2006/11/28 City Council Resolution (4)RESOLUTION NO. 2006- 273
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE
EASEMENT AGREEMENT WITH HORN AVENUE LLC
APN 045- 041 -018 (END OF HEATHER LANE)
WHEREAS, the City Council approved and authorized the sale of City property known
as Assessor Parcel Number 045- 041 -018 by adopting Resolution No. 2005 -331;
WHEREAS, the buyer, Horn Avenue LLC, of the subject property requests ingress and
egress access rights over a City parcel known as Parcel "F" as shown on the Map of Coleman
Valley Subdivision No. 1, recorded in Book 268 of Maps, at pages 12 through 15, lying at the
westerly end of Heather Lane.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert
Park that it does hereby authorize and approve execution of an Easement Agreement.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed
to execute an Easement Agreement in substantially similar form to the attached agreement for
and on behalf of the City of Rohnert Park.
BE IT FURTHER RESOLVED that the City Clerk is authorized to record with the
Sonoma County Recorders office, the Easement Agreement against the City property.
DULY AND REGULARLY ADOPTED this 28th day of November , 20 (4
ATTEST:
City Clerk
CITY OF ROHNERT PARK
Mayor Tim Smith
BREEZE: AYE FLORES: AYE MACKENZIE: AYE VIDAK- MARTINEZ: ABSENT SMITH: AYE
AYES: (4) NOES: (0) ABSENT: (1) ABSTAIN: (0)
JH- S:05 -d
Recorded at the Request of
City of Rolulert Park
6750 Commerce Blvd
Rohnert Park, CA 94928
Attention: City Clerk
GRANT OF EASEMENT AGREEMENT
This Grant of Easement Agreement ( "Agreement ") entered into this day of
November, 2006, by and between the City of Rohnert Park ( "City "), as grantor, and Horn
Avenue LLC, a California limited liability company ( "Horn "), as grantee, and is made with
reference to the following.
RECITALS
A. The City Council of the City of Rohnert Park ( "City Council ") adopted Resolution
2005 -331, approving the sale of an 18.21 Acre City -owned Surplus Property located
immediately North of the Rohnert Park City Limits, South of Horn Avenue, West of Heather
Lane and Hermosa Court, and East of the Banks of the Bellevue Wilfred Flood Control
Channel ( "Property ").
B. Horn intends to develop the Property as a Wetland Mitigation Bank.
C. Horn has requested access to the Property over a separate City parcel located at the
end of Heather Lane ( "Burdened Property ").
D. The City Council adopted Resolution on November 28, 2006 approving
grant of Easement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth, the
parties agree as follows:
I . Grant of Easement. Subject to the provisions of this Agreement, City hereby grants
to Horn a non - exclusive easement for above - ground access, ingress and egress to the
Property ( "Easement "), in and over the Easement Area (defined below).
2. Limitation on Use. Horn acknowledges that the Easement granted herein is
nonexclusive. Horn agrees that the use of the Easement granted herein (a) is limited to
Wetland Uses (defined below), and (b) shall not interfere with the use or enjoyment of the
Burdened Property. The Easement Area may be used by Horn and Horn's employees, agents,
representatives, affiliates, contractors, subcontractors, or other authorized parties ( "Horn's
Representatives ") only for purposes set forth in this Agreement.
3. Easement Area. The "Easement Area" is approximately 200 square feet (20) feet
wide and extends across the Burdened Property generally west of and adjacent to the west
end of Heather Lane, as more specifically described in Exhibit A attached hereto and
Be
incorporated by reference. Horn agrees that City, in its sole discretion, may relocate the
Easement Area by written notice to Horn, and that Horn shall cooperate with City in
executing and recording any necessary quitclaims, easements, and other documents in
connection therewith.
