HomeMy WebLinkAboutOrdinance 2031 N.C.S. 10/07/1996Introduced by Matt Maguire
ORDINANCE NO. 2031 N.C.S.
Seconded by Jane Hamilton
AN ORDINANCE APPROVING AN OPTION AGREEMENT TO PURCHASE A SEVEN
ACRE PARCEL LOCATED WITHIN THE GATTI NURSERY SITE OFF SONOMA
MOUNTAIN PARKWAY, PETALUMA, CALIFORNIA, AND AUTHORIZING THE CITY
MANAGER TO EXERCISE THE FIRST OPTION
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS FOLLOWS:
Section 1, the real property located within the Gatti Nursery site, Petaluma, California is
hereby authorized to be purchased under the terms and conditions set forth in the agreement
entitled "Option Agreement (Exhibit A) " and Purchase Agreement (Exhibit B) and incorporated
herein by reference.
Section 2, the City Clerk be, and she is hereby directed to post/publish this ordinance for
the period and in the manner as required by the City Charter.
INTRODUCED and ORDERED posted this 16th day of September 1996.
ADOPTED this 7th day of October, 1996 by the following vote:
AYES: Maguire, Read, Vice Mayor Stompe, Mayor Hilligoss
NOES: None
ABSENT: Hamilton, Barlas, Shea
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
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PARCEL 2
„PREPARED AT THE REQUEST OF
E
PARCEL d
UR9AN HIGH DENSITY
" W
54°39'08` W p 32'47'500
125.43' R = 48.00'
L = 27.48'
2.50 ACRES
PARCEL 1
S 54.39'08" E 437,23'
®a.®�
I PARK SITE
7.00 ACRES
N
2.50 ACRES
PARCEL 2
S 54'39'08' E .may 23'
® — — —
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10 = 100'
70.00
a�
HAWORTW IN AUGUST, 199E 70.00'1
SOUTHEAST
m CORNER
JoN M. wEBe, PLS e7o8 S p PARCEL
1 N0.
MA278
2.00 ACRES
PARCEL 3
POINT OF.
BEGINNING
N 35'20'52" E
90.00' S 54'39-Of- E
S 54*39'09'' E 347.21' 90.05 69.8t'
---------------
N 5412'33" W
0.19'
POINT OF
COMMENCEMENT
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PARCEL 4
URBAN HIGH DENSITY
N 54639108" W
-----__- iV 54'39'OS` W 304.23'
125.43, ®= 3247'50"
R = 48.00'
L = 27.48'
PARCELS 1, 2, and 3
ARE LOCATED NEXT TO
THE SOUTHEAST CORNER
OF APN 137-070-058
PARCEL 2
PREPARED AT THE REQUEST OF
E. HAWORTM IN AUGUST. 1996
JON M. wEBB, pLS 67GQ
2.50 ACHES
PARCEL 1
S 54.39'08' E 437.23'
®®
PARIK SITE
7.00
ACRES
A
0 2.50 ACRES
PARCEL 2
® S 54'39'00' E 437.23'
S 5479-00
2.00 ACRES
PARCEL 3
N 357
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POINT OF
BEGINNING
JE
S. U19'of_ E
90.05 69.8t'
N 54!32'33" W --o0
0.19'
POINT OF -
COMMENCEMENT
Option Agreement
GATTI NURSERY, INC., a California corporation
the CITY OF PETALUMA, a municipal corporation and
("City") make this Option Agreement on November 22
the terms and condition below.
Recitals
("Gatti") and
charter. city
, 1996, on
A. City desires to acquire the real property described as Parcels
1, 2, and 3 in Exhibit A ("Parcel 1," "Parcel 2," and "Parcel 3"
or, collectively, "the Property") for park purposes.
B. The parties agree they have made this Option Agreement in
order to avoid the time and expense of condemnation.
Actions
1. Gatti grants to City the option to purchase the Property on
the terms and conditions set forth in this Option Agreement. City
may purchase the Property on the terms and conditions set forth in
the Land Purchase Agreement attached as Exhibit B ("Purchase
Agreement").
2. The term of the option to purchase Parcel 1 shall begin on the
date of this Option Agreement and shall terminate at 5:00 p.m.
(California time) on November 30, 1996. The term of the option to
purchase Parcel 2 shall begin on the date of this Option Agreement
and shall terminate at 5:00 p.m. (California time) on June 30,
1997. The term of the option to purchase Parcel 3 shall begin on
the date of this Option Agreement and shall terminate at 5:00 p.m.
(California time) on June 30, 1998.
3. On the execution and delivery of this Option Agreement, City
shall pay to Gatti, in immediately available funds, the sum of
$1.00 as consideration for the option. The option consideration is
solely for the grant of the option. On expiration of the option
term, Gatti shall retain all option consideration. If City
exercises the option, Gatti shall credit the consideration against
the purchase price of the Property, if closing occurs in accordance
with the Purchase Agreement.
