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HomeMy WebLinkAboutResolution 2007-068 N.C.S. 04/16/2007 Resolution No. 2007-068 N.C.S. of the City of Petaluma, California RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PETALUMA APPROVING A STANDARD HANGAR LEASE AGREEMENT AND STANDARD TIE-DOWN LEASE AGREEMENT FOR USE AT THE PETALUMA MUNICIPAL AIRPORT AND AUTHORIZING THE CITY MANAGER TO EXECUTE ON BEHALF OF THE CITY NEW FACILITIES LEASES USING SUCH APPROVED FORMS WHEREAS, the City of Petaluma owns the Petaluma Municipal Airport and operates the airport pursuant to Petaluma Municipal Code Chapter 2.60, Title 16 and other applicable law; and, WHEREAS, in order to provide services for airport users and generate revenue to support airport operations, the City leases City-owned tie-down. spaces, t-hangars and box hangars to aircraft owners and users of the airport; and, WHEREAS, there are currently more than two hundred (200) different hangars and tie- down spaces at the Petaluma Municipal Airport; and, WHEREAS, the Petaluma Airport Commission at its April 5, 2007 meeting considered in the context of the airport facilities lease program the standard Hangar Lease Agreement and Tie-Down Lease Agreement attached hereto as Exhibits A and B, respectively and recommends adoption of said form agreements. NOW, THEREFORE, BE IT RESOLVED: 1. In accordance with the requirements of Section 46 of Article VII of the Petaluma City Charter, and Chapter 16.06 of the Petaluma Municipal Code concerning airport leases, the City Council of the City of Petaluma hereby approves the standard Hangar Lease Agreement attached hereto as Exhibit A and the standard Tie-Down Lease Agreement attached hereto as Exhibit B, both dated for reference April 2007. Resolution No. 2007-068 N.C.S. Page 1 2. In accordance with Chapter 16.06 of the Petaluma Municipal Code, the City Manager is authorized to execute individual leases that do not differ materially from the Hangar Lease Agreement and/or Tie-Down Lease Agreement as shown in Exhibits A and B, respectively, and dated for reference April 2007. All non-conforming leases will come before Council for approval. 3. This Resolution shall become effective immediately. The authority of the City Manager to execute leases using the form leases attached as Exhibits A and B shall take effect upon the effective date of Ordinance No. 2268 N.C.S. Under the power and authority conferred upon this Council by the Charter of said City. REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the p d as to Council of the City of Petaluma at a Regular meeting on the 16`x' day of April, 2007, ~ fo by the following vote: City ttorney AYES: Barrett, Freitas, Vice Mayor Nau, O'Brien, Mayor Torliatt NOES: None ABSENT: Harris, Rabbitt ~ r°_ ABSTAIN: None - - = _ ATTEST: _ - City Clerk ayor - Resolution No. 2007-068 N.C.S. Page'2 EXHIBIT A HAfVGAR LEASE AGREEAflEiVT This Hangar Lease Agreement ("Agreement") is made and entered into this day of 20_, by and between the City of Petaluma, hereinafter referred to as "City" and . hereinafter referred to as "Lessee." The address of Lessee is as follows: telephone (home) (business) WHEREAS, City has built and maintains certain hangars for aircraft storage at the Petaluma Municipal Airport ("Airport"); and WHEREAS, Lessee desires to use one of those hangars for the storage of one or more of Lessee's aircraft; and WHEREAS, Section 46 of Article VII of the Petaluma City Charter provides, in pertinent part, that no City action providing for the sale or lease of real property may be taken except by ordinance or pursuant to a general law of the State; and WHEREAS, pursuant to Section 46 of Article VII of the Petaluma City Charter, the City Council of the City of Petaluma on , 2007 adopted Ordinance No. ,codified as Chapter 16.06 of the Petaluma Municipal Code, providing for City Couhcil approval of form lease documents for ground, hangar and tie-down leases at the Petaluma Municipal Airport and City Council approval of specialized lease arrangements and other specialized uses of the Petaluma Municipal Airport all by resolution; and authorizing execution of leases on approved form lease documents by the City Manager on behalf of the City; and WHEREAS, pursuant to Ordinance No. adopted and codified as Chapter 16.06 of the Petaluma Municipal Code, the City Council of the City of Petaluma adopted on 2007, Resolution No. 2007- ,approving the use of form hangar and tie down leases dated for reference April 2007 and attached to and made a part of said Resolution, and authorizing execution of leases on such approved form lease documents by the City Manager on behalf of the City; and WHEREAS, this Agreement has been prepared on the form lease documents dated for reference April 2007 and approved by the Petaluma City Council on , 2007 by Resolution No. 2007- Resolution No. 2007-068 N.C.S. Page 3 NOW, THEREFORE, in consideration of the promises and mutual covenants contained in this Agreement, the parties hereby agree as follows: 1. .Lease of Premises. City leases to Lessee and Lessee leases from City, in accordance with the terms of this Agreement, the right to use Hangar No. (the "Premises"), solely for permitted uses as defined in provision 5 of this Agreement. The Premises may be further described in Exhibit A, the "Petaluma Airport Renter Fact Sheet," which is attached to and made part of this Agreement. 