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HomeMy WebLinkAboutResolution 90-381 11/19/1990- _ r• resolution No. 90-381 ~~~.~. 1 of the City of Petaluma, California 2 3 4 5 RESOLUTIOAT AUTHORIZIPiG 6 THE CITY MANAGER TO EXECUTE 7 GEATERAL PERMIT LEASE WITH g THE STATE OF CALIFOR1dIA FOR THE g ZONE IV WATER IMPROVEMEATTS 10 11 12 WHEREAS, the City of Petaluma is desirous of installing a 13 16" pipeline under the Petaluma River; and, 14 15 WHEREAS, the State of California, acting by and through the 16 State Lands Commission (herein referred to as the "State"), 17 has claimed ownership of certain portions of said lands; 18 and, 19 20 WHEREAS, the State requires that the City obtain a lease 21 from the Sta te prior to installing the pipeline under the 22 River. 23 24 PiOW, THEREFORE, BE IT RESOLVED, that the City Council by 25 adoption of this Resolution hereby approves the lease 26 attached her eto as Exhibit "A" and incorporated herein; 27 28 BE IT FURTHER RESOLVED, that the City of Petaluma hereby 29 authorizes the City Manager to sign the hereinabo~e 30 referenced Lease with the State. 31 32 33 z4s11 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 ~, A-pp~ove as to Council of the City of Petaluma at a (Regular) g~jxx~l) meeting'! rm ,~.. on the ......_1_~th..-..... day of ................N.QYeFl1)?~.x......---......-....-., 19.9Q.., by the following vote: City At rney AYES: Balshaw, Davis, Woolsey, Tencer, Vice Mayor Cavanagh, Mayor Hilligoss NOES: 0 ABSENT: Sobe 1 ATTEST : .. ........................ ........s<.~°~`..~_.~_.... City Clerk CA 10-85 ,~ O L" Mayor Council File ................................... Res. No......_90- 381.... N.C.S: - STATE OF fJILIFORMIA" F~ REOORDERS l1SE [>lICY STATE LAIRS 'OOfS91SSI0N RECORDED "AT THE °REgZJEST ` OF . State~of" Cal"ifornie State Lands comma ss„i,on. Document 'ent:itled~to,free recordation pursuant to Government"code Section 27383. WHEN RECORDED MAIL TO State Lands Commission "1807 - 13th Street _ ' Sacramento, Calif"ornia 95814 Attention: Title Unit - ~~' ~e v® ~cJ~.. This Lease consists of this summary a"nd 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 4 General Provisions SECTION 1 BASIC PROVISIONS THE, STATE OF CALIFORPTYA, hereinafter referred to as Lessor acting by and through the. STATE LANDS COMMI.BB-ION ~(''18U7 13th Street, Sacramento, Ca_l~iforna 958:14) , pursuant., to •Divis;on• 6; of the Public `Resources Code and Title. 2, Dvision~3 of the California Code of Regulations, and for " consideration specified in this Lease, does hereby' lease, demise and let to: herenafter.r.eferred to as Lessee: ~AHOS"E MAI"LING ADDRESS IB's P..O..BOX 61 PETALUMA, CA 9.4953 those certan~lands"descrbed>n Section 3 subject to the reservations, terms,"covenants 'arid conditions of this Lease. LEASE TYPE: ~ ~C-~1 p~:Q~~ ~ C~-4~1 1 T- ~~' • Pv]~~lC: /~E~~.~.L`-i USA', ~> Gtr" , ~1 LAND TYPE Tide. and Submerged - ~ - LOCATION': Beds of the Petaluma River, Adobe Creek and any adjacent waterways in Sonoma County. LAND USE OR 'PURPOSE: Location and maintenance of a 16" water main. ~~: 12~199c~ 'm~'~i TERM: Forty Nine (49) years;; Beginning ..7rTi-, 19-T~ "DAL . I I ?A 3~' 'Y?z Wit-- (~ • Ending ~ee~e~~~ - ""_- ^~~, • unless ooner terminated as provided under this Lease. CONSIDERATION: Pub•l~ie use and benefit with the State reserving the right at any time. to set .a monetary rental if the Commission finds such action to be in the State's best interest. Subject to modification by ,Le'ssor as specified in Section 4 - General Provisions. AUTHORIZED IMPROVEMENTS,:, 16" steel wager main to be installed by directional drilling beneath the areas described in Section 3 of this lease. ~ • EXIST~IRTG N/A _ TO BE CONSTRUCTED; CONSTRUCTION MUST BEGYN BY:. May 1,1991 AND BE COMPLETED BY; May 1,1992 LIABILITY INSURANCE: N/A ~ . SURETY BOIJD OR OTHER SECURITY: N/A SECTION .2 . SPECIAL PROVT8ION8 ' BEFORE