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HomeMy WebLinkAboutResolution 96-087 N.C.S. 04/01/1996RESOLUTION NO. 96_g, N.C.S. of the City of Petaluma, California RESOLUTION AUTHORIZING CITY MANAGER TO EXECUTE LEASE AGREEMENT WITH STATE LANDS COMMISSION F012IMPLEMENTAT(ON OFTHE PETALUMA RIVER PAYRAN REACH CHANNEL IMPROVEMENT PROJECT WFIEREAS, the City of Petaluma has determined to undertake the Petaluma River Payran Reach Channel Improvement Project; and WHEREAS, the State Lands Commission, on behalf of the State of California, claims undefined fee and/or easementinterests in some or all of the Petaluma River Channel encompassed by the project; and WHEREAS, City staff, on behalf of the City of Petaluma, has made application for a lease of any said interests in order to carry out the channel improvement project; and 10 ] 1 WHEREAS, the draft lease for said lands has been reviewed by the City Council and is herein 12 incorporated as Exhibit A; 13 14 NOW, THEREFORE, BE 1T RESOLVED that said draft lease is hereby approved by the City 15 Council of the City of Petaluma and the City Manager is authorized to execute said lease. Under the power and authority conferred upon thie~Council by the Charter of said City. REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the Approved as to Council of the City of Petaluma at a (Regular) Qttr~otxxstSDxfBRstdbl) meeting form oa the .....1.SL.._.......... day of ....._....t~.Rlll.........-" .......................... 19_~G... by the ~ ~~ following vote: -....' ..................................... City Attorney AYES: Maguire, Stomps, Shea, Vice Mayor Barlas, Mayor Hilligoss NOES: None ABSENT: Hamtlto sad '~ ATTEST: ~....__?.r~~-F.-~....... .~1.1~y~_CN,-..._ ~/.......Y.'.... ......... ~f~,/.~.. _ ._".-d= City Clerk Mayor ommrl ipta.._._.._._.._._........._ CA 1095 Res. No __.~~..~.~.-~.7........... N.CS. STATE OF CAL'I FORN IA STATE LANDS COMMISSION RECORDED AT THE REQUEST OF State of California State Lands Commission Document entitled to free recordation pursuant to Government Lode Section. 27383. WHEN RECORDED .MAIL TO State Lands Commission 100 Howe Avenue, Suite-100 Sauth Sacramento, California 95825-8202 Attention: Ti tle Uni[ A.P.N. County of Sonoma Above space for. Recorder's use only W LEASE NO. This Lease consists of this summary and the following attached and incorporated parts: Section 1 Basic Provisions Section 2 Special Provisions Amending or Supplementing Section 1 or 4 Section 3 Description of Lease Premises Section n General Provisions SECTION 1 BASIC PROVISIONS THE STATE OF CALIFORNIA, hereinafter referred to as Lessor acting by and through the STATE LANDS COMMISSION (100 Howe-Avenue, Suite-100 South, Sacramento, California 95825), pursuant to Division 6 of the Public 9c~ -g~ Resources Code and Title 2, Division 3 of the California Code of ' Regulations, and for consideration specified in this Lease, does hereby lease, demise and let to: City of Petaluma hereinafter referred to as Lessee: WHOSE MAILING ADDRESS IS: 11 English Street Petaluma, CA 9495 those certain lands described in Section 3 subject to the reservations, terms, covenants and conditions of this Lease. LEASE TYPE: General Lease - Public Agency Use LAND TYPE: Tide and submerged LOCATION: Petaluma River, City of Petaluma, Sonoma County LAND USE OR PURPOSE: Widening and channelization of the Petaluma River, Payran Reach between the Lynch Creek confluence downstream to just below Lakeville Street TERM: Thirty (30) years; beginning April 1, 1995 ending March 31, 2026, uhless sooner terminated as provided under this Lease. CONSIDERATION: The public health and safety; with the State reserving the right at any time to set a monetary rental. Subject to modification by Lessor as specified in Section 4 - General Provisions. AUTHORIZED IMPROVEMENTS: channelization of the Petaluma River EXISTING: X TO BE CONSTRUCTED; CONSTRUCTION MUST BEGIN BY: AND BE COMPLETED BY: LIABILITY INSURANCE: N/A SURETY BOND OR OTHER .SECURITY: N/A q6-8'7 April 1, 1996 October 31, 1999 Z SECTION 2 SPECIAL PROVISIONS BEFORE THE EXECUTION OF THIS LEASE ITS PROM IONS ARF AMENDED REVISED OR SUPPLEMENTED AS FOLLOWS: 1. Lessee agrees to properly implement the mitigation mea"sures as set forth in City of Petaluma Resolution No. 95-242, "Payran Reach Flood Control Improvement Project and Adopting Specific Findings, Mitigation :Measures; Monitoring Program, and Statement of Overriding Considerations", as adopted by the Council of the City Petaluma on September 5, 1995. ~c~-87 a 101 h \~i --___ - _-- -- •4 ~ ~ \V • ~ ~• ~Ki~rley ,~~r_, S~~ ~~F of ~~ s~s ~ <I P~ ~ ~ ... '1 ~ /C '. ~\ .~ ~~ :~ d This Exhibit is solely for purposes of generally defining the lease premises, and is not intended to be, nor shall it be construed as, a waiver or limitation of any State interest in the subject or any other property. R(~-87 ~~~+ovs SECTION 4 GENERAL PROVISIONS 1. GII~R' AL Thse ptwisiom are applicable toall leases, pemrits, rightsof-waY, casements, or littnaes oz other idterests in real property comt:yed by the State Lands Cammissioa (d) Addit;no~ Alra» and Rrmovd (1) Addilios - No improvemrnts aher tban those cxptetsly ' authomtd in this 1",~• chap be mnsuvUed by the lessee on ~ the Lease Premiss without the prior written consent of Lesor. CONSmERAT70N (a) rategor;rs (1) Rental Lessee shallpay the annual mntalas stated~in this [.tax to Lessor without deducting delay or ofisct, oa orbctorc the beginning date o[ this I:eaae and on or before tech anniversary of its beginning date during each year of the.I.ease term. (2) Noo-Monetary Coavdcration If the consideration to Lessor for-tAis lease is the public ux, benefit, health or sa&ty, Lessor shall have the right to review such considcrationat any time and xt a monetary metal if the Slate Lands Commission, ants sole discretion, detennins that such a[tion is in the but interut of the State. (b) ModiGofion Itswr may modify the method, amount or rate o[ consideration effective on each fifth anniversary of the beginning date of this Lease Should Lessor fail to exercise such right effective on any Cdt6 anniversary it may do so effective on any one (1) of the next four (4) anniversaris following such fifth anniversary, without pmjuditt to its right to effect such modification on the nexror any suazW ing fifth anniversary. No such modifiation shall become effective unless Issxc is given at least thirty (30)~.days notice prior to the effective date. (c) Penalty and Interest Any installments olmntat accruing underlhis [east not paid when due shall be sutijcct to a penalty and shall bear inters[ as specified in Public Rsoums Code Section 67Lt and the Lessor's then casting administrative regulations governing penalty end interest. 3. I30UNDARIPS 'this Icasc is not imm~dcd to stablah the State's boundaris and it made without prejudice to citherparty mgarding any boundary claims which may be asurted presently or in [hc future, IAND USE (a) General Lsue shall use the Lean Premiss only for the purpose or purposes stated in this Lcax and only for the operation and maintcnantt ofthe improvementsupressly authoriud in this I.cax. Leccee shall commence ux of the Lease Pmmius within ninety (90) days of the beginning date of this [.eax or within ninety (90) days of the date xt forconstruction to mmmcntt az xt forth in this Lease, whichever ulater. -Itssee'shalf notify Lessor within ten (10) days after commendngthe consCtuction ofautAorixed improvements and within sixty (60) days after completing them 4essee's discontinuance of such ux for a period of nincty.