2. Term. The term of this Agreement shall be on a month-to-month basis, commencing on 20 3. Lease Payments. Lease payments shall be Dollars )per month, payable in advance on the first day of each and every month this Agreement remains in effect. Lessee shall pay the first month's Lease Payment to City upon execution of this Agreement. Lease Payments shall be made payable to the City of Petaluma at 1 1 English Street, Petaluma, California 94952. City may periodically increase or modify the Lease Payment upon notice of the amount and effective date of the new Lease Payment amount, which notice shall be provided to Lessee at least thirty (30) days in advance of the new Lease Payment effective date and in accordance with applicable law. Lease Payments shall be deemed delinquent if not received by City within twenty (20) days of the first of each month.. Upon delinquency, the Lease Payment due will automatically increase by an additional 10 percent as liquidated damages for each month or portion of a month that the Lease Payment is delinquent. If the full amount of delinquent Lease Payments, including all liquidated damages, are not brought current within thirty (30) days of the day Lease Payments under the Agreement first became delinquent, the City may, in addition to other remedies available to the City, on notice to the Lessee: take immediate action for collection, refer and/or assign the delinquent Lease Payments to a collection agency, commence a small claims or other action to recover delinquent Lease Payments, and/or terminate this Agreement for cause in accordance with provision 6(b), below. Lessee agrees that City's costs incurred to recover delinquent Lease Payments, including, but not limited to, reasonable attorneys' fees and the cost of staff time, will be added to the Lease Payment then due and recoverable by City as liquidated damages. 4. Security Deposit. Lessee shall post a security deposit with City in an amount equal to two months' Lease Payments at the time of execution of this Agreement. Lessee shall return the Premises to City at the expiration or termination of this Agreement in the same condition as at the beginning of the Agreement term, normal wear and tear excepted. In the event repairs are necessary to restore the Premises to the same condition as at the Resolution No. 2007-068 N.C:S. Page 4 beginning of the Agreement term, normal wear and tear excepted, City may deduct any and all repair costs, including, but not limited to, staff time or administration costs, from the security deposit. Any security deposit balance remaining after all repair costs and/or other deductions permitted under this Agreement, shall be refunded to Lessee following the expiration or termination of this Agreement. No interest will be payable on the security deposit. If the security deposit balance is insufficient to cover the cost of repairing the Premises in accordance with this provision, the Lessee shall promptly remit to the City the repair cost in excess of the security deposit upon receipt of the City's invoice for such excess repair costs. 5. Permitted Use. Permitted use of the Premises pursuant to this Agreement is limited to storage of the aircraft described in Exhibit A, which is attached to and made a part of this Agreement and related supply and equipment storage. Only aircraft in which Lessee has an ownership interest, as documented in FAA Aircraft Registration forms may be listed in Exhibit A and stored in the Premises pursuant to this Agreement. No other use, including, but not limited to, business, trade, professional or commercial operations,, or use of the Premises by the general public or persons other than the Lessee, except in conjunction with Lessee's permitted use, or storage of aircraft by persons other than the Lessee or aircraft other than the aircraft described in Exhibit A may be conducted on the Premises. The City may treat any use of the Premises by Lessee that is not a permitted use as a material breach of this Agreement subject to termination for cause in accordance with provision 6(b). Lessee may display for-sale signs on the Premises for the sale of Lessee's aircraft stored in the Premises in accordance with this Agreement, and such display shall be a permitted use, so long as such display is in accordance with all applicable laws, rules, and regulations, including, but not limited to, the requirements of the Petaluma Municipal Code governing signs. 6. Termination. This Agreement may be terminated as follows: a. For convenience by either party by giving the other party thirty (30) days' written notice of such termination by certified or registered mail or by personal delivery, in accordance with applicable law. Any such notices should be sent to City at City Hall, City of Petaluma, Office of the City Manager, Post Office Box 61, Petaluma, California 94953 and to Lessee at In the event of termination for convenience by the City, City will refund to Lessee the pro-rata share of any Lease Payment amounts already received for periods after the termination effective date, and any remaining security deposit balance, less any applicable deductions pursuant to this Agreement. In the event of termination for convenience by Lessee, City will refund to Lessee the pro-rata share of any Lease Payment amounts Resolution No. 2007-068 N.C.S. Page 5 already received for periods after the termination effective date, provided that 30 days' written notice is given as required by this subparagraph, and any remaining security deposit balance, less any applicable deductions pursuant to this Agreement. b. For cause by either party on not less than seven (7) days' written notice to the other party for any failure to comply with any of the terms of this Agreement, in accordance with applicable law. The party giving. notice of termination for cause may, in its discretion, allow the other party a reasonable period, specified in the notice, in which to cure that party's failure to comply with this Agreement. Lessee specifically waives any right Lessee may have under applicable law to a fhree-day or other period in which to cure any breach of this Agreement, should City elect not to provide such period for cure of Lessee's breach. In the event of termination for cause, subject to applicable law, Lessee will remain responsible for Lease Payments due or accrued prior to the termination date, and shall be entitled to return of any security deposit balance remaining following deductions pursuant to this Agreement. c. City may terminate this Agreement for the purposes of relocating Lessee to another hangar location ("New Premises") on thirty (30) days' written notice by City to Lessee, if, in City's sole determination, such relocation is in the interest of Airport operations. Upon notice of such relocation, Lessee may agree to use the New Premises, provided that Lessee enters into a new Hangar Lease Agreement substantially similar to this Agreement for the New Premises prior to