2014/07/22 Successor Agency Oversight Board Resolution (2) RESOLUTION NO. OSB 2014-06
RESOLUTION OF THE OVERSIGHT BOARD FOR THE SUCCESSOR AGENCY
CITY OF ROHNERT PARK APPROVING A TEMPORARY LICENSE AGREEMENT
BETWEEN THE SUCCESSOR AGENCY AND AMY'S KITCHEN, INC.
WHEREAS, Assembly Bill 1X 26, as subsequently amended by AB 1484 (collectively,
the "Dissolution Act") dissolved redevelopment agencies formed under the Community
Redevelopment Law(Health and Safety Code Section 33000, et seq.);
WHEREAS, Section 31419.5(b) of the Dissolution Act required the Successor Agency
City of Rohnert Park("Successor Agency")to prepare and submit for review and approval by the
Oversight Board for the Successor Agency("Oversight Board") and the California Department of
Finance ("DOF") a long-range property management plan("Property Plan") addressing the
disposition and use of real property formerly owned by the Community Development
Commission of the City of Rohnert Park;
WHEREAS, Successor Agency staff prepared a Property Plan that was approved by the
Oversight Board by Resolution No. OSB 2013-04 adopted on September 20, 2013 and thereafter
submitted to DOF for review and approval;
WHEREAS, based on DOF's preliminary comments and requests for clarification of
certain items included in the Property Plan, Successor Agency staff prepared an amended
Property Plan that was approved by the Oversight Board by Resolution No. OSB 2014-03
adopted on April 9, 2014 and thereafter submitted to DOF for review and approval;
WHEREAS, DOF approved the Successor Agency's Property Plan by letter dated June
20, 2014;
WHEREAS, the approved Property Plan provides for the disposition of an approximately
6,534 square foot parcel located in the City of Rohnert Park, identified as"Parcel 6" in the
Property Plan and designated as APN 045-082-053 ("Property")to the developer of the adjacent
property immediately to the west ("Adjacent Property") pursuant to Health and Safety Code
Section 34191.5(c)(2)(B), since the Property's only economic value would come through
incorporation into the development of the Adjacent Property;
WHEREAS, the Oversight Board has approved an Agreement of Purchase and Sale and
Joint Escrow Instructions ("Purchase Agreement") for the conveyance of the Property to the
owner of the Adjacent Property, Amy's Kitchen, Inc., a California corporation ("Buyer");
WHEREAS, Buyer desires to access the Property prior to closing under the Purchase
Agreement for the purpose of vehicular access to and from the Adjacent Property and onto
Redwood Drive and for the installation of underground utility improvements to serve the
Adjacent Parcel;
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WHEREAS, Successor Agency staff and Buyer have negotiated the terms of a Temporary
License Agreement, attached hereto as Exhibit A and incorporated herein by this reference
("License Agreement"), to provide Buyer such access to the Property;
WHEREAS, on May 13, 2014, the City of Rohnert Park approved a Mitigated Negative
Declaration("MND") for Buyer's development of the Adjacent Property, which anticipated and
included Buyer's acquisition and development of the Property; and
WHEREAS, the Oversight Board has considered all information related to this matter,
including any supporting reports by Successor Agency staff and any information presented or
provided during public meetings.
NOW, THEREFORE, BE IT RESOLVED by the Oversight Board for the Successor
Agency City of Rohnert Park, as follows:
1. The Oversight Board hereby finds and determines that the foregoing recitals are
true and correct and are incorporated herein.
2. The Oversight Board does hereby further finds approval of the License Agreement
to be consistent with the project evaluated in the MND and that 1)there are no substantial
changes to the project which would result in the need for major revisions to that MND, 2)there
are no substantial changes with regard to the circumstances surrounding the proposed action
which would require major revisions to that MND, and 3)no substantial new information exists
which was not previously known which would show that the project has new significant
environmental impacts, the project's identified impacts are substantially more severe than
previously disclosed, new alternatives or mitigation measures previously found to be infeasible
are in fact feasible and/or would reduce significant environmental impacts more than previously
disclosed.
3. The License Agreement substantially in the form attached hereto as Exhibit A and
incorporated herein by this reference is hereby approved.