4. Term. The term of this Agreement shall commence on the date of recordation hereof
( "Effective Date ") and continue for so long as the Property is (a) held as Wetland Mitigation
Bank, (b) subject to Diverse Agricultural County Zoning, and (c) remains subject to the
"Landscape and Scenic Parcel" designation per the Map of Coleman Valley Subdivision
No. l referenced in Exhibit A hereto. The foregoing are collectively referred to as "Wetland
Uses." Notwithstanding the foregoing, in the event that the Property, for any reason is no
longer s mject tv w e land Uses, in the event this Easement is surrendered, or in the event of a
default as described in Agreement Section 13, this Agreement and the Easement shall
terminate ( "Termination "). Horn shall, upon City's request, cause to be executed,
acknowledged and delivered on behalf of Horn to the City, a quitclaim deed in recordable
form as evidence of such Termination.
5. Additions and Alterations. No additions or improvements to, or alterations of, the
Easement Area shall be made without the prior written consent of the City. Before the
commencement of any work on the Easement Area, Horn shall, at Horn's cost and expense,
obtain any and all necessary approvals and permits from applicable governmental agencies
and authorities and promptly provide copies of such permits and approvals to City. Upon
Termination, then, to the extent directed by the City, Horn shall remove all alterations,
additions, betterments and improvements made, or installed, and restore the Easement Area
to the same, or as good condition as existed on the Effective Date, reasonable wear and tear
excepted.
r'nnA 4 ter, f ll 1~ 4 A The Area » ,•.•
vi, vi
the Easement [--1rea. 1 he Easement Area is In all as 1$ condition. The
City makes no representation to Horn and shall assume no responsibility as to the usability of
the Easement Area at any time.
7. Maintenance. Horn shall maintain, repair and replace, at Horn's cost and expense, the
Easement Area, including any and all improvements therein, until Termination. City hereby
grants to Horn the right to enter the Burdened Property from time to time (upon written
advance notice to the City) to perform such maintenance, repair and replacement obligations.
8. Prohibition Against Transfers. Horn shall not assign, sublicense, hypothecate, or
transfer the Easement or this Agreement or any interest therein directly or indirectly, by
operation of law or otherwise, except in connection with the sale of the Property. In case of
sale of the Pronertv_ this Agreement -ha11 he deemed necionPd to tt,. Pr,rrti,aoc , thA, A ,4 —j—
will be deemed to have accepted the terms hereof. The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Horn, or of the interest of
any general partner or joint venturer or syndicate member or cotenant if Horn is a partnership
or joint venture or syndicate or cotenancy, which shall result in changing the control of Horn,
shall be construed as an assignment of this Agreement. Control means fifty percent (50 1/0) or
more of the voting (or similar) power of the entity.
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9. Hold Harmless. Horn shall indemnify, defend, and hold harmless the City, its City
Council, Boards and Commissions, officers, agents, servants and employees against any and
all loss, damages, liability, claims, suits, costs, and expenses, including reasonable attorneys'
fees, in any manner connected to (a) this Agreement or any use of the Easement Area by
Horn; (b) Horn's negligent performance of services or work conducted or performed
pursuant to this Agreement or otherwise on the Easement Area; (c) the furnishing or
supplying of work, services, materials, equipment or supplies arising from Horn's negligent
performance of services or work conducted or performed pursuant to this Agreement; and
(d) the existence of hazardous substances or hazardous waste released by Horn or Horn's
Representatives. Horn's obligation to indemnify City under this Section 9 shall not apply to
the extent any such claims or damages are caused by the sole or active negligence or willful
misconduct of City Parties. The provisions of this Section 9 shall survive the Termination.
10. Insurance. Horn shall be liable for any loss of, or damage to, the Easement Area
incurred as a result of its use and shall make such restoration or repair, or monetary
compensation as may be directed by the City. All insurance required of Horn shall be for the
protection of the City and Horn against their respective risks and liabilities in connection
with the Easement Area. The endorsement provided to City shall name the City of Rohnert
Park as an additional insured under general and automotive insurance coverages required by
this Agreement. A certificate of insurance or a certified copy of each policy of insurance
provided to satisfy the requirements of this Agreement shall be deposited with City prior to
the use of the Easement Area. Horn agrees that not less than thirty (30) days prior to the
expiration of any insurance required by this Agreement, it will deliver to the City a certificate
of insurance or a certified copy of each renewal policy to cover the same risks.