taking possession of the New Premises, or terminate this Agreement effective upon removal of Lessee's aircraft from the Premises. Should Lessee decide to terminate this Agreement rather than relocate, City will refund to Lessee the pro-rata share of any Lease Payment amounts already received for periods after the termination effective date, and any remaining security deposit balance,. less any applicable deductions pursuant to this Agreement. Failure to relocate or remove Lessee's aircraft upon notice by City shall be considered a material breach of this Agreement and subject to termination for cause in accordance with section b.b. 7. Assignment, Sublicensina or Delegation. Lessee may not assign or sublease Lessee's rights under this. Agreement or delegate any of Lessee's obligations under this Agreement without the prior written consent of City, and any purported assignment, sublease, or delegation without prior written City consent will be void. City may treat any such purported assignment, sublease or delegation as a material breach of this Agreement subject to termination for cause in accordance with provision 6(b). 8. Alteration of Premises. Lessee may not make any alterations, install any fixtures, or make any additions or improvements to the Premises without the prior written consent of the City. Lessee shall be responsible for obtaining all required permits, including but not limited to building permits, prior to commencing work on any alterations authorized by Resolution No. 2007-068 N.C.S. Page 6 the City pursuant to this provision. Any City-authorized alterations, fixtures, additions or improvements pursuant to this provision shall be the property of the City, and may not be altered or removed without the City's prior written consent. The City may require the Lessee to remove, at Lessee's sole expense, any unauthorized alterations, fixtures, additions or improvements, and/or require the Lessee to restore the Premises to its condition prior to the commencement of the Lease term and the unauthorized alterations, normal wear and tear excepted. If the City directs the Lessee to remove unauthorized alterations and/or to restore the Premises pursuant to this provision, and Lessee fails to do so within any reasonable period established by'the City for such removal and/or restoration, the City may remove such alterations and/or restore the Premises or have such alterations removed and the Premises restored, and deduct the cost from the security deposit or other amounts otherwise payable to the Lessee pursuant to this Agreement. The City may treat any failure of Lessee to comply with the requirements of this provision as a material breach of this Agreement subject to termination for cause in accordance with provision 6(b). 9. Aircraft Maintenance. Maintenance of the aircraft described in Exhibit A by Lessee., employees of Lessee possessing an A & P license, and/or by FAA-certified persons or entities employed by or affiliated with Airport on-site contractors, shops or facilities shall be a permitted use for purposes of provision 5 of this Agreement, so long as all such maintenance (except for normal pre-flight maintenance, including preventive maintenance as defined in Part 43 and elsewhere in the Federal Aviation Regulations), occurs. only within the hangar on the Premises, or in other designated areas of the Airport where such maintenance is permitted, or in other areas of fhe Airport with permission of the airport manager. Lessee may not spray paint aircraft or other equipment on the Premises or anywhere else at the Airport. Spray painting aircraft or other equipment is not a permitted use under this Agreement. Lessee may not permit maintenance contractors onto. the Premises or other areas of the Airport for purposes of performing maintenance on Lessee's aircraft described in Exhibit A or other aircraft except in accordance with this provision. Doing so is not a permitted use under this Agreement. 9. Right of Entry. To the maximum extent provided by law, City shall have the right to enter the Premises, including the hangar on the Premises, at all reasonable times, to inspect the Premises, including the hangar on the Premises, to ensure compliance with this Agreement and provide for Airport safety. City shall endeavor to provide the Lessee advance notice of inspections and to permit Lessee to be present during inspections. Lessee shall provide City with a key to all Lessee-furnished locks securing the hangar on the Premises and/or City shall retain a key to any City-provided lock or locks. City may treat Lessee's use of a lock to secure the hangar for which the City does not have a key Resolution No. 2007-068 N.C.S. Page 7 as a material breach of this Agreement subject fo termination for cause in accordance with provision 6(b). In addition to other remedies of the City for use of a lock for which the City does not have a key, the City may remove or have such locks removed without notice fo the Lessee and at Lessee's expense. The City may deduct the cost of lock removal not paid by the Lessee from the security deposit or other funds payable to the Lessee pursuant to this Agreement.. 1 1. Permanent Removal of Aircraft. Lessee shall notify the airport manager in writing within five (5) days of permanent removal of his or her aircraft from the Premises. Upon receipt of such notice, in the absence of notice of Lessee's intent to add a new aircraft to Exhibit A, and store such aircraft in the hangar on the Premises, City may terminate this Agreement in accordance with provision 6(b). Lessee may not store any aircraft not listed in Exhibit A on the Premises. Prior to storing a new aircraft on the Premises, Lessee shall notify the airport manager in writing, provide registration and confirmation of Lessee's ownership interest in the aircraft, and evidence of all insurance required under this Agreement for such aircraft. Upon approval by the City of such required information, Exhibit A shall be modified to reflect that Lessee is authorized to store such aircraft on the Premises. 