(90).days shall be conclusively prsumcd to be an abandonment: (b) Cautiaaoua Ure - I.ssee'sux of the Lease Pmmixs theft be continuous from mmmencem<nt of the Lease until its expiration. (c) Repairs and Mainlcoan¢ hessce shall,. at its own cxpcnx; keep and maintain the Lease Premiss and all imprrn~cmcnts in good order and mpair.and in safe condition. Lessor shall have no obligation for such repair and maintenance. -1 / _ _ p-~ (2) Alteration or Removal - Eueptas provided under this Lease, no alteration or removal of improvements on or mtural features of the I.rase Prcmixs chaff tx undertaken without the prior writtco consent of lessor. Ieuee shallpractiee conservation o[ water, energy, sari other mmral resources and shall prevent pollution and hems to the environment. Lessee chap not violate any law or regulation whoa purpose is to conserve rsourar or to protect the environment. Violation of this section shall constitute grouhde for temsination of the lease. Lessor, by its executive ommr, shall notify Lessee, when in his or her opinion, Lessee has violated the~provisios of this section and Lessee chaff mspond end discontinue the conduct or remedy the condition within 30 days (() Tozia Lssee shall not manufacture or generate 6arardous warts on the Leax pmarixs unless specifimlly authorirtA under other temu o[ this Lease. Lessee shall be fully responsble for any harardous warts, substances or materials as defined under federal, state or foal law, mgulation; or ordinance that are manufattuted, generated, used; placed, dispoxd, stored, or transported on the !.ease Premises during the L.wx term and shall Comply with and be bound bq all applicblc provisions of such federal, state or local'law, regulation or ordimntt dcahng with such wastes, substances or materials Lessee shall notify I.cssor and the appropriate govcmmcntal emergency msponx agency(is) immediately in the event of anymleax or thmatened release of any such wazts, substances or materials. (g) F~loymc°r Subject to the prorisios oC paragraph 5 (a) (2) below, nothing in this I.case shall predudeLecsee from cxdudingpetsons from the Lease Premius when their prsentt or activity constituts a material interference with Lessee's ux and enjoyment of the I.casc Pmmius as provided under this Lease. (h) Dicvimimdon Lessee in its ux of the l.casc Pmmixs shall ndtdixriminate against any person or class o[ persons on the bazis of ratt, coloq creed, religion, national origin, sex, age, orhandiap. (i) l2sadcnOal Use No portion of the I.eax Premises shall beuxd aza Ioation for a rsidence or for the purpose of mooring a ctructure which is used as a rsidentt. For purposs oC this !.eau, a rsidentt or Ooating residence indudu but is not limited to boats, bergcs, houxboata, trailers, abis or combinations of such facili[is or other such structures which provide. overnight accommodation to the Ifsxc or others. 5. RFffiiVATION$ ENCUMBRAN(S'S AND RIGFi'IS-0ILWAY (a) ~ (1) Lessor expressly reserves all natural resources in or on the Lean Pmmises, including but not limited to timber and minerals as defined under Public Resourcs Code Sernian (r10t and Cr107, as well as Ne rightto grant leases in and -- ovecthe IeaxPrcmius Cor the extramion of such natural ruourttr, however, such leasing ahall be neither imm~sistenenor incompatible with the rights or privilcgu of Lessee under this Lcaca S Form 51.35 (Rev. 11/91) Page 3 (2) Provide the name and'romplerc business organrration and operational structure of Ne propased assignee, sublessee, secured third party orother transferee; and the namrt of the use of and interest in the Lear Prcmiset proposed by the assignee, sublessee, secured third party or;ottier transferee If the proposed assignee, sublesaee'or assured third party is a generzf or limited partnership, or a joint venture, provide=a Dopy of thaparmership agreement or joint venture agreement, as applicable; (3) Provide the terms and ronditions of the propaud assignment, subleau, or encumbranring or other transtcr, (4) Provide audited fmanrisl