THE„E%ECUTION OF' THIS LEASE, ITS PROVhSIONS 'ARE AMEYdDED,. REVISED OR SUPPLEMENTED A8 FOLLOWS: ~~ ' •~ SECTION' 3 . ~ W 24452 LAND 'DESCRIPTION ~. ' „ A strip of sovereign land 10 feetn widih in the bed of'Petaluma River.. Adobe Creek and any adjacent waterways in Sonoma County; California, the centerline of~said strip more particularly . described. as follows:. ~ - -COMMENCING ar a 3%4-inch iron pipe monument L.S. 3775 at the most.southerly corner of the Record.of~S'txrvey.Map of the lands':of Shorter recorded in -Book 305. of .Maps, at.:page 20, Sonoma County Records; thence along~~the westerly;line of~said 1'ands of Shorter N 47° ,'14' S5"~ W 16.00 feet; thence leaving. said; westerly line N 42°' 30''~E 38 OU!feet to he POINT OF BEGINNING thence N 27° 25''E 2900:00 feet to the end of herein descrbedcenterline. EXCEPTING T~iEEREFROM any: lands lying landward of the Ordinary. High Water Mark of #tie~ historic bed of-the Petaluina:River, Adobe-Creek and~any'adjacent~waterways. ; END OF DESCRdPTION PidEPAYtED. OG'Y'OH3ER,1990 BY d.G6. y SECTION 4 GENERAL PROVISIONS L. 'GI NI.RAL Ih~+;'.r provision; arr-applicable to all leases;, permits, ri~ihts-~f uuy, ca.5en~enfs, or licenses or other interests in rca{ property conveyed by the State Lands Comnission. .and within sixty (60) days after` completing thew. 'Lessee'"s discontinuance of such use for' a period •of ninety (.907 days shall be conclusively presumed to be an abandonment. CONSIDERATION (a) Categories (17 .Rental Lessee shall pay the annua'l' rental as stated in this Lease'to:Lessor without deducr;ion, delay or offset, on or' before the beginning date of this. Lease acid on or before. each anniversary of its beginning date during each year'of the~Lease term. (2) Non.--Monetary Consideration If the consideration to Lessor for this 'lease is the,publi'c use, benefit„ health or-safety, Lessor chalk '.have.. the right to review such consideration at any El,ime 'and set a monetary rental if the State Lands Commi`ss'i'on, at its sole discretion; determines • chat such action is. i`n the best interest of the State. (b) Mudificat-ion Lessor ,pray ,wadi fy the .method, .amount or rate- of c~~nsideration effective on each fifth anniversary of the bcyinnrng date of 'tfiis Lease:.. Should Lessor fail '.to exercise sdch right effective on any fi'f h:anniversar•y- if may do so effective on any one (1) of ttie nett four (4) anniversaries following such fifth anniversary, without .prejudice: to its right to effect such modification on the next or "any- succeeding fifth anniver•sary_ No' such modi,ficatiom shall, become: effective unless. Lessee is given at least thirty (30) days notsice prior to the effebtive date. (e) Penalty and;lnterest -Any installments of rental accr'ui"ng under this Lease not, paid when 'due shall be subject .to a penaCfy and sha Ll bear i nterest 'as specified i n~ Publ i c Resources Code Secti'oi 6224 and the Lessor',s then existing adgii'nistrat'ive regulations governing penalty and rnterese - 3 . IlOl1NDAR_.I E S ' This lease is not intended to establish the State's boundaries and",is made without prejudice to either party reyarding, any boundary claims which ,may 6e asserted presenfly or` in the future.' l-aaD usE (a) General Lessee shall use the Lease. Premises only for the purpose or purposes stated in this Lease and, only for the operation, and waintenance of the;, improvements. expressly authorized in this Lease. Lessee `shall commence use of the .,Lease PFemi'ses within ninety (:90). days of the. beginning date of thi's lease or within ninety (90') days~.