12. Possession of Aircraft. Lessee covenants and agrees that Lessee will maintain possession and control of the aircraft specified in Exhibit A in accordance with the terms of this Agreement while such aircraft are located of the Airport. The parties agree that City is not responsible and that the City, on behalf of its officials, officers, employees, agents and volunteers disclaims all liability related to the parking, possession or control of Lessee's aircraft. The aircraft specified in Exhibit A shall be the sole and exclusive responsibility of the Lessee at all times. 13. Government Regulations. Lessee shall comply with all statutes, ordinances and regulations of the federal, state, county and municipal authorities presently in effect, or which hereafter may become effective, pertaining to the use of the Premises, and/or the Airport pursuant to this Agreement. City may treat Lessee's failure to comply with such statutes, ordinances and regulations as a material breach of this Agreement subject to termination for cause in accordance with provision 6(b). 14. Indemnification. Lessee shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and volunteers from and against any and all liability, .loss, damage, claims, expenses, and costs (including, without limitation, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature arising out of or in connection with the operation of the aircraft specified in Exhibit A, Lessee's use of the Premises (including the hangar on the Premises), and/or the Resolution No. 2007-068 N.C.S. Page 8 Airport, and/or Lessee's failure to comply with any of its obligations contained in this Agreement. Notwithstanding the foregoing, to the extent that this Agreement is a "construction contract" within the definition of Civil Code Section 2783, as may be amended from time to time, such indemnity shall not include Liability for the active negligence of City. 15. Insurance. Lessee shall procure and maintain in effect for the duration of this Lease Agreement insurance in accordance with this provision and Exhibit B which is attached to and made a part of this Agreement. Exhibit B sets forth the minimum kinds and amounts of insurance that Lessee must maintain pursuant to this Agreement, as well as required endorsements and other requirements. Insurance required pursuant to this provision and Exhibit B may be modified in the sole discretion of the City's Risk Manager or City Manager. Any such approved insurance modifications will be by written amendment to this Agreement in accordance with. provision 17. City may treat failure of the Lessee to maintain in effect for the duration of this Agreement insurance in accordance with this provision and Exhibit B as a material breach of this Agreement subject to termination for cause in accordance with provision 6(b). 16. Statutory Notice Possessory Interest Tax. Lessee is advised that under California Revenue and Taxation Code Section 107.6, execution of this Agreement may create a possessory interest in Lessee subject to property taxation. Lessee hereby agrees that if such possessory interest is created and is subject to property taxation, Lessee shall be solely responsible for the payment of said property taxes levied on any such interest. 17. Amendment. This Agreement may be amended only by a written instrument executed by authorized representatives of each party. 18. Construction. This Agreement is the product of negotiation and compromise on the part of both parties and the parties agree that, notwithstanding Civil Code section 1654, any uncertainty in the Agreement shall not be construed against the drafter of the Agreement. 19. Governing Law; Venue. This Agreement shall be enforced and interpreted under the laws of the State of California and the City of Petaluma. Any action arising from or brought in connection with this Agreement shall be venued in a court of competent jurisdiction in the County of Sonoma, State of California. 20. Non-Waiver. The failure to enforce any provision of this Agreement or the waiver thereof in a particular instance shall not be construed as a general waiver of any part of such provision, and the provision shall remain in full force and effect. Resolution No. 2007-068 N.C.S. Page 9 21. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 22. No Third Party Beneficiaries. The parties do not intend to create, and nothing in this Agreement shall be construed to create any benefit or right in any third party. 23. Headings. The headings- used in this Agreement are for convenience only and are not intended to affect the interpretation or construction of any provisions herein. 24. Survival. All obligations arising prior to the expiration or termination of this Agreement and all provisions of this Agreement allocating liability between City and Lessee shall survive the expiration or termination of this Agreement. 25. Entire Agreement. This Agreement, including all exhibits, constitutes the entire agreement between the parties and supersedes all prior agreements or understandings, oral or written, between the parties concerning the subject matter of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. CITY LESSEE City Manager Signature ATTEST: Printed Name City Clerk Address City State Zip APPROVED AS TO FORM: City Attorney APPROVED: Resolution No. 2007-068 N.C.S. Page 10 EXHIBIT A TO HANGAR LEASE AGREEMENT PETALUMA AIRPORT RENTER FACT SHEET NAME AIRMAN'S CERTIFICATE NO. RESIDENCE ADDRESS CITY & ZIP PHONE 8 EMAIL NAME OF EMPLOYER BUSINESS ADDRESS CITY & ZIP PHONE & EMAIL DRIVERS LICENSE NUMBER LEGAL OWNER OF AIRPLANE ADDRESS CITY 8~ ZIP MAKE MODEL YEAR COLOR REGISTRATION NUMBER (for airport to fill in below) SPACE NUMBER RENTAL FEE DATE OF AGREEMENT Resolution No. 2007-068 N.C.S. Page 12 EXHIBIT B TO HANGAR LEASE AGREEMENT MINIMUM INSURANCE REQUIREMENTS FOR AIRPORT LESSEE Lessee shall not take possession under this Agreement until Lessee shall have obtained all insurance required under this Exhibit and such insurance shall have been approved by the City's Risk Manager as to carrier and sufficiency; nor shall Lessee allow any subcontractor, unless Lessee has obtained prior written City approval for subcontractor, to commence work on or within the leased premises until all similar insurance required of the Lessee and/or subcontractor shall have been so obtained and approved. All requirements herein provided shall appear either in the body of the insurance policies or as endorsements and shall specifically bind the insurance carrier. Lessee shall procure and maintain for the duration of the Agreement all necessary insurance against claims for injuries to persons or damages to property which may arise from or in connection with the Agreement. A. Minimum Scope of Insurance Coverage shall be at least as broad as: 1. Aircraft Liability Insurance Coverage. 2. Such other insurance coverages and limits as may be required by the City of Petaluma. B. Minimum Limits of Insurance Lessee shall maintain limits no less than: 1. Aircraft Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. Lessee shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damage to property, which may arise from, or in connection with Lessee's operation and use of the leased premises. The cost of such insurance shall be borne by Lessee. 2. Such other insurance coverages and limits as may be required. by the City of Petaluma. C. Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City of Petaluma. At the option of the City of Petaluma, either: the insurer shall reduce or eliminate such deductibles orself-insured retentions as respects the City of Petaluma, its officers, officials, employees, and volunteers; or the Lessee shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. D. Other Insurance Provisions The required aircraft liability and other applicable insurance policies are. to contain, or be endorsed to contain the following provisions: 1. The City of Petaluma, its officers, officials, employees, agents and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of the Lessee; products and completed operations of Resolution No. 2007-068 N.C.S. Page 13 the Lessee; premises owned, occupied or used by the Lessee. The coverage shall contain no special limitations on the scope of protection afforded to the City of Petaluma and its officers; officials, employees, agents or volunteers. 2. For any claims related to this Agreement, the Lessee's insurance coverage shall be primary insurance as respects the City of Petaluma, its officers, officials, employees, agents and volunteers. Any insurance orself-insurance maintained by the City of Petaluma, and/or its officers, officials, employees, agents or volunteers shall be excess of the Lessee's insurance and shall not contribute with it. 3. Any failure to comply with reporting or other provisions of the policies including .breaches of warranties shall not affect coverage provided to the City of Petaluma, and its officers, officials, employees, agents or volunteers. 4. The Lessee's insurance shall apply separately to each insured against whom claim is made or suit is brought except, with respect to the limits of the insurer's liability. 5. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by mail has been .given to the City of Petaluma. E. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A- VII. F. Verification of Coverage Lessee shall furnish. the City of Petaluma with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City of Petaluma before the Agreement commences. The Lessee's insurer may provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by the City of Petaluma INSURANCE REIVIIN®ER THE CITY OF PETALIJIUTA'S INSI'JRANCE ®OES NOT COVER ANY OF LESSEE'S PERSONAL PROPERTY, INCL~®ING AIRCRAFT Resolution No. 2007-068 N.C.S. Page 14 EXIIIBIT B TIE-DOWN LEASE AGREEMENT This Tie-down Lease Agreement ("Agreement") is made and entered into this day of 20_, by and between the City of Petaluma, hereinafter referred to as "City" and hereinafter referred to as "Lessee." The address of Lessee is as follows: , telephone (home) (business) WHEREAS, City has built and maintains certain tie-downs for aircraft storage at the Petaluma Municipal Airport ("Airport"); and WHEREAS, Section 46 of Article VII of the Petaluma City Charter provides, in pertinent part, that no City action providing for the sale or lease of real property may be taken except by ordinance or pursuant to a general law of the State; and WHEREAS, pursuant to Section 4b of Article VII of the Petaluma City Charter, the City Council of the City of Petaluma on , 2007 adopted Ordinance No. ,codified as Chapter 16.06 of the Petaluma Municipal Code, providing for City Council approval of form lease documents for ground, hangar and tie-down leases at the Petaluma Municipal Airport and City Couricil approval. of specialized lease arrangements and other specialized uses of the Petaluma Municipal Airport all by resolution; and authorizing execution of leases on approved form lease documents by the City Manager on behalf of the City; and WHEREAS, pursuant to Ordinance No. adopted and codified as Chapter 16.06 of the Petaluma Municipal Code, the City Council of the City of Petaluma adopted on , 2007, Resolution No. 2007- ,approving the use of form hangar and tie down leases dated for reference April 2007 and attached to and made a part of said Resolution, and authorizing execution of leases on such approved form lease documents by the City Manager on behalf of the City; and WHEREAS, this Agreement has been prepared on the form lease documents dated for reference April 2007 and approved by the Petaluma City Council on , 2007 by Resolution No. 2007- NOW, THEREFORE, in consideration of the promises and mutual covenants contained in this Agreement, the parties hereby agree as follows: 1. Lease of Premises. City leases to Lessee and Lessee leases from City, in accordance with the terms of this Agreement, the right to use Petaluma Municipal Airport Tie-down No. Resolution No. 2007-068 N.C.S. Page 15 (the "Premises"), solely for permitted uses as defined in provision 4 of this Agreement. The Premises may be further described in Exhibit A, the "Petaluma Airport Renter Fact Sheet," which is attached to and made part of this Agreement. 2. Term. The term of this Agreement shall be on a month-to-month basis, commencing on 20 3. Lease Payments. Lease payments shall be Dollars )per month, payable in advance on the first day of each and every month this Agreement remains in effect. Lessee shall pay the first month's Lease Payment to City upon execution of this Agreement. Lease Payments shall be made payable to the City of Petaluma at 1 1 Street, Petaluma, California 94952. City may periodically increase or modify the Lease Payment upon notice of the amount and effective date of the new Lease Payment amount, which notice shall be provided to Lessee at least thirty (30) days in advance of the new Lease Payment effective date and in accordance with applicable law. Lease Payments shall be deemed delinquent if not received by City within twenty (20) days of the first of each month. Upon delinquency, the Lease Payment due will automatically increase by an additional 10 percent as liquidated damages for each month or portion of a month that the Lease Payment is delinquent If the full amount of delinquent Lease Payments, including all liquidated damages, are not brought current within days of the day Lease Payments under the Agreement first became delinquent, the City may, in addition to other remedies available to the City, on notice to the Lessee: take immediate action for collection, refer and/or assign the delinquent Lease Payments to a collection agency, commence a small claims or other action to recover delinquent Lease Payments, and/or terminate this Agreement for cause in accordance with provision 5(b), below. Lessee agrees that City's costs incurred to recover delinquent Lease Payments, including, but not limited to, reasonable attorneys' fees and the cost of staff time, will be added to the Lease Payment then due and recoverable by City as liquidated damages. 4. Permitted 'Use. Permitted use of the Premises pursuant to this Agreement is limited to storage of the aircraft described in Exhibit A, which is attached to and made a part of this Agreement and related supply and equipment storage. Only aircraft in which Lessee has an ownership interest, as documented in FAA Aircraft Registration forms may be listed in Exhibit A and stored in the Premises pursuant to this Agreement. No other use, including, but not limited to> business, trade, professional or commercial operations, or use of the Premises by the general public or persons other than the Lessee, except in conjunction with Lessee, except in conjunction with Lessee's permitted use, or storage of aircraft by persons other than the Lessee or aircraft other than the aircraft described in Resolution No. 2007-068 N.C.S. Page 16 Exhibit A may be conducted on the Premises. The City may treat any use of the Premises by Lessee that is not a permitted use as a material breach of this Agreement subject to termination for cause in accordance with provision 5(b). Lessee may display for-sale signs on the Premises for the sale of Lessee's aircraft stored in the .Premises in accordance with this Agreement, and such display shall be a permitted use, so long as such display is in accordance with all applicable laws, rules, and regulations, including, but not limited to, the requirements of the Petaluma Municipal Code governing signs. 5. Termination. This Agreement may be terminated as follows: a. For convenience by either party by giving the other party thirty (30) days' written notice of such termination by certified or registered mail or personal delivery in accordance with applicable law. Any such notices should be sent to City at City Hall, City of Petaluma, Office of the City Manager, Post Office Box 61, Petaluma, California 94953 and to Lessee at . In the event of termination for convenience by the City, City will refund to Lessee the pro-rata share of any Lease Payment amounts already received for periods after the termination effective date. In the event of termination for convenience by Lessee, City will refund to Lessee the pro-rata share of any Lease Payment amounts already received for periods after the termination effective date, provided that 30 days' written notice of termination has been provided in accordance with this subparagraph. b. For cause by either party on not less than seven (7) days' written notice to the other party for any failure to comply with any of the terms of this Agreement, in accordance with applicable law. The party giving notice of termination for cause may, in its discretion, allow the other party a reasonable period, specified in the notice, in which to cure that party's failure to comply with this Agreement. Lessee specifically waives any right Lessee may have under applicable law to a three-day or other period in which to cure any breach of this Agreement, should City elect not to provide such period for cure of Lessee's breach. In the event of termination for cause, subject to applicable law, Lessee will remain responsible for Lease Payments due or accrued prior to the termination date. c. City may terminate this Agreement for the purposes. of relocating Lessee to another tie-down location ("New Premises") on thirty (30) days' written notice by City to Lessee, if, in City's sole determination, such relocation is in the interest of Airport operations. Upon notice of such relocation, Lessee may agree to use the New Premises, provided that Lessee enters into a new Tie-down Lease Agreement substantially similar to this Agreement for the New Premises prior to taking possession of the New Premises, or terminate this Agreement effective upon removal of Lessee's aircraft from the Premises. Resolution No. 2007-068 N.C.S. Page 17 Should Lessee decide to terminate this Agreement rather than relocate, City will refund to Lessee the pro-rata share of any Lease Payment amounts already received for periods after the termination effective date. Failure to relocate or remove Lessee's aircraft upon notice by City shall be considered a material breach of this Agreement and subject to termiration for cause in accordance with section 5(b). 6. Assignment, Sublicensing or Dele. aq tion. Lessee may not assign or sublease Lessee's rights under this Agreement or delegate any of Lessee's obligations under this Agreement without the prior written consent of City, and any purported assignment, sublease, or delegation without prior written City consent will be void. City may treat any such purported assignment, sublease or delegation as a material breach of this Agreement subject to termination for cause in accordance with provision 5(b). 