantor
. Dated: .
.Continuing Personal Guaranty Page 4 of4