`of the date set for consfruet-,ion to conmenee as set forth in this lease, whichever;is:,later. Lessee shaC'l notify Lessor within ten (10>" days ;af.ter~ commencing the consfruction of authorized .improvements (b) Continuous Use :Lessee's use of the 'Lease Premises sha{l be continuous from commencement of the Lease until its expiration. (c) Repaiirs and 1laintenance .Lessee shall, at its own expense, keep and maintain, the Lease Premises and all improvements in good order and repair and in safe condition. Lessor shall have no obligation for such repair and maintenance. ('d) Additions, Alterations and Removal (1~) 'Additions - No improvements; other than those express{y authorized in fhi"s Lease. shall be .constructed by the Lessee. on the Lease 2rewises without the prior written consent. of'Lessor. (2) Alteration or Removal - Except as pnoYided'under th",is Lease, no alteration or removal.of improvements __ on or natural features of the Lease Premises shall be' Lndertaken without the prior ur"itten consent of Lessor. (eJ Gonser•yation .Lessee shall practice conservation of water and; other natural resources and shah prevent pol ution;'and harm to the envi'rorxnent. (fJ Toxics Lessee shall not manufacture or generate hazardous:. wastes on the Lease Premises unless specrf.i2ak-.ly authorized under other terms of ahis Lease. Lessee:shal" 6e fully responsible for any hazardous wastes, substances or materials as defined 'under; federal, state. or local law;. regulation, or ordinance that are manufac used, generated; [iced; pl-aced; disposed, stored, or transported on the. Lease Premises during ing Lease term' and shall' comp Cy wisth and be~bound'by al„L 'applicable provisions of such federal; state or•,local law regulation or•ordi.nance, deal-ing u~th such 'wastes, substances or materials lessee; shall notify ,lessor and the appropriate governmental emergency response agency(ies9 immediately in the: event of any .release or threatened release of any such wastes,. substances or matec:ials. (g) Enjoymerit Subject to the provisions of paragraph 5 (a> (2) below; nothing in this•Gease shall preclude .Lessee from excluding persons" from• he .Lease Premises when their presence or activity constitutes a material interference with Lessee's use and; enjoyment of the Lease Premises as provided under this Lease. (h) .D`,iscrimination - ' Lessee in its use of the Lease Premises shall not discriminate against any person or class of persons on the: basis of race,. color, creed, religion, national origin; sex, age; or 'handiap. (i) Residential, Use Form 51..65 (Rev .1[90) • -3 - (,L~) Lessor nciy require an incteasc in the nmoant of t_hc sur•."ety bond .or other security device'. :to 'cover ,any additionaLl;y au[hori;zedimprovements', alterations or purposes, and any.inodi`ficafion of consideration.. (c:) The surety bond or othersecurity device shall be maintained in full force and effect at .all times: during the lease term and!aubseguently untii;l all of the Lease Premises have been either accepted as improved, by Lessor, or restored by Lessee as proy.ided elsewhere in this Lease. 1U. ASSIGNMENT, ENClJF98RANCING Oft SUBLETTING (a) Lessee, shall, not either vo[untart.ly-oF, by operation of law, assign, transfer, mortgage, pledge,. hypothecate or encumber this Lease .and shall no't sublet ;the Lease Premises, in whole or in part, or allow any`person other than the Lessee's employees, agents, servants and invttees•#o occupy or use al-l or any ,,portion of the Lease :R remises without .the pr•i:or wri'f`ten consent of Lessor, which consent shall not be unreasonably withheld. (b) The f""oLlouing shall be ,deemed to be. an assignment or transfer within the meaning of this Lease: (t) Cf Lessee is a corporation; 'any dissolution; merger, conso Cidation or other r;eorganizat:on of Lessee or-,sal e, or other transfer of a;peacenfage of capital s ock of Lessee' which results i'n a chahge of controlling persons, or `the sale: or other transfer of substantially al l; the assets of°L'essee.. (2) If Lessee is a partnership, a transfer of°any interest of a general partner, a withdrawal of any general partner from the partnership, or the dissolution of the partnersRip. (c:) If this lease is for