7. Alteration of Premises. Lessee may not make any alterations to the tie-down space. The City may treat any failure of Lessee to comply with the requirements of this provision as a material breach of this Agreement subject to termination for cause in accordance with provision 5(b). 8. Aircraft Maintenance. Maintenance of the aircraft described in Exhibit A by Lessee, employees of Lessee possessing an A & P license and/or by FAA-certified persons or entities employed by or affiliated with Airport on-site contractors, shops or facilities shall be a permitted use for purposes of provision 4 of this Agreement, so long as all such maintenance (except for normal pre-flight maintenance, including preventive maintenance as defined in Part 43 and elsewhere in the Federal Aviation Regulations), occurs only at the tie-down on the Premises, or in other designated areas of the Airport where such maintenance is permitted, or in other areas of the Airport with permission of the airport manager. Lessee may not spray paint aircraft or other equipment on the Premises or anywhere else at the Airport. Spray painting aircraft or other equipment is not a permitted use under this Agreement. Lessee may not permit maintenance contractors onto the Premises or other areas of the Airport for purposes of performing maintenance on Lessee's aircraft described in Exhibit A or other aircraft except in accordance with this provision. Doing so is not a permitted use under this Agreement. 9. Permanent Removal of Aircraft. Lessee shall notify the airport manager in writing within five (5) days of permanent removal of his or her aircraft from the Premises. Upon receipt of such notice, in the absence of notice of Lessee's intent to add a new aircraft to Exhibit A, and store such aircraft on the Premises, City may terminate this Agreement in accordance with provision 5(b). Lessee may not store any aircraft not listed in Exhibit A on the Premises. Prior to storing a new aircraft on the Premises, Lessee shall notify the airport manager in writing, provide registration and confirmation of Lessee's ownership Resolution No. 2007-068 N.C.S. Page 18 interest in the aircraft, and evidence of all insurance required under this Agreement for such aircraft. Upon approval by the City of such required information, Exhibit A shall be modified to reflect that Lessee is authorized to store such aircraft on the Premises. 10. Possession of Aircraft. Lessee covenants and agrees that Lessee will maintain possession and control of the aircraft specified in Exhibit A in accordance with the terms of this Agreement while such aircraft are located at the Airport. The parties agree that City is not responsible and that the City, on behalf of its officials, officers, employees, agents and volunteers disclaims all liability related to the parking, possession or control of Lessee's aircraft. The aircraft specified in Exhibit A shall be the sole and exclusive responsibility of the Lessee at all times. 1 l . Government Regulations. Lessee shall comply with all statutes, ordinances and regulations of the federal, state, county and municipal authorities presently in effect, or which hereafter may become effective, pertaining to the use of the. Premises, and/or the Airport pursuant to this Agreement. City may treat Lessee's failure to comply with such statutes, ordinances and regulations as a material breach of this Agreement subject to termination for cause in accordance with provision 5(b). 12. Indemnification. Lessee shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and volunteers from and against any and all. liability, loss, damage, claims, expenses, and costs (including, without limitation, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature arising out of or in connection with the operation of the aircraft specified in Exhibit A, Lessee's use of tie-down and the Premises and/or the Airport, and/or Lessee's failure to comply with any of its obligations contained in this Agreement. Notwithstanding the foregoing, to the extent that this Agreement is a "construction contract" within the definition of Civil Code Section 2783, as may be amended from time to time, such indemnity shall not include Liability for the active negligence of City. 13. Insurance. Lessee shall procure and maintain in effect for the duration of this Agreement insurance in accordance with this provision and Exhibit B which is attached to and made a part of this Agreement. Exhibit B sets forth the minimum kinds and amounts of insurance that Lessee must maintain pursuant to this Agreement, as well as required endorsements and other requirements. Insurance required pursuant to this provision and Exhibit B may be modified in the sole discretion of the City's Risk Manager or City .Manager. Any such approved insurance modifications will be by written amendment to this Agreement in accordance with provision 17. City may treat failure of the Lessee to maintain in effect for the duration of this Agreement insurance in accordance with this Resolution No. 2007-068 N.C.S. Page 19 provision and Exhibit B as a material breach of this Agreement subject to termination for cause in accordance with provision 5(b). 14. Statutory Notice Possessory Interest Tax. Lessee is advised. that under California Revenue and Taxation Code Section 107.6, execution of this Agreement may create a possessory interest in Lessee subject to property taxation. Lessee hereby agrees that if such possessory interest is created and is subject to property taxation, Lessee shall be solely responsible for the payment of said property taxes levied on any such interest. 15. Amendment. This Agreement may be amended only by a written instrument executed by authorized representatives of each party. 1 b. Construction. This Agreement is the product of negotiation and compromise on the part of both parties and the parties agree that, notwithstanding Civil Code section 1654, any uncertainty in the Agreement shall not be construed against the drafter of the Agreement. 