Statements for the two most recently completed fiscal years of the proposed assignee, sublessee,"soured party. or other tmnsferec; and-provide pro forma fioanrial statements showing the projected inromc, expense and financial'rondition resulting from ascot the Lear Premise; and (5) Provide such additional or supplemental information az Lessor may reasonably request concerning the proposed assignee, sublessee, secured pony or other ttansferoe. Lessor wiltevaluate propoud assignee, sublessee, ucurtd third parties and o[hei transferees and' giant approral or disapproval according to standards' of commercial reasonableness considering the following factors within the rontcxt of the propoud use: the~propoud part}+s financial strength and reliability, they business experience and expertise, their. personal and busines reputation, their managerial and operational skills„ their propoud uu and projected moral, az wdl as olherrolerant (actors (c) Lessor shall have a reasonable period oC timefrom the receipt of all documcros and other information rcquiredunder this provision to grant or deny its approval of the proposedparty. (Q I-essedr mortgagq or hypothecation oLthis,l.ease, ifapprwed by lusor, shall be subject to terms and conditions found in a separately drafted standard. loan (Agreement and Consent to Encumbrancingb( Lcasc) availablefrom lessorupon requet. (g) Upon the txprest written assumption of all obligations and duties under this Lean by an assignee approved' by [,essor, the Lessee maybe rtleased from all liability under this Itauadsing after the dkdivc dale of assignment and not-associated with I-esue's uu, possession or omupation of or attivitiet on the lease Promises; except as to any hares Aous waste, substances or materials az dcfintd under fcdcal start or local law, regulation or oNinance manufactured, gtncattd uxd, placed dispoxd, stored or tmnspor<d on the Leasc'.Prtmises. (h) If the I «e-files apetitionror an order far relic( is entered againsi-leiscc, undtrQtapicrs 7,9,11 or13 of the iiankruptry Code (11 USC Scct.~i01, eiscq:) then the trustee or debtor-in-possession must <Irrr to,assumeor, rejccFthis,Lease within tixry (60) days after filing ofthe petition or appointment of the trustee, or the Lease shall be domed to have .been rejencd;,and Lessor shall be entitled t0 immediate posussion of the Lease Prcm;v` No assumption or assignmcnrof this,Lcaseshalllbe c[fcctivc,unlessiNis in writing and unless the trustee or debtor-in-possession fins cured all defaults under This Lcau (monetary and non-monetary) or haz.prwided L,rswr with adequate assuarice (1)~thallwithin Ito (10) daysdrom the date of such assumpliom or assignment, all monetary defaults under this Ltax will tie cured; and (2) that within thirty (30) days from the date of such assumption, all non-monelarydcfaults under this Lean will be cured;.and (3) that all provisions of this leax will be satisfactorily pcdormcd igthmfuturo. 4~- 8'l IL DI3rAULT AND RF1dFDIPS (a) Ddault The aavrrena of any one or more of the following events shall immediately and without further aoticr ronstitute a default or breaeho[ the l.tase by Lc~ (1) Lessee's failure to make any.payment M rental, royalty, or other ronsideration at required under this I.usr, (2) Lessee's failure to obtain or maintain liability insurance or a surety bond or other security device u required under this Lcam; (3) lessee's vantion or abandonment oC the I-ease Premius (including the covenant for continuous ux as provided for in paragraph 4) during the Lease teen; (4) fessee's failure to obtain and maintain all necessary governmental permits or other entitlementr, (5) Lessee's faijurc to comply with all applipble previsions of federal, score or local law, regulation or ordinance dealing with harardous waste; substances or materials az defined under such fair, (~ Lesee's failure to commenee