sovereign lands,, i'[, shall be ~ippurtcnant to adj,oi.nn9 l.i total or riparian land and Lcr;scc shall not transfer or assign i*.s ownership interest or use rights in such adjoining, lands separate y from the leasehold rights ,granted hereih without the prior written consent of Lessor. • Cd) L.f lessee .desires to assign, sublet, encumber or otherwise; trans,f,er ;al,l, or .any portion of the Lease Premises, Lessee shall do a'll of the following: (`1) ,give prior written notice to .Lessor. C2) provide the .name; and .complete business organization and operational .structure of the .:proposed assignee,; sublessee-, secured third party or.ofher transferee; and the nature' of the use of .and interest"in the Lease Premises proposed 6y the .assignee,. sublessee, secured, third party or other transferee. If 'the- proposed assignee,. sublessee or secured third party is a general or limited partnershil`p, or•a:joint venture,;proJide a copy of the partnership agreement or joint venture agreement.,. as applicable. ( (3) proviiie the ferns and cond,iaions~ of the proposed assignment,, sublease, or encumbrancing or other transfer; (4) provide audited fi'nanci+a'l statements for the two most recently completed fiscal years of the proposed ass:i9nee, sublessee; secured party or other transferee; and provide -pro forma financial statements showing the projected income, expense and financial condition resulting from use of the lease premises;,'and -'(5) provide -such, additional. or supplemental information as Lessor may reasonably request concerning the proposed assignee, sublessee, secured party or other transferee. Lessor .will evaluate proposed assignees, sublessees, secured third Parties and other transferees and grant .approval or disapproval according to standards of commercial reasonableness considering the following ' factors within the context of the proposed .use: the .proposed party's financial sirengfh and reliability, their' business experience and expertise, their .personal and business reputation, their managerial a"nd operational skills, their proposed use 'and projected rental, as well as other relevant factors. (e),,;Lessor shall have a reasonable period of time from the receipt of all documents and other information . required under this provis ion to grant. or deny its approval. of the proposed party. (f) ;L essee's;mortgage or hypothecation'of ttis,lease, if approved by' Lessor, shalil be subject to terms and • condi ions. fodnd in a separately drafted standar„d 'for•m~ (Agreement and Consent ~~to Encumbrancing ^o,f L_ease) available from Lessor upon request. • (g) Upon the express written ..assumpti:on of all . obligations and duties. under this Lease by'an ass,iignee approved by Lessor, the Lessee may be released from all liability under this Lease ar•'ising after`'the effecGi':ve date of assignment-.and not. associated with".Lessee's use,, possession or occupation of or activities on the leiise Premises; except as to,.any hazar•,dous• wastes, substances or materials as def'i'ned under federal state or oval`law, regulation or ordinance manufactured, generated;-~used, placed; disposed, stored or transported on 'the Lease Premises. Qh) If-the. Lessee files a;petiiion or an order :f or relief, ;. . is entered against. Lessee; under Chapters' 7,9,;'11' or 13;°of. the .Bankruptcy Code. (11'USC Sect'•.101.etrseq:<) 'then ''the: 'trustee oi• debtor-in-,possession-must elect to assume or reject thi's Lease iithin sixty ('60); days after filing of the~'petit'.ion or appointmenU of the:frustee,.or the Lease' .shall be deemed to 'have been.