17. Governing Law; Venue. This Agreement shall be enforced and interpreted under the laws of the State of California and the City of Petaluma. Any action arising from or brought in connection with this Agreement shall be venued in a court of competent jurisdiction in the County of Sonoma, State of California. 18. Non-Waiver. The failure to enforce any provision of this Agreement or the waiver thereof in a particular instance shall not be construed as a general waiver of any part of such provision, and the provision shall remain in full force and effect. 19. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 20. No Third Party Beneficiaries. The parties do not intend to create, and nothing in this Agreement shall be construed to create any benefit or right in any third party. 21. Headings. The headings used in this Agreement are for convenience only and are not intended to affect the .interpretation or construction of any provisions herein. 22. Survival. All obligations arising prior to the expiration or termination of this Agreement and all provisions of this Agreement allocating liability between City and Lessee shall survive the expiration or termination of this Agreement. Resolution No. 2007-068 N.C.S. Page 20 23. Entire Agreement. This Agreement, including all exhibits, constitutes the entire agreement between the parties and supersedes all prior agreements or understandings, oral or written, between the parties concerning the subject matter of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. CITY LESSEE City Manager Signature Printed Name ATTEST: Address City State Zip City Clerk APPROVED AS TO FORM: City Attorney APPROVED: Department Director APPROVED: Airport Manager APPROVED: Risk Manager APPROVED: Administrative Services Director Resolution No. 2007-068 N.C.S. Page 21 EXHIBIT A TO TIE-DOWN LEASE AGREEMENT PETALUMA AIRPORT RENTER FACT SHEET NAME AIRMAN'S CERTIFICATE NO. RESIDENCE ADDRESS CITY & ZIP PHONE & EMAIL NAME OF EMPLOYER BUSINESS ADDRESS CITY & ZIP PHONE 8~ EMAIL DRIVERS LICENSE NUMBER LEGAL OWNER OF AIRPLANE ADDRESS CITY 8~ ZIP MAKE MODEL YEAR COLOR REGISTRATION NUMBER (for airport to fill in below) SPACE NUMBER RENTAL FEE DATE OF AGREEMENT Resolution No. 2007-068 N.C.S. Page 22 EXHIBIT B TO TIE-DOWN LEASE AGREEMENT MINIMUM INSURANCE REQUIREMENTS FOR AIRPORT LESSEE Lessee shall not take possession under this Agreement until Lessee shall have obtained all insurance required under this Exhibit and such insurance shall have been approved by the City's Risk Manager as to carrier and sufficiency; nor shall Lessee allow any subcontractor, unless Lessee has obtained prior written City approval for subcontractor, to commence work on or within the leased premises until all similar insurance required of the Lessee and/or subcontractor shall have been so obtained and approved. All requirements herein provided shall appear either in the body of the insurance policies or as endorsements and shall specifically bind the insurance carrier. Lessee shall procure and maintain for the duration of the Agreement all necessary insurance against claims for injuries to persons or damages to property which may arise from or in connection with the Agreement.. A. Minimum Scope of Insurance Coverage shall be at least as broad as: 3. Aircraft Liability Insurance Coverage. 4. Such other insurance coverages and limits as may be required by the City of Petaluma. B. Minimum Limits of Insurance Lessee shall maintain limits no less than: 3. Aircraft Liability: $1,000,000 per occurrence. for bodily injury, personal injury and property damage. Lessee shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damage. to property, which may arise from, or in connection with Lessee's operation and use of the leased premises. The cost of such insurance shall be borne by Lessee. 4. Such other insurance coverages and limits as may be required by the City of Petaluma. C. Deductibles and Self-Insured Retentions Any deductibles orself-insured retentions must be declared to and approved by the City of Petaluma. At the option of the City of Petaluma, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City of Petaluma, its officers, officials, employees, and volunteers; or the Lessee shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. D. Other Insurance Provisions The required aircraft liability and other applicable insurance policies are to contain, or be endorsed to contain the following provisions: 6. The City of Petaluma, its officers, officials, employees, agents and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of the Lessee; products and completed operations of Resolution No. 2007-068 N.C.S. Page 23 the Lessee; premises owned, occupied or used by the Lessee. The coverage shall contain no special limitations on the scope of protection afforded to the City of Petaluma and its officers, officials, employees, agents or volunteers. 7. For any claims related to this Agreement, the Lessee's insurance coverage shall be primary insurance as respects the City of Petaluma, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City of Petaluma, and/or its officers, officials, employees, agents or volunteers shall be excess of the Lessee's insurance and shall not contribute with it. 8. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City of Petaluma, and its officers, of`icials, employees, agents or volunteers. 9. The Lessee's insurance shall apply separately io each .insured against whom claim is made or suit is brought except, with respect to the limits of the insurer's liability. 70. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled. by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by mail has been given to the City of Petaluma. E. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of nc less than A- VII. G. Verification of Coverage Lessee shall furnish the City of Petaluma with original. endorserr~ents effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and . approved by the City of Petaluma before the Agreement commences. The Lessee's insurer may provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by the City of Petaluma I;NSaJRANCE REnlIIN®ER TI°IE CITY OF PETALtJt~IIA'S ItdSURANCE ®OES NOT COVER ANY OF LESSEE'S PERSONAL PROPERTY, INCLU®YNG AIRC~tAFT Resolutiun ~Vo. 2007-068 N.C.S. Page 24