HomeMy WebLinkAboutOrdinance 2342 N.C.S. 09/14/2009EFFECTIVE DATE
OF ORDINANCE
October 14, 2009
Introduced by
Teresa Barrett
ORDINANCE N0.2342 N.C.S.
Seconded by
David Glass
AUTHORIZING THE EXPENDITURE OF $5,500, PLUS COSTS AND FEES, TO PURCHASE
EASEMENTS FROM SMART IN CONNECTION WITH THE CAULFIELD LANE EXTENSION AT-
GRADE RAILROAD CROSSING PROJECT AND AUTHORIZING THE CITY MANAGER TO
EXECUTE ALL REQUIRED DOCUMENTS
WHEREAS, SMART is the owner of a parcel of real property located at the western
terminus of Caulfield Lane, in the City of Petaluma, County of Sonoma, California, Sonoma
County Assessor's Parcel No. 005-060-080 (Parcel); and,
WHEREAS, the City of Petaluma (Grantee) is acquiring from Grantor easements for the
construction, operation and maintenance of a railroad crossing, sidewalk, public utility and
storm drain system; and,
WHEREAS, for such purposes, Grantee intends to construct the crossing, sidewalk, public
utility and storm drain system onto the easements; and,
WHEREAS, at a closed session on October 20, 2008, the City Council of the City of
Petaluma authorized staff to negotiate the easements with the Grantor. Staff has successfully
reached an agreement for the easements; and,
WHEREAS, the City of Petaluma, in consultation with the Grantor, has prepared an
easement agreement, which is attached to this ordinance as Exhibit A to Ordinance and
incorporated herein by reference; and,
WHEREAS, environmental impacts of the at-grade crossing for which the proposed
easements are being acquired were studied for purposes of the California Environmental Qudlity
Act ("CEQA") as part of the program Final Environmental Impact Report for the Central
Petaluma Specific Plan ("CPSP") certified by the City of Petaluma prior to adoption of the CPSP
(SCH #2002-112-039) ("FEIR"); and,
WHEREAS, on February 16, 2006, the PUC issued its Opinion Conditionally Granting
Application 04-06-030 ("2006 Opinion"), which conditionally approved relocation of the crossing.
and expressly determined after thorough review that the City's prior environmental review was
adequate to support the PUC conditional approval; and,
Ordinance No. 2342 N.C.S. Page 1
WHEREAS, at such time as passenger rail service commences along the rail line, the City is
required by the 2006 Opinion to apply to the PUC for continued authorization of the at-grade
crossing, and will include as part of that application any supplemental environmental evaluation
required because of future institution of passenger rail service. NOW, THEREFORE, BE IT ORDAINED
BY THE CITY COUNCIL OF THE CITY OF PETALUMA AS FOLLOWS:
Section 1. The Recitals are true and correct and adopted as findings of the City Council.
Based on said findings, environmental review of the at-grade crossing relocation has been
conducted pursuant to CEQA and supports the acquisition of the easements authorized by this
ordinance.
Section 2. The City Manager is authorized to execute the Easement Agreement
attached as Exhibit A hereto and all documents necessary to acquire and accept the
easements which are the subject of the Easement Agreement.
Section 3. If any section, subsection, sentence, clause, phrase or word of this ordinance
is for any reason held to be unconstitutional, unlawful or otherwise invalid by a court of
competent jurisdiction or preempted by state legislation, such decision or legislation shall not
affect the validity of the remaining portions of this ordinance. The City Council of the City of
Petaluma hereby declares that it would have passed and adopted this ordinance and each
and all provisions thereof irrespective of the fact that any one or more of said provisions be
declared unconstitutional,. unlawful or otherwise invalid.
Section 4. This ordinance or a synopsis of it shall be posted and/or published for the
period and in the manner required by City charter.
Section 5. This ordinance shall become effective thirty (30) days after the date of its
adoption by the Petaluma City Council.
INTRODUCED and ordered posted/published this 3~d day of August, 2009.
31 ADOPTED this 14'h day of September, 2009 by the following vote:
32
33 AYES: Vice Mayor Barrett, Glass., Harris, Healy, Babbitt, Renee, Mayor Torliatt
34 NOES: None
35 ABSENT: None
36 ABSTAIN: None
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41 ATTEST:
42
43
44
45 Claire Cooper, City Clerk
Ordinance No. 2342 N.C.S. Page 2
APPROVED AS TO FORM:
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E)CFIB~IT A T® ®R®INAIVCE
RECORDING REQUESTED BY:
CITY OF PETALUMA
WHEN RECORDED MAIL TO:
City of Petaluma
1 1 English Street
Petaluma, CA 94952
Attn: City Clerk
A P N : 007-579-029-000
Exempt from Recording Fees
Government Code Section §6103
This space for Recorder's use only.
EASEMENT AGREEMENT
This Easement Agreement ("Agreement") is made by and between the Sonoma Marin Area Rail
Transit District, a public agency created under California law, ("SMART"), the Petaluma
Community Development Commission, a public body corporate and politic ("PCDC") and the
City of Petaluma, a California municipal corporation, ("CITY"). SMART, PCDC and CITY are
sometimes referred to hereafter as the "Parties."
RECITALS
A. SMART is the owner of the former Northwestern Pacific Railroad right-of-way described in
that certain quitclaim deed from the Northwestern Pacific Railroad to SMART recorded in
the Official Records of Sonoma County as Document No. 2004 028629. The portion of the
right-of-way affected by this Agreement is located in the City of Petaluma, County of
Sonoma, at MP 5-37.8 and further described in Exhibits 1 A, 1 B, 2A, 2B, 3A, 3B, 4A and 4B
(the "SMART Property").
B. The North Coast Railroad Authority, a public agency ("NCRA") has a perpetual freight
easement over the SMART Property.
C. On or about July 31, 2008, PCDC and NCRA entered into that certain Interagency
Agreement Between the Petaluma Community Development Commission and the North
Coast Railroad Authority Regarding Crossing Relocation from Hopper Street to Caulfield
Lane ("Crossing Relocation Agreement"), providing in part that an existing mainline
railroad crossing located at MP 5-38.3 in the City of Petaluma ("Hopper Street Crossing")
be relocated to the SMART Property at MP 5-37.8, at Caulfield Lane in the City of
Petaluma ("Caulfield Lane Crossing").
D. SMART stated its support for the relocation of the Hopper Street Crossing to the Caulfield
Lane Crossing in a letter dated October 9, 2007. The relocation necessarily includes use
of the SMART Property for the Caulfield Lane Crossing.
Ordinance No. 2342 N.C.S.
Page 3
The relocated rail crossing provides mutual benefit, including but not limited to improved
rail crossing safety, to the Parties to this Agreement and to NCRA, which mutual benefit
constitutes additional consideration for this Agreement.
Relocation of the railroad crossing necessitates the construction and/or installation of
certain public improvements including a railroad crossing surface and new crossing
signals, all the necessary wiring and electrical connections related to the signals or
equivalent protective and warning measures acceptable to the City, SMART and NCRA,
as well as public improvements for pedestrian arid vehicular access over the relocated
crossing and public utilities, including obtaining an easement naming SMART as grantee,
affecting 258 square feet more or less of property (the "Signal House Easement")
together with an easement for utility purposes to connect the Signal House Easement
and improvements thereon to other signal equipment already existing for the proper
operation of signal arms, lights, audible warning devices and appurtenances thereto
("the Utility Easement"), for the benefit of SMART and NCRA. The Signal House Easement
and the Utility Easement are as shown in Exhibits 5A and SB attached hereto and
incorporated herein by reference. The Utility Easement will affect the same property
burdened by a Public Utility Easement which is to be acquired by the CITY as grantee.
The CITY and SMART anticipate that utilities to serve the. Signal House Easement will be
placed in one of three 4" conduits to be installed by NCRA's contractor as shown on HDR
Plan Sheet C-002.
G. The Crossing Relocation Agreement sets forth the rights and responsibilities of the PCDC
and NCRA with respect to the relocation of the mainline railroad crossing from Hopper
Street to Caulfield Lane, including construction of Caulfield Lane approaches from its
existing terminus to Hopper Street, and the obligation to obtain various rights for
temporary construction easements and long term right-of-way easements within the
SMART Property..
H. The Crossing Relocation Agreement provides at Paragraph 4 that SMART shall own the
Caulfield Lane crossing signals and Caulfield Lane crossing surface upon completion.
City and PCDC acknowledge that the City is bound by and subject to California Public
Utility Commission (PUC) Decision 06-02-036 dated February 16, 2006, and any
subsequent modification of said Decision.
CITY and PCDC wish to obtain four permanent easements over the SMART Property for
the purpose of construction and use of the relocated Caulfield Lane Crossing ("the
Project"), including (1) public vehicular and pedestrian access easement for an
extension of Caulfield Lane across the SMART property; (2) public sidewalk easement on
both sides of the Caulfield Lane extension; (3) public utility easement on both sides of the
Caulfield Lane extension; and (4) public storm drain easement for an extension of the
existing storm drain all as further described in Exhibits 1 through 4 to this Agreement.
NOW, THEREFORE, for good and valuable consideration and in consideration of the mutual
covenants, terms, conditions and restrictions contained herein, SMART, PCDC and CITY
covenant and agree as follows:
Ordinance No. 2342 N.C.S. Page 4
1 AGREEMENT
2
3 1. Grant of Non-Exclusive Easements. SMART hereby grants to CITY non-exclusive
4 easements over the SMART Property of the nature, character and extent, and subject to
5 the conditions, set forth in this Agreement ("the Easements").
2. Description of Easements over SMART Property. The Easements are perpetual easements
and rights-of-way for the purpose of laying down, constructing, reconstructing, removing,
replacing, repairing, maintaining, operating and using the improvements in accordance
with improvement plans entitled "The Caulfield Lane Extension Railroad At-Grade
Crossing and Hopper Street Closure at Lakeville Street-Project No. COl 200104" ("the
Project") in, under, along and across the portions of the SMART Property described in
subparagraphs 2a, 2b, 2c and 2d ("the Easement Areas"); provided, however, that CITY
shall not damage or restrict SMART's full use of the SMART Property or the improvements
existing thereon in any way. SMART reserves the right to install, construct, operate, and
maintain both its existing improvements and any future improvements on the SMART
Property. The grants of easement herein are subject and subordinate to the rights of
SMART, and its successors and assigns, to use the SMART Property in the performance of
its governmental and proprietary functions. SMART nevertheless agrees that it shall
avoid to the maximum possible extent the installation, construction, operation and/or
maintenance of its existing and any future improvements on the SMART property in such
a way as to substantially preclude use of the Easement Areas and/or the Project as a rail
crossing.
The easements to be granted by SMART in accordance with this Agreement are
described as follows:
a. An easement for public vehicular and pedestrian access as further described in
Exhibits 1 A and 1 B attached hereto and incorporated herein by reference.
b. An easement for public sidewalks, as further described in Exhibits 2A and 2B
attached hereto and incorporated herein by reference.
c. An easement for public utilities, as further described in Exhibits 3A and 3B
attached hereto and incorporated herein by reference.
d. An easement for public storm drain purposes, as further described in Exhibits 4A
and 4B attached hereto and incorporated herein by reference.
Sianal House Easement and Utility Easement: CITY shall obtain an easement naming '
SMART as grantee, affecting 258 square feet more or less of property (the "Signal House
Easement") together with an easement for utility purposes to connect the Signal House
Easement and improvements thereon to other signal equipment already existing for the
proper operation of signal arms, lights, audible warning devices and appurtenances
thereto ("the Utility Easement"), for the benefit of SMART and NCRA. The Signal House
Easement and the Utility Easement are as shown in Exhibits SA and 5B attached hereto
and incorporated herein by reference. The Utility Easement will affect the same property
burdened by a Public Utility Easement which is to be acquired by the CITY as grantee.
The CITY and SMART anticipate that utilities to serve the Signal House Easement will be
placed in one of three 4" conduits to be installed by NCRA's contractor as shown on HDR
Plan Sheet C-002.
Ordinance No. 2342 N.C.S. Page 5
1 4. Term. The Easements shall continue in perpetuity unless this Agreement is amended or
2 terminated by mutual consent, in accordance with Section 1 b.
3 5. Maintenance of Easements. CITY shall maintain all improvements within the Easement
4 Areas at CITY's sole cost and expense. CITY shall use diligent, good faith efforts to
5 provide that any reconstruction or maintenance activities performed by CITY and
6 related to the easements shall not interfere with SMART's continued use of the SMART
7 Property or the Easement Areas or for any purpose.
8 6. Right of Entry Permit. CITY agrees to obtain from SMART aRight-of-Entry Permit to enter
9 upon Easement Areas for the performance of any work. CITY may designate a
10 contractor to perform such work, in which case that contractor shall obtain aRight-of-
11 Entry Permit from SMART to enter upon Easement Areas.. SMART shall not unreasonably
12 deny any Right-of-Entry Permit contemplated hereunder. CITY shall give notice to SMART
13 prior to commencement of any work, as required by the Right-of-Entry Permit.
14 7. Fiber Optic Systems. The rights granted by this Agreement are subject to the rights of
15 SMART (or anyone acting with the permission of SMART) to construct, reconstruct,
16 maintain, and operate fiber optic and other telecommunications systems ~"Systems") in,
17 upon, along, across, and beneath Easement Areas and SMART rights-of-ways, including
18 Easement Areas upon which Project shall be constructed.
19 CITY agrees to reimburse SMART and/or the owner of Systems existing as of the effective
20 date of this Agreement for all expenses incurred by the owner of said existing Systems to
21 maintain, repair and/or relocate -said existing Systems which would not have been
22 incurred except by reason of the use of the Easement Areas by City, its agents,
23 employees or invitees, including any damages incurred by such owner due to injury to
24 said existing Systems.
25 For future Systems installed after the date of this Agreement, CITY agrees to reimburse
26 SMART or the owner of the Systems for all damages incurred by SMART or the owner of
27 the Systems due to the CITY's negligence or the negligence of its agents, employees or
28 invitees. CITY is not responsible to reimburse SMART or the owner of the Systems for
29 relocation costs for the future Systems.
30 In addition to other provisions of this Agreement requiring CITY to give notice prior to
31 commencing work, CITY shall telephone Qwest Communications, Inc. at 1 (800) 283-4237
32 (a 24-hour number) to determine whether a telecommunications system is buried
33 anywhere on Easement Area. If there is, CITY will telephone the owner of the system
34 designated by SMART, arrange for a cab{e locator, and make arrangements for
35 relocation or other protection for the System prior to beginning any work on Easement
36 Area.
37 8. Project Markers. Project markers in a form and size satisfactory to SMART, identifying the
38 facility and its owner, shall be installed and perpetually maintained by and at the
39 expense of CITY at SMART's property lines or such locations as SMART shall reasonably
40 approve. Such markers shall be relocated or removed upon reasonable request of
41 SMART without expense to SMART. The absence of markers does not constitute a
42 warranty by SMART that there are no subsurface installations.
43 9. Waste or Nuisance; SMART's Rights in Property. CITY shall not commit or suffer: (a) any
44 waste or nuisance on the Easement Areas; (b) any action or use of the Easement Areas
45 which interferes or conflicts with the use of the Easement Areas by SMART or any
Ordinance No. 2342 N.C.S. Page b
1 authorized rail operator or any other entity with prior easement or license rights; or (c)
2 any action on the Easement Areas in violation of any law or ordinance. Except as
3 otherwise provided in this Agreement, CITY shall not undertake or permit any activity or
4 use on the Easement Areas that is inconsistent with the purpose of this Agreement.
5 10. Indemnity. SMART, its successors and assigns, any railroad company operating on
6 SMART's property and their respective directors, officers, agents, and employees shall not
7 be liable to CITY or any third party for any liability, injury, loss, or damage, including but
8 not limited to, injuries to, or death of, any person or the property or employees of either
9 party ("Claim") arising out of or in connection with the use of the easements granted
0 herein, except to the extent that such Claim relates to the negligence or willful
1 misconduct of SMART and/or any railroad company operating on SMART's property..
2 CITY agrees to defend, indemnify, hold harmless, and release SMART, its directors,
3 officers, agents, and employees, from and against any and all actions, claims, suits,
4 damages, liabilities, or expenses (collectively, "Claims") that may be asserted by any
5 person or entity, including CITY, relating to the CITY's negligence or willful misconduct in
6 connection with the easements granted herein, except to the extent that such Claims
7 relate to the negligence and/or willful misconduct of SMART and/or any railroad
8 company operating on SMART's property.
1 1. Enforcement. If through inspection or otherwise SMART determines that CITY is in violation
of the provisions of this Agreement or that a violation is threatened, SMART shall give
written notice to CITY of such violation and demand corrective action sufficient to cure
the violation. If CITY fails to cure the violation within fourteen. (14) days after receipt of
notice thereof from SMART, or under circumstances where the violation cannot
reasonably be cured within a fourteen (14) day period, fails to begin curing such
violation within the fourteen (14) day period, or fails to continue diligently to cure such
violation until finally cured, SMART may bring an action to enforce the provisions of this
Agreement, enjoin the violation, recover damages and enforcement costs for the
violation, and require restoration of the easements to the condition that existed prior to
the violation. If SMART reasonably determines that circumstances require immediate
action to prevent or mitigate a violation or threatened violation of the provisions of this
Agreement, SMART may pursue its remedies under this paragraph without prior written
notice to CITY and without waiting for the period for cure to expire.
33 12 Compensation for Easement. As consideration for the easements granted herein, CITY
34 shall pay SMART the sum of Five Thousand Five Hundred Dollars ($5,500.00). Said sum shall
35 be the purchase price for the Easement Areas so conveyed by SMART pursuant to this
36 Agreement and in settlement of all matters relating to CITY's acquisition of the Easement
37 Areas, including, but not limited to, claims for relocation benefits, loss of goodwill, and
38 any severance or other damages. CITY shall pay all escrow, closing, and document
39 recording fees incurred. CITY shall also reimburse SMART for staff, and consultants time to
40 review and prepare documents associated with this project in an amount not to exceed
41 $5,000. A separate invoice detailing such expenses by date, time spent and personnel
42 involved shall be provided to CITY after negotiations have concluded.
43 Upon receipt of this Easement Agreement, duly executed and acknowledged, CITY shall
44 execute an acceptance of the Easement Agreement and deposit said Easement
45 Agreement and acceptance in an internal escrow with the CITY.
46 13. Enforcement Discretion. Enforcement of the provisions of this Agreement shall be at the
47 discretion of the parties, and any forbearance by a party to exercise its rights under this
Ordinance No. 2342 N,C.S. Page 7
1 Agreement in the event of any breach of any provision of this Agreement by the other
2 party shall not be deemed or construed to be a waiver by the party of such provision or
3 of any subsequent breach of the same or any other provision of this Agreement or of any
4 of the party's rights under this Agreement. No delay or omission by a party in the
5 exercise of any right or remedy upon any breach by the other party shall impair such
6 right or remedy or be construed as a waiver.
7 14. Access and Control. Except as otherwise expressly provided in this Agreement, SMART
8 retains the exclusive right of access to and control over the Easement Areas. Nothing
9 contained in this Agreement shall be construed as precluding SMART's right to grant
10 access to third parties across the Easement Areas consistent with use of the Easement
11 Areas provided in this Agreement.
12 15. Successors. This Agreement shall be binding on and shall inure to the benefit of the
13 parties hereto and their respective successors, heirs, assigns and transferees.
14 16. Amendment. If circumstances arise under which an amendment or modification of this
15 Agreement would be appropriate, such amendment shall become effective only upon
16 mutual consent of the parties. Any such amendment shall be in writing and recorded in
17 the Office of the Sonoma County Recorder.
18 17. Notices. Any notice, demand, request, approval, or other communication that either
19 party desires or is required to be given under this Agreement shall be in writing and may
20 be given by personal delivery or by mail. Notices, demands, requests, approvals, or
21 other communications sent by mail should be addressed as follows:
SMART: Sonoma-Marin Area Rail Transit
Attn: Property Manager
750 Lindaro Street #200
San Rafael, CA 94901
CITY: City of Petaluma
11 English Street
Petaluma, CA 94952
Attn: City Manager
PCDC Petaluma Community Development Commission
1 1 English Street
Petaluma, CA 94952
Attn: Executive Director
and when so addressed, shall be deemed given upon deposit in the United States Mail,
registered or certified, return receipt requested, postage prepaid. In all other instances,
notices, demands, requests, approvals, or other communications shall be deemed given
at the time of actual delivery. Changes may be made in the names and addresses of
the persons to whom notices, demands, requests, approvals, or other communications
are to be given by giving notice pursuant to this section.
