HomeMy WebLinkAboutOrdinances 1968 10/03/1994•-R
~~F~C~~V~ DAT~
O~ OR~9Na-~V~~
NOV 2 1 ~
ORDINANCE NO. 1968
N.C.S.
Introduced by
Ross Parkerson
Seconded by
Vice Mayor Sobel
AN ORDINANCE AUTI~ORIZING AIVIENDMENT
TO A LEASE OF REAI~ PROPERTY LOCATED iNIT~-IIN THE
CITY OF PETALUIVIA
~E I'I' ORDAINED ~Y'I'HE Council of the City of Petaluma as follows:
Section 1. The lease for certain real property located in the City of Petaluma,
County of Sonoma, State of California is hereby authorized to be amended under the
terms and conditions set forth in the lease amendment by and between the City of
Petaluma and Cottonvaood Golf Club, Inc., which lease amendment is attached hereto as
Exhibit "A" and incorporated herein by reference and the City Manager is hereby
authorized to sign said Amendment which is for the construction of a public golf course.
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.
Ord. 1968 NCS page 1 of 7
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IIVTRODiJCED AIVD ORDERED ~~t~~~d~posted this 19th
September , 1994.
AI~OPTED this 3rd day of
October
AYES: Parkerson, Read, Shea, Mayor Hilligoss
NOES: None
ABSEN"I': Hamilton, Barlas, Sobel
ATTES'~:
City Clerk
G'~~1.1T1( ~! ~L.ER.9C
day of
, 1994, by the following vote:
Page 2 of 7
Ord. 1968 NCS
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AIVIENll1VIENT TO I,~ASE AG~ElVIENT
THIS AMENDMENT TO LEASE AGREEMENT ("Amendment") is made and entered
into as of this day of , 1994 by and between THE CITY OF PETALLJMA, a
public body, corporate and politic of the State of California ("Lessor"), and COTTONWOOD
GOLF CLUB, INC., a California corporation ("Lessee").
RECITALS:
A. Lessor and a certain third party not party hereto, namely Empire Golf, Inc., a
California corporation ("Empire"), have entered into that certain Lease Agreement dated January
7, 1991 (the "Lease") ~concerning appro~mately 126 acres located on or near the Petaluma
Municipal Airport, Sonoma County, California and therein desc'ribed as the "Leased Premises".
B. Empire has assigned its interest in the Lease to Lessee and Lessor has approved
said assignment.
C. Lessor and Lessee wish to amend the terms of the Lease in the manner herein set
forth.
ACCORDINGLY, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Lessor and Lessee hereby agree'to amend the Lease as follows:
l. STATUS OF LEASE: The Lease is in full force and effect and, except for this
Amendment, has not been modified or amended. Upon execution of this Amendment, there is no
default by Empire or Lessee under the Lease and Lessor has no claims; demands or offsets against
- Empire or Lessee.
2. LESSOR'S REQUIRED OBLIGATIONS: In order to implement the Landlord's
Required Obligations to subordinate the Leased Premises (and the 33 Acre Parcel described in
Paragraph 4, below, when applicable) to allow financing of the project by Lessee in the manner
descri6ed in Paragraph 6.1(c) of the Lease, as amended herein, Lessor hereby appoints and
empowers the City Manager to meet and confer with Lessee within six (6) months of the date of
this flmendment to agree, subject to City Council approval, upon reasonable and express terms
and conditions for Lessee's senior financing. At such time as the City Manager and Lessee agree
upon, and City Council approves, said terms, the Lease shall be further amended by the City
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Manager and Lessee, subject to City Council approval, to incorporate formally the express
subordination terms into the Lease.
Paragraph 6.1(c) of the Lease is deleted in its entirety and is amended to read as follows:
6.1(c) Subordination of ground lease to allow for financing of project.
3. CONSTRUCTION: The Required Construction described in Paragraph 6.5 of the
Lease shall be undertaken by a licensed California general eontractor selected by and under
contract with Lessee.
4. ADDITIONAL RENT: If and when Lessor and Lessee determine that
commencement of construction of the golf course facility is feasible, Lessee agrees that, as and for
consideration for the extension of the Construction Date described in Paragraph 7, below, Lessee
shall then ~become obligated to make a one-time rent payment (the "Additional Rent Payment") to
Lessor in the form of conveyance to Lessor of the 33 Acre Parcel (herein so called and as more
particularly described in Exhibit B to the Lease). For purposes of determining Lessee's obligation
to make the Additional Rent Payment, Lessor and Lessee agree that commencement of
construction of the golf course facility shall be deemed feasible when Lessee is ready to
commence construction of the golf course facility in the manner described in the Lease as
evidenced by (i) Lessor's performance of Lessor's Required Obligations described in Paragraph
6.1 of the Lease, (u) Lessee's acquisition of title to the 33 Acre Parcel from third parties not party
hereto, (iii) Lessor's approval of plans for the golf course facility in the manner described in
Paragraph 6.4 of the Lease, and (iv) Lessor's acceptance of Lessee's assurances for completion in
the manner described in Paragraph 6.6 of the Lease. If the commencement of golf course
construction is not feasible, Tenant shall not be obligated to make the Additional Rent Payment.