11. _ Compliance With All Laws. Horn shall, at all times during the term of this
Agreement and any use of the Easement Area, observe and comply with the provisions of all
applicable federal, state, and local laws, regulations, and standards, with respect to its
occupancy and use of the Easement Area. Horn covenants that it will not improperly
generate, use or store hazardous substances or hazardous waste on or about the Burdened
Property. or the Easement Area. Horn shall promptly notify the City and supply copies of any
notices, reports, correspondence, and submissions made by Horn to any Governmental
Authority, or received by Horn from said authority, concerning environmental matters or
hazardous substances or hazardous waste on or about the Burdened Property, the Easement
Area, or pertaining thereto.
12. Default. Each of the following events shall be a default by Horn and a breach of this
Agreement:
A. Abandonment or surrender of the Property;
B. Failure or refusal to pay when due any maintenance or repair cost as required
by this Agreement;
C. Failure to perform as required or conditioned by any other covenant or
condition of this Agreement;
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D. Discontinuation of the Wetland Uses or any more intense use of the Property
than expressly permitted under the present Sonoma County Zoning of Diverse
Agricultural or Wetland Mitigation Bank purposes;
E. The subjection of any right or interest of Horn to attachment, execution, or
other levy, or to seizure under legal proceedings, if not released within thirty days; or
F. The appointment of a receiver to take possession of the Property or
improvements including, but not limited to assignment for the benefit of creditors or
voluntary or involuntary bankruptcy proceedings;
As a precondition to pursuing any remedy for an alleged dPfa„lt by Horn, Cit. shalt (r;.,,-
written notice of default to Horn specifying the alleged event of default and the intended
remedy.
13. Waiver. A waiver of the City of any breach of any term, covenant, or condition
contained herein shall not be deemed to be a waiver of any subsequent breach of the same or
any other term, covenant, or condition herein, whether of the same or a different character.
14. Integrated Contract. This Agreement represents the full and complete understanding
of every kind or nature whatsoever between the parties hereto, and preliminary negotiations
and agreement of whatsoever kind or nature are merged herein. No verbal agreement or
implied covenant shall be held to vary the provisions hereof. Any modification of this
Agreement will be effective only by written execution by both the City and Horn.
15. Miscellaneous. This Agreement is made and entered into in the State of California
and shall be interpreted, construed and enforced in accordance with the laws of the State of
California without reference to its choice of laws rules. If any provision of this Agreement is
declared invalid or is unenforceable for any reason, that provision shall be deleted from the
document and shall not invalidate any other provision contained in the Agreement. The word
"including" shall be construed as if followed by the words "without limitation." This
Agreement shall be interpreted as though prepared jointly by both parties. Nothing contained
herein nor any acts of the parties hereto shall be deemed or construed by the parties hereto,
nor by any third party, as creating the relationship of principal and agent or of partnership or
of joint venture by the parties hereto or any relationship other than the relationship of grantor
and grantee. Nothing herein is intended to create any third party benefit. Each individual or
entity executing this Agreement on behalf of Horn represents and warrants that he or she or it
is duly authorized to execute and deliver this Agreement on behalf of Horn and that such
execution is binding upon Horn. In the event that any action is brought by either party hereto
as against the other party hereto for the enforcement or declaration of any right or remedy in
or under the Agreement or for the breach of any covenant or condition thereof, the prevailing
party shall be entitled to recover, and the other party agrees to pay, all fees and costs to be
fixed by the court therein including, but not limited to, attorneys' fees.
CS
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first above written.
GRANTEE: GRANTOR:
HORN AVENUE LLC, a California CITY OF ROHNERT PARK
Limited Liability Company
By: By:
Name: Stephen R. Donley
Its: City Manager
Per Reso. No. 2006 -273 adopted by the
City Council on November 28, 2006
ATTEST: APPROVED BY:
By:
City Clerk Gabrielle P. Whelan
Assistant City Attorney
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969275«2 80078/0022