4. As 'long as City is not in default under this Option Agreement
and all conditions to the exercise of the option are satisfied or
are waived in writing by Gatti, City may exercise the option by
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delivering written notice from City to Gatti before the expiration
of the term of this option for each, Parcel ("Exercise Notice") : The
Exercise Notice 'shall state that the City exercises the option
without condition or qualification. Within three business days
after exercise of the option, the parties shall execute and.deliver
the Purchase Agreement and shall deposit the funds and documents in
escrow as required in the Purchase Agreement.
5. The Property is described in Exhibit A as Parcels 1, 2, and 3.
City must exercise its option to purchase Parcel 1, if at all, on
or before November 30; 1996. If City has exercised its option to
purchase Parceli)(, City may exercise its option to purchase Parcel
2 Z(. City must exercise its option to, purchase Parcel2%., if at
all, on or before June-30, 1997. If City has exercised its options
to purchase Parcels IX and UX , City may exercise its option to
purchase- Parcel3rll. City must exercise its option to purchase
Parcel3l,la, if at all, on or before June 30, 1998. On the
exercise of an option, the parties shall insert into the. Purchase
Agreement the description of the parcel for which the option is
exercised and the purchase price for the parcel.
6. The purchase price for each Parcel shall be $120,000.00 per
acre or the Fair .Market Value of park land determined according to
Section 20.34.010 of the Petaluma Municipal Code, which ever is
greater. The price for a portion of an acre shall be determined to
the nearest square foot; for example, assuming the price is
$120,000.00 per acre, the price for a portion containing 15,000
square feet would be $41,322.31. At the close of escrow Gatti
shall pay the principal amount and all interest payments due for
all bonds and assessments which encumber the Property.
7. Gatti covenants, warrants, and represents to City that to the
best of its knowledge all the covenants, warranties, and
representations set forth in the Purchase Agreement are true and
correct.
8. a. Within 10 days after execution of this Option Agreement,
Gatti, at Gatti's expense,. shall deliver to City a current
preliminary title report on the Property prepared by North American
Title Company, together with. copies of all documents identified as
exceptions in the report ("Preliminary Title Report").
b. City shal,1, have 15 days after.receipt of the Preliminary
Title Report in which to approve or disapprove any or all of the
exceptions shown in the Preliminary Title Report.
c. City shall disapprove exceptions shown in the Preliminary
Title Report. only by delivering written notice to Gatti within the
15 days. If City does not give written notice of disapproval within
that time, City shall be deemed to have approved all the exceptions
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shown in the Preliminary Title Report.
d. If -City disapproves any exception to title within the. time
permitted, Gatti 'shall notify City within 15 days after receipt of
the notice of disapproval if Gatti is - unwilling to clear the
disapproved exceptions. Gatti covenants that, if the option is
exercised, Gatti shall, on or before closing under the Purchase
Agreement, cause all disapproved exceptions to be removed as
encumbrances against title to the Property except any exceptions
that Gatti has notified City that Gatti will not remove, in
accordance with the notice provisions of this section.
e. If Gatti notifies City that Gatti will not remove one or
more disapproved exceptions, City may elect by delivering written
notice to Gatti, within 10 days after receipt of Gatti's notice, to
terminate this option and receive a refund of the option
consideration paid to Gatti or to waive this condition. If City
waives this condition, this option shall then remain in full force
and effect. City's failure to give notice shall waive this
condition.
9. a. At any time and from time to time during the term of the
option, City may enter the Property in order to inspect, survey,
test, design improvements, and perform other actions reasonably
related to City's investigation of the suitability of the Property
for the City's purposes.
b. City will indemnify, defend, and hold harmless Gatti from
any loss, damage, claim, cost, lien,, action, liability, or judgment
(including, without limitation, Gatti's attorney fees and defense
costs) (i) incurred for, from, or by any person or entity acting on
behalf of, at the request of, or for the purpose of the actions of
City under this section; and (ii) for personal injury, property
damage, or other loss or damage of any kind arising from, resulting
from, or in any way related to entry onto the Property by or on
behalf of the City, except to the extent the injury, damage, or
loss results from Gatti's negligence.
C. City may make minor changes in the Property in the course
of any investigation permitted under this Option Agreement (e.g.,
soils bbrings), provided the change or damage is only temporary,
that it is reasonably necessary to investigate the physical
characteristics of the Property, and that City repairs the damage
and restores the Property to its original condition promptly on
completion of the investigation.
d. City's obligation to indemnify and protect the Gatti under
this section shall survive termination of this Option Agreement or
expiration. of the term of the option. In addition, on the
termination of the Option Agreement for any reason or on expiration
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of the term of the option without exercise of the option., city
shall immediately restore the Property to its physical condition as
of the date of this Option Agreement, at City's sole cost.
e., City shall secure and maintain at all times during the
term of this Option Agreement (i) a commercial general liability
policy of insurance, including bodily injury and property damage
coverage, written on an "occurrence" basis,'with limits of not less
than $1,000,000 insuring City againstinjury, to persons or damage
to property arising from or in connection with any action permitted
under this Option Agreement, naming .Gatti as an additional insured
under that coverage, and containing coverage for contractual
liability for City:"s obligations under- this Option Agreement; and
(ii) workers' compensation and employers' liability insurance in
accordance with California law. City shall deliver to Gatti a.copy
of certificates evidencing coverage in force, together with copies
of the policies of insurance, before entering onto the Property.