43 18. Aoplicable Law and Forum. Interpretation and performance of this Agreement shall be
44 governed by California law and any action to enforce the provisions of this Agreement
45 or the breach thereof shall be brought and tried in the County of Sonoma.
Ordinance No. 2342 N.C.S. Page 8
1 19. No Third Party Beneficiaries. Nothing contained in this Agreement shall be construed to
2 create and the parties do not intend to create any rights in third parties.
3 20. Integration. This Agreement is the final and complete expression of the agreement
4 between the parties and any and all prior or contemporaneous agreements written or
5 oral are merged into this instrument.
6 21. Captions. The captions in this Agreement have been included solely for convenience of
7 reference. They are not a part of this Agreement and shall have no effect upon its
8 construction or interpretation.
9 22. Survival of Agreement. This Agreement, including all representations, warranties,
10 covenants, agreements, releases and other obligations cortained herein, shall survive
11 the closing of this. transaction and recordation of any deed or other document related
12 hereto.
13 23. Severability: If any provision of this Agreement is held by a court of competent
14 jurisdiction to be invalid, void or unenforceable, the remaining provisions shall continue in
15 full force without being impaired or invalidated in any way.
16 24. Authority And Execution: Each person executing this Agreement on behalf of a party
17 represents and warrants that such person is duly and validly authorized to do so on
18 behalf of the entity it purports to bind and if such party is a partnership, corporation or
19 trustee, that such partnership, corporation, or trustee has full right and authority to enter
20 into this Agreement and perform all of its obligations hereunder and that all actions
21 required under applicable governing law for the authorization, execution, delivery and
22 performance of this Agreement have been duly taken.
23 25. Attorneys Fees: In the event any party pursues any right to enforce the provisions of this
24 Agreement, the prevailing party shall have the right to collect all costs and expenses,
25 including attorneys' fees, incurred by the prevailing party in enforcing the obligations of
26 the other party under this Agreement, as fixed by the court.
27 26. P.U.C. Decision 06-02-036. City and PCDC acknowledge that the City is bound by and
28 subject to California Public Utility Commission (PUC) Decision 06-02-036 dated February
29 16, 2006, and any subsequent modification of said Decision.
30
31 [Signatures on following pages]
32
Ordinance No. 2342 N.C.S. Page 9
1 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed.
2
3 By SMART this day of , 2009.
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5 By CITY this day of , 2009.
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7 By PCDC this day of , 2009.
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9
10 [ATTACH NOTARIAL ACKNOWLEDGMENTS AS TO SIGNATORY PARTIES]
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13 SONOMA-MARIN AREA RAIL TRANSIT DISTRICT:
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15 Attest:
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17 By: By:
18 Chairman, Board of Directors Clerk, Board of Directors
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21 Reviewed as to Substance:
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24 By: Date:
25 General Manager
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27 Approved as to Form:
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30 By: Date:
31 Deputy County Counsel
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34 CITY:
35
36
37 By:
38 John C. Brown, City Manager
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40 Attest:
41
42 By:
43 Claire Cooper, City Clerk
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45 (signature blocks continued on next page)
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49 Approved as to Form:
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51
Ordinance No. 2342 N.C.S. Page 10
1 By: Date:
2 City Attorney
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4
5 Approved:
6
7
8 By: Date:
9 1270659.1
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12 By: Date:
13 Risk Manager
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16 By: Date:
17 Finance Director
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21 PETALUMA COMMUNITY DEVELOPMENT COMMISSION:
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23
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25 By: Date:
26 John C. Brown
27 Executive Director
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29 Attest:
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32 By: Date:
33 Claire Cooper
34 Recording .Secretary
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36 Approved as to form:
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39 By: Date:
40 Eric W. Danly
41 General Counsel
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Ordinance No. 2342 N.C.S. Page 1 1