If the commencement of golf course construction is feasible, Lessee must make the Additional
Rent Payment no later than the date of opening of public play on the golf course project (the
"Payment Date"). Lessee may, but shall not be obligated to, pay the Additional Rent Payment
prior to the Payment Date. If golf course construction is feasible and if Lessee does not pay the
Additional Rent Payment by the Payment Date, Lessee shall be in default hereunder and Lessor
may terminate the Lease. The payment of the Additional Rent Payment shall not reduce or be a
credit against Lessee's other rental obligations described in Paragraph 7 of the Lease.
If commencement of the golf course facility is feasible, Lessee shall convey the 33
Acre Parcel to Lessor on or prior to the Payment Date in its then e~sting state and condition.
Lessor sha11 accept title to the 33 Acre Parcel free and clear of mortgages and/or deeds of trust
securing monetary obligations of Lessee (other than Lessee's, financing described in Paragraph
6.1(c) of the Lease and Paragraph 2, above) but subject to any and all other non-monetary
encumbrances that do not have a material adverse effect on the conduct of golf course operations
or which may otherwise be approved by Lessor.
5. ElV1INENT DOMAIN: Paragraph 19 of the Lease is hereby amended to provide
that in the event that title to any portion of the Leased Premises or the 33 Acre Parcel are taken
by condemnation or by right of eminent domain and in the event that Lessee cannot reasonably
conduct golf course operations on the untaken portion of the Leased Premises, the Lease shall
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DR.D I 9 (~ $ ~CS
terminate effective as of the earlier date title or possession to the taken portion is obtained by the
condemning authority.
6. ASSIGNMENT: Lessor agrees that for purposes of Paragraph 21 of the Lease,
Lessor's consent shall not be required for any transfer of the stock or assets of Lessee; or any
transfer of the Lease to a partnership; or any transfer of an undivided interest in the Leased
Premises; so long as in each case Richard A. Coombs, Borue H. O'Brien and Larry L. Wasem
shall own, either colleetively or individually, at least fifteen percent (15%) of the voting stock of
Lessee or of any partnership or other ownership arrangement for the Leased Premises and shall
retain control of the operations of the project. Any transfer described in this Paragraph 6 shall not
constitute an assignment or other transfer of Lessee's interest in the Lease.
7. EXTENSION OF CONSTRUCTION DATE: In consideration of the Additional
Rent Payment, Lessor and Lessee hereby agree to delete Paragraph 22.1(d) of the Lease in its
entirety. Lessor and Lessee agree that in the event Lessee does not commence substantial
construction of the golf course project described in the Lease by October 30, 1996 (the
"Construction Date"), Lessor; at its option, may terminate the Lease effective upon delivery of
written notice to Lessee delivered to Lessee at any time after the Construction Date but prior to
the time Lessee may actually commence substantial construction of the golf course. Lessor and
Lessee agree that the Construction Date may be postponed and extended for Unavoidable Delay.
As used herein, the term "Unavoidable Delay" shall mean delays due to strikes, acts of God,
unusual or unreasonable weather conditions, act or delay to act on the part of any public or
governmental entity (other than Lessor), litigation or similar cause or other causes beyond the
reasona6le control of Lessee.
8. CAPITALIZED TERMS: All capitalized terms and phrases used in this
Amendment shall be given the same meaning ascribed to that term or phrase in the Lease except
as otherwise provided in this Amendment.
9. NOTICES; ADDRESSES: For purposes of Paragraph 23 of the Lease, notices,
demands, requests or replies to Lessee shall be delivered to Lessee at the following address:
Cottonwood Golf Club, Inc.
414 Aviation Boulevard
Santa Rosa, CA 95403-1069
Attn: Richard A. Coombs
Larry L. Wasem
10. RECORDING: Neither the Lease nor this Amendment shall be recorded;
provided, lioweyer, .a memorandum of the Lease and this Amendment in a form reasonably
acceptable to the City Manager and Tenant may be recorded by either party in the Official
Records of Sonoma County.
11. CONFLICTS: In the event of any conflict between the terms of the Lease and the
terms of this Amendment, the terms of this Amendment shall govern and prevail.
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12. COtJNTERPARTS: This Amendment may be executed in identical counterparts
and each counterpart together shall constitute a single integrated document.
IN W'ITNESS WHEREOF, the parties hereto have set their hand, effective as of the day
and year first above written.
LESSOR: CITY OF PETALiIMA
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
Finance Officer/Auditor
Risk Manager
LESSEE: COTTONWOOD GOLF CLUB, INC., a
California corporation
By:
Name: Richard A. Coombs
Its:
winword\agrmt.doc
10/5/94 (fmk)
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D R-~ I 9 ~ ~ ~~c.s
EXHIBIT "1" TO AMDENDMENT
TO LEASE AGREEMENT
SUBORDINATION TERMS
-To be attached-
Page ? of 7
D R D I 9 l~ $-.f C,S