Each policy will provide that the policy may not be terminated
until 30 days after written notice of the proposed termination has
been delivered to Gatti.
f. City shall comply with all laws, 'ordinances, and
regulations while -on the Property under this section. Before
undertaking any activity on the Property that requires a
governmental permit, City will obtain the permit and pay any fee or
expense required to obtain or carry out the permit.
10. During the term of this Option Agreement, City may seek
governmental permits to develop the Property. Gatti shall cooperate
with City, join in all applications, and execute documents
reasonably necessary for that purpose subject to the following
terms and conditions:
a. Gatti shall not. bear or become obligated, to pay any expense
or assume any liability in connection with any governmental permit.,
and City shall. indemn'if_y,.defend, and hold harmless Gatti from any
cost, loss �liability, or 'expense (including, without limitation,
n So
Gatti's,�a`ttorney fees and defense costs) arising from or in
connection with any governmental permit or application therefor.
b.- Without Gatti's prior written consent, no governmental
permit or approval that shall impose or increase any lien.,
encumbrance, tax,, assessment, or other obligation (financial or
otherwise;) ;on the Property, or change the status of the Property in
any irianner, that would: increase the f inancal. or other burdens or
obligations of ownership of the Property or adversely affect the
Gatti!s ability'to continue the current use of the Property, shall
have any effect before closing under the Purchase Agreement.
c. At least five days before submission of any applications,
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City shall, submit to Gatti copies of all applications and all
studies reports., and other documents that are part of the
applications.
d. All applications and governmental permits submitted or
issued in the name of City shall, to the ma-ximum extent permitted
by law, be assignable to Gatti and shall, in the event of
expiration or earlier termination of the option without exercise
thereof, be assigned and transferred to Gatti if Gatti so elects.
If City does not exercise the option or complete the closing in
accordance with the Purchase Agreement, City shall assign to Gatti
on request, and to the extent legally possible, all agreements
between City and its consultants and all reports procured by City
with regard to the Property.
11. City may not assign this option or any right under it. If any
assignment is attempted, City's rights under this option shall
automatically terminate, without notice.
12. On execution of, this Option Agreement, Gatti and City shall
execute and record in the official records of Sonoma County a
memorandum of option in the form of Exhibit C,, attached. City shall
pay the recording cost. City covenants to execute and deliver to
Gatti immediately on the expiration or earlier termination of the
term of this Option Agreement without the exercise .thereof a
quitclaim deed in recordable form releasing and reconveying to
Gatti all right, title, and interest of City in the Property.
13. The parties warrant and represent to each other that neither
party has dealt with any real estate .agent or broker in connection
with this option. Agreement in any manner that creates or may give
rise to any right or claim for payment of a commission or other
amount. Each party shall indemnify, defend, and hold harmless the
other from and against all loss, cost, and expense (including,
without limitation, reasonable attorney fees and defense costs)
incurred or suffered because of the breach of the foregoing
representation and warranty arising from any claim for compensation
founded on or as a result of acts asserted to have been performed
on behalf of that party.
14. Time is of the essence of this Option Agreement and is a
material 'term. If City does ,not exercise the option as required by
this Option Agreement before expiration of the option term, the
option and all rights of City shall automatically and immediately
terminate without notice, and City shall have no interest whatever
in the Property., Once ithas terminated, the option may not be
revived by any subsequent payment or further action by City.
15. In any action at law or in equity between the parties arising
from or in connection with this Option Agreement, the prevailing
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party shall, recover reasonable attorney fees and other costs
incurred in that action in addition to other relief granted.
16. All notices and communications under this ,Option Agreement
shall be in writing and shall be given, by ('a) personal. delivery,
(b) mailing by certified mail or registered.mail, return receipt
requested, postage prepaid, or United States express mail, or (c)
delivery by commercially recognized courier service. Any- notice or
communication. shall be deemed given, on the date of delivery or
refusal to accept delivery if addressed as follows: -
Gatti:
Gatti Nursery, Inc.
Attn: Richard Gatti
PO Box 750458
Petaluma, CA 04075-0458
City:
City of Petaluma
Attn: City Manager
Post and. 'English Streets
Petaluma, CA 95.952
17. This Option Agreement contains the entire agreement between
the parties pertaining to the subject matter in it and supersedes
all prior and contemporaneous agreements., representations, and
understandings of the parties. No supplement, modification, or
amendment of this Option Agreement shall be binding unless executed
in writing by all parties. ,
18. If City fails or refuses to exercise its option on any parcel
described above, as to that parcel City shall have no further right
or interest, (the "released parcel"). In addition, City shall be
deemed to have determined that the released parcel is not needed or
desired for park purposes, and the City shall commence proceedings
to change the General Plan designation of the released parcel to
"Urban High Diversified."
IN WITNESS WHEREOF, the parties have executed this Option
Agreement on the date set forth beside the signature of each.
Date: �`�'/�%'Ga
By
Date: `/ ,22,2- 4 4e"' Ci
Attest:
City Clerk
Approved as to form:.
City Attorney
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Mayor