to construct and to romplcte ronstroction o[ the improvcmcnLt authorized by this l,rasc within the time limitsspceiFied in thal.ease; and~or (7) l.esuc's failure to comply withappli®bld provisions of federal, state orlocal laws or ordinances relating to issues of Hwlth and Safety, or whose purpose is.. to ronurve reouroe or to protect the cnvironmenL (b) Lessee's failum to obucve orperforn any other term, covenant or ronditioa of this Lease to beoburved or performed by the Lessee whcrosuch failum shall continue for a period of thirty (30) days after [.essor's. giving written notitt; however, if the nature of lessee's defaullor breach under this paagraph is such [hat mom than thirty (30) days are reasonably required for its cum, then Lessee shall not b<deemedto tic in default or breacfi it Lessee rommenees such cum within such thirty (30) day period and diligently proceeds with such cum to romplction. (c) ~ Rruacdie In the event of a default or breach by Lessxe and lesuc's failure to cure such default or breach, Lessor may at any tim< and with or without notice do any one or mom of the following: (I) Re<nter the Lease Premise, remove all persons and property, and repossess and enjoy such promises; (2) Terminate"this leax and Lessee's right of possession of the Lrate Premise. Such termination shall be effective upon Lessors giving written noti¢ end upon receipt of suchnotim Lesue shall immedia[dy surrender possession of the Lease Promises to Lessor, (3) Mainmin [his Lease in toll tome and c(Icm and recover any rental, royalty, or other consideration az it becomes due without terminating Lcsue's right of possession regardless of whether Lessee shall have abandoned the Lean Premise; and~mr (4) }?xerciu any other right orrcmedy which L<ssor may have at law or equity. 12 RES['ORATION OF ILr 3SLr Pauutcwc Form 53:15 (Rev. 37/91) Pagc 5 STATE OF CALIFORNIA -STATE LANDS COMMISSION LEASE P.R.C. NO. This'lease shall become effective only when approved.by and executed on behalf of the State Lands Commission of the State of California and a duly executed copy has been. delivered to Lessee. The submission of this Lease by Lessor, its agent or representative for examination by Lessee does not constitute an option or offer to lease the Lease Premises upon the terms and conditions contained herein, or a reservation of the Lease Premises in favor of Lessee. Lessee's submission of an executed copy of this Lease to Lessor shall constitute an offer to Lessor to lease the Lease Premises on the terms and conditions set forth herein. IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date hereafter affixed. LESSEE STATE OF CALIFORNIA STATE LANDS COMMISSION CITY OF PETALUMA By: John Scharer, City Manager Title: ATTEST: Date: Patricia E. Bernard, City Clerk ACKNOWI;EDGEMENT This Lease was authorized by the California State Lands Commission on Richard R. Rudnansky, City Attorney David W. Spilman, Finance Director 9L-8~ (Month Day Year) r Foy st.ss tx~... ti/vtl .CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT Na. 590] State of _ County of On __ before me, OATE NAME TITLE OF OFFICER - EG..'JANE DOE. NOTARY PUBLIC" personally appeared NAME(S) OF SIGNER(S) ^ personally known to me - OR - ^ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and ac- knowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.. WITNESS my hand and official seal. SIGNATURE OF NOTARY OPTIONAL Though thedata below is not required bylaw, itmay prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ^ INDIVIDUAL ^ CORPORATE OFFICER TITLE(S) ^ PARTNER(S) ^ LIMITED ^ GENERAL ^ ATTORNEY-IN-FACT ^ TRUSTEE(S) ^ GUARDIAN/CONSERVATOR ^ OTHER: 'SIGNER.IS REPRESENTING: NAME OF PERSON(SjOR ENTITV(IES) ~~ D 7 DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE ©1993 NATIONAL NOTARY ASSOG(ATION • 8236Remmet Ave., P.O. Box 7184 • Canoga Park, CA 91309-7184