4. The City Manager of the City of Rohnert Park("City Manager") is hereby
delegated authority and is authorized and directed to execute the License Agreement substantially
in the form attached hereto as Exhibit A, subject to minor, technical changes approved by the
Oversight Board's General Counsel.
5. The City Manager or his designee is authorized and directed to execute such
additional instruments and to take such actions as are necessary to carry out the intent of this
Resolution.
6. In accordance with Section 34179(h) of the Dissolution Act, the Board hereby
authorizes and directs Successor Agency staff to transmit, by electronic means, written notice and
information about the Board's action approving the License Agreement to DOF; this Resolution
shall become effective five business days after such notice has been given, pending additional
review that may be requested by DOF pursuant to Section 34179(h)of the Dissolution Act.
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DULY AND REGULARLY ADOPTED this 22nd day of July, 2014.
ATTEST: OVERSIGHT BOARD FOR THE SUCCESSOR
AGENCY CITY OF ROHNERT PARK
Eydie Tacata, Clerk of the Board Marilyn Ponton, Chair
Cerreta:AbSani Jolley:Ale- Mackenzie:NSeAAt Masterson: `le. Zane: tThompson:Ai .Ponton:Atie.
AYES:(y ) NOES: ( 0 ) ABSENT: (3 ) ABSTAIN: ( 0 )
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EXHIBIT A TO RESOLUTION NO. OSB 2014 -06
TEMPORARY LICENSE AGREEMENT
This Temporary License Agreement (this"Agreement") is entered into as of
, 2014 (hereinafter the"Effective Date") by and between the
Successor Agency to the Community Development Commission of the City of Rohnert Park, a
public body established pursuant to the laws of the State of California("Owner") and Amy's
Kitchen, Inc., a California corporation ("Licensee") for the purpose of granting a license to
Licensee in accordance with the terms and conditions set forth herein.
RECITALS
A. Owner is the owner of certain real property located in the City of Rohnert Park,
California, commonly known as Assessor's Parcel Number 045-082-053, and more particularly
described in Exhibit A attached hereto and incorporated herein by this reference(the "Owner's
Parcel").
B. Licensee is the owner of certain real property commonly known as 58 Golf Course
Drive West, Rohnert Park, California, Assessor's Parcel Numbers 045-075-002 and 045-075-003
(the "Adjacent Parcel").
C. Concurrently herewith, Licensee and Owner have jointly executed that certain
Agreement of Purchase and Sale and Joint Escrow Instructions(the "Purchase Agreement") for
the purchase and sale, respectively, of the Owner's Parcel (the"Purchase Transaction"), but the
parties anticipate that Licensee's predevelopment activities on the Adjacent Parcel will require
the use of the Owner's Parcel prior to the closing of the Purchase Transaction.
D. Licensee desires from Owner, and Owner desires to grant to Licensee, the right to
use the Owner's Parcel for the purpose of vehicular access to and from the Adjacent Parcel and
onto Redwood Drive and for the installation of underground utility improvements to serve the
Adjacent Parcel.
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged,the parties agree as follows:
1. Recitals. The recitals shall be considered an integral part of this Agreement and
are incorporated herein by this reference.
2. Grant of License. Owner hereby grants and conveys to Licensee(including its
employees and agents), subject to all existing encumbrances and exceptions to title, a temporary.
conditional and limited license (the "License") to use Owner's Parcel as necessary to allow
ingress and egress access to the Adjacent Parcel and to install or have a public utility provider
install utility improvements on or under the Owner's Parcel as are reasonable and necessary for
the purpose of providing the Adjacent Parcel with utility service.
3. Consideration. The obligations of the parties hereunder are undertaken in
consideration and in furtherance of their mutual obligations under the Purchase Agreement.
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4. Termination. This Agreement shall terminate on the earlier of: (a) closing of the
Purchase Transaction; or(b) termination of the Purchase Agreement. Should this Agreement
terminate without the Purchase Transaction having closed, and if Licensee has installed utilities
prior to the termination of the Purchase Transaction, Owner shall provide Licensee an easement
for the maintenance of the utilities installed pursuant to this Agreement and Licensee shall be
obligated to maintain such utilities. Licensee's obligation to maintain such utilities shall survive
termination of this Agreement, as shall the Covenants of Licensee set forth in Paragraphs 7(b)
and 7(d) below.
5. Limitations of Licensee's Use. The use of the License by Licensee is limited to
pedestrian and vehicular access, including ingress and egress to and from the Adjacent Parcel and
installation of underground utility improvements under the Owner's Parcel for the purpose of
servicing the Adjacent Parcel with utilities. Licensee shall at no time permanently park or locate
any vehicles or other personal property or other improvements on Owner's Parcel without the
express written permission of Owner.
b. Maintenance and Repair. As of the Effective Date, Licensee shall be solely
responsible for the construction,repair and maintenance of the Owner's Parcel. From and after
the Effective Date, Owner shall have no duty to repair, replace or maintain in good condition the
Owner's Parcel, excepting only damage to the Owner's Parcel directly caused by the use of the
Owner's Parcel by Owner or Owner's employees, contractors, agents or invitees. Any
maintenance and/or repair performed by or at the direction of Licensee shall be performed in
such a manner that it does not unreasonably interfere with or increase the burden on the use of
the Owner's parcel by Owner. Owner shall have the right, but not the obligation, to repair or
maintain the Owner's Parcel as Owner deems fit.
7. Covenants of Licensee. Licensee agrees to do the following:
(a) Pay all costs for any required construction, repairs, replacements or
alterations to the Owner's Parcel as may be required by Licensee's plans.
(b) Licensee hereby assumes all risk, cost, expense, loss and damage which
may result from Licensee's entry upon or use of the Owner's Parcel, including but not limited to
any vehicle damage and/or personal injury. Licensee shall, and hereby agrees to, indemnify,
protect, defend and hold Owner and its officers, officials, agents, employees and volunteers
(collectively, "Owner Parties")harmless from any and all losses, claims, demands, causes of
action, lawsuits, proceedings, enforcement actions, obligations and liabilities in any way arising
out of use of the Licensee's Area by or through Licensee pursuant to this Agreement. The
indemnification, hold harmless and covenant to defend contained herein shall survive the
expiration or earlier termination of this Agreement.
(c) Licensee shall have in place at all times during the term of the License,
one or more policies of liability insurance covering the Owner's Parcel, which shall contain
standard comprehensive general liability, including coverage for bodily injuries, property damage
(including vehicle coverage for owned, non-owned and hired vehicles) and contractual liability,
and shall provide coverage for bodily injury to or death of persons and/or loss of or damage to
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property, with a combined single limit of at least Two Million Dollars ($2,000,000). Licensee
shall name Owner and Owner Parties as additional named insureds under Licensee's policy or
policies of liability insurance so as to provide coverage to Owner and Owner Parties under such
liability insurance to the full extent of liability arising out of or resulting from use of the License
hereunder. Licensee shall provide a certificate of such coverage to Owner within five(5)days
following any request by Owner for the same. Licensee's policy or policies of insurance shall
contain a provision requiring at least thirty (30) days written notice to Owner prior to any
cancellation or material modification during the term of coverage, and Owner shall have the
right, but not the obligation, to purchase insurance coverage to the extent previously provided
under this paragraph at Licensee's expense.
(d) Licensee acknowledges that Owner does not make any representations or
warranties, express or implied, with respect to or regarding the condition of the Owner's Parcel
or suitability of the Owner's Parcel for Licensee's intended use thereof. Licensee waives any
rights to recover from and forever releases Owner and Owner Parties from any and all losses,
claims, demands, causes of action, lawsuits, proceedings, enforcement actions, obligations and
liabilities that may arise on account of or in any way be connected with: (a)the physical or
environmental condition of the Licensed Area; or(b)any damage suffered by Licensee in
connection with its use of the Licensed Area.
(e) Licensee shall not discharge, release, transport, locate or place or permit or
allow the discharge, release, location or placement of, any hazardous waste, hazardous materials
or any other illegal substance on or within the Owner's Parcel.
(f) Licensee shall secure any required permits or approvals prior to
commencing work or allowing work to be commenced on or under the Owner's Parcel. At all
times during the term of this Agreement, Licensee's use of the Licensed Area shall be in
conformance with and subject to all applicable local, state, and federal codes, statutes, rules,
regulations, enactments, decrees,judgments, orders, permits,certificates and laws of any and all
courts, boards, agencies, commissions, offices or governmental authorities of any nature having
jurisdiction over the Licensee or the Licensed Area.
(g) Licensee shall keep the Owner's Property free from all liens, including but
not limited to mechanic's liens and further encumbrances by reason of Licensee's use of the
Licensed Area. Failure to remove any lien recorded against Owner's Property within thirty(30)
days of receipt of notice of recordation shall be considered a material breach of this Agreement
and cause for termination.
8. Reserved Rights. Notwithstanding anything to the contrary herein, Owner
reserves to itself, and to Owner's personal representatives, heirs, successors, and assigns, all
rights accruing from the ownership of Owner's Parcel, that does not unreasonably interfere with
the purpose of this License.
9. Discretion of Parties. Enforcement of the terms of this Agreement shall be at the
discretion of Owner, and any forbearance by Owner to exercise his rights under this Agreement
in the event of any breach of any term of this Agreement by Licensee shall not be deemed or
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construed to be a waiver of such term or of any subsequent breach of the same or any other term
of this Agreement or of any rights under this Agreement. No delay or omission in the exercise of
any right or remedy upon any breach shall impair such right or remedy or be construed as a
waiver.
10. Acts Beyond Owner's Control. Nothing contained in this Agreement shall be
construed to entitle Licensee to bring any action against Owner for any injury to or change in
Owner's Parcel resulting from causes beyond Owner's control, including, without limitation, fire,
flood, storm, vandalism or other trespass, and earth movement, or from any prudent action taken
by Owner under emergency conditions to prevent, abate, or mitigate significant injury to Owner's
Property resulting from such causes.
11. Amendment. If circumstances arise under which an amendment to or
modification of this Agreement would be appropriate, Owner and Licensee may jointly amend
this Agreement. Any such amendment must be in writing.
12. Notices. Any notice, demand, request, consent, approval, or communication that
either party desires or is required to give to the other shall be in writing and either served
personally or sent by first class mail, postage prepaid, addressed as follows:
To Owner: To Licensee:
Successor Agency to the Community Amy's Kitchen, Inc.
Development Commission of the City of 1650 Corporate Circle, Suite 200
Rohnert Park Petaluma, CA 94955
130 Avram Avenue Attention: Mark Rudolf, CFO
Rohnert Park, CA 92608-3517
Attention: City Manager
With a copy to:
Burke, Williams & Sorensen, LLP Clement, Fitzpatrick& Kenworthy, Inc.
1901 Harrison Street, 9'h Floor 3333 Mendocino Ave., Suite 200
Oakland, CA 94612 Santa Rosa, CA 95403
Attention: Rafael Mandelman Attention: Robert L. Quail
or to such other address as either party or its assignee from time to time shall designate by written
notice to the other.
13. General Provisions.
(a) Controlling Law. The interpretation and performance of this Agreement
shall be governed by the laws of the State of California.
(b) Severability. If any provision of this Agreement, or the application thereof
to any person or circumstance, is found to be invalid, the remainder of the provisions of this
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Agreement, or the application of such provision to persons or circumstances other than those as
to which it is found to be invalid, as the case may be, shall not be affected thereby.
(c) Attorneys' Fees. In the event legal action is instituted by any party to this
Agreement, the prevailing party shall be entitled, in addition to any other relief to which such
party may be entitled, to receive from the other party reasonable attorneys' fees to be determined
by the court in which such action is brought.
(d) Entire Agreement. This instrument and the Purchase Agreement set forth
the entire agreement of the parties with respect to the Owner's Parcel and supersede all prior
discussions, negotiations, understandings, or agreements relating to the Owner's Parcel, all of
which are merged herein. No alteration or variation of this instrument shall be valid or binding
unless set forth in a writing duly executed by all parties to be bound thereto.
(e) No Assignment. The rights granted to Licensee in this Agreement and the
License granted herein are personal to Licensee and as such are non-transferrable. Any transfer
or assignment in violation of this provision shall be void and shall, at the election of the Owner,
constitute a material breach of this Agreement and effect a termination of the License.
(f) Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect upon
construction or interpretation.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the last
date set forth below.
OWNER:
Successor Agency to the Community Development
Commission of the City of Rohnert Park
Dated: , 2014 By:
Darrin Jenkins, City Manager, City of Rohnert Park
ATTEST:
By:
Eydie Tacata, Oversight Board Clerk
APPROVED AS TO FORM:
By:
Elizabeth Ann Strauss, Oversight Board Counsel
Dated: , 2014 LICENSEE:
Amy's Kitchen, Inc., a California corporation
By:
Name:
Its:
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EXHIBIT A
DESCRIPTION OF OWNER'S PARCEL
The land referred to herein is situated in the State of California, County of Sonoma, City of
Rohnert Park and described as follows:
All that certain real property situate in the City of Rohnert Park, County of Sonoma, State of California,
being the lands of the CITY OF ROHNERT PARK, a Municipal Corporation, described as TRACT TWO,
PARCEL THREE in that certain Grant Deed recorded March 17, 1989 under Document Number
89023626, Sonoma County Records and being a portion of Willis Avenue abandoned by that certain
Resolution No, 91-56, a resolution of the City Council of the City of Rahnert Park, recorded October 3,
1991 under Document Number 1991 0098889, Sonoma County Records, being more particularly
described as follows:
Parcel 1
Commencing at a City monument marking the centerline intersection of Business Park Drive and
Redwood Drive (formerly South Santa Rosa Avenue) on the map of Rohnert Business Park Subdivision
recorded in Book 375 of Maps, Pages 10 and 11, Sonoma County Records, thence from said Point of
Commencement N 00 degrees 08' 49" E, along the centerline of South Santa Rosa Avenue 81.10 feet,
thence N 89 degrees 51' 11"W, 20.00 feet to the westerly right of way of South Santa Rosa .Avenue;
thence along said right of way N 00 degrees 08' 49" B,349.35 feet;thence N 02 degrees 29' 15"E,
303.91 feet;thence N 04 degrees 08'51" E. 425.27 feet;thence N 00 degrees 09'15" B, 710.92 to the
northeast corner of the lands of North Bay Properties. described in that certain Grant Deed recorded July
5, 1984 under Document Number 84045612, Sonoma County Records;thence N 89 degrees 34' 00"W,
476.31 feet; thence S 00 degrees 03' 49'W, 95.05 feet to the POINT OF BEGINNING being a point on a
curve to the left, having a radius point which bears N 74 degrees 37' 05" E, 551.00 feet and has an
internal angle of 12 degrees 56' 47";thence along said curve 124.50 feet; thence N 89 degrees 34' 00"
W, 46 38 feet; thence N 00 degrees 03' 49" E, 114.96 feet to the PONT OF BEGINNING.
Together with:
Farce; 2
All that portion of Willis Avenue abandoned by said Resolution No. 91-56 lying east of the centerline of
said Willis Avenue and lying north of the westerly prolongation of the southerly line of Parcel 1 described
hereinabove being more particularly described as follows:
BEGINNING at the northeasterly corner of the hereinabove described Parcel I, being a point on the
westerly right of way of Redwood Drive as said Redwood Drive is shown on that certain map titled
RECORD OF SURVEY OF REDWOOD DRIVE REALIGNMENT filed January 18, 1990 in Book 451 of
Maps at Page 5, Sonoma County Records, being a point on a curve, concave to the northeast, having a
radius of 551.00 feet, to which point a radial line bears South 74°37'05"West;thence northerly, along
said curve and along said right of way. through a central angle of 15°28'59" an arc distance of 148.90
feet, thence continuing along said right of way, North 00°06' 04" East, 10.00 feet to the northerly line of
said portion of Willis Avenue; thence leaving said right of way, along said northerly line, North 44"53' 56"
West, 0.15 feet to said centerline of Willis Avenue; thence South 00'03 '49'West, 272.04 feet to said
westerly prolongation; thence along said westerly prolongation South 89°34' 00' East, 20.00 feet to the
easterly right of way of said Willis Avenue: thence along said right of way North 00"03'49" East, 114 96
feet to the POINT OF BEGINNING
NOTE:This legal description is compiled from record data and is not the result of a field survey
APN. 045-082-053
(End of Legal Description)
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