~,rejected, and. lessor shall be entitled ,to immediate° possession of 'the Lease 'Premises'. No assumpt=ion or assignment of thi ,Lease sti,al'l be effective unless ~ist i in wriaing and unless the trustee or. debtor,-i'n=possession has .cured all defaults under this Lease (monetary and non-monetary) or has provided; lessor with adequate assurances (1) that within, ten (1,0) days f,.rom the. date of such assumption or assi',grment, all, monetary defaults under this Lease will be cured; and (2) that Wi'thin'thiirty (30) days from the date~of such assumption, .al,l non-monetary defaults under this lease will be cured;- and (3) that' all provisions, of this Lease will be sett factorily performed in the future. . -5- y to de Liver' such'''a 'release, ;a. written nofi;ce by _ Lessorreciting such failure or refusal shall, ;from the date' of its pecordat;ion, be conclusi;ye evi'dence' . against lessee; of`~the Termination of this Lease and all other claimanTs. . 14. HOLDING-OVER Any hol~jing-over by Lessee affer the expiration°of the• Lease term, with or uithouf the express or implied consent of Lessor, shall 'const;i;tute a tenancy from month to nanth and not art.extens.ion of the Lease term and shall be on the: terms, covenants., and conditions of this lease, except that the.. annual rental' then in effect shall be iricreased by twenty five'pel•cent (259~j. L5. ADDITIONAL PROVISIONS" (a) Nai_ver (1> No term, covenant., or conditioh of this Lease and .no default or breach: of any such. term, covenant or condition shall -be deemed to have been waived, by Lessor's:acceptance~of a late oe nonconforming performance or- otherwise, unless sucli a uai'ver is expressly acknowledged 6y L'essor !in writing. (Z) Any such waiver shall not be .deemed. Yo be a wa-fiver of any other term, c°ovenant or condition of :any other default or breach' of any teem, covenant or condition of this Lease. (b) Time Time is~of 'the essence of this Lease and each and. al of its terms, covenants or condiY<i:ons in which performance i"s a factor. lc) Notice Al-l not-:i`ces .r-equi;red to be given under this Lease shall, be gi•Oen io writ:ing, sent by lJ'.S_ :Mail with. postage; prepaid, to Lessor at the offices of the: 'State Lends Gommiss:ion and the Lessee. at the address, specified' in this Lease.. Lessee shall give Lessor notice of any change in i,ts name or address.• (d).Gonsenf uheee Lessor. `'s consent is required.urider this Lease its consent for., one transaction or event shall not ~'be.•deemed to~ be a consent to any subsequent ~occur~ence of, the same or any other tr'ansacti`on or :event. (e) Changes This Lease :may tie terminated and its term, covenants a"nd cori8itions amended, revised or supplemented only by: mutual written. agreement of the parries. (f) Successors ' the terms, covenants and conditions of ,i:hi's lease-. shall extend' to and be binding upon and inure to; the benefit. of the heirs, successors, and assigns of the respective parties. Yg) Joint an8 Several 06ligation If more than one Lessee is a party to fh'~i's Lea"se, the obligations of.the Lessees shall be joint. and several. (h):; Captions The captions of this Lease are not controlling and shal',l have no effect- upon i,ts construction or interpretation. (i) Severab'ility If any term, covenant or condition of this Lease is determined by a court of competent jurisdiction to be invalid, i.t shall be considered deleted and shall not ,invalidate any of the remaining terms, covenants and conditions. -6- STATE OF 'CALIFORNIA - STATE LANDS COMMfiS~SION• LEASE P.R.'C. NO. This Lease shall onl;.y become effective when approved by 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 repr.:esentative for examination by Lessee does not constitute an option or offer to lease the Premises upon the terms and cond'it-ions cgntaned herein or a reservation of the Premises in favor of Lessee.:' Lessee;'s submission of an executed copy of. this Lease to Lessor~sYiaTl constitute an~of;fer to Lessor to lease the Premises on th'e terms and conditions set forth herein. IN. WITNESS WHEREOF, the partes_:hereto have executed this Lease as of the date hereafter affixed.. LESS£~E STATE OF CALIFORNIA STATE LANDS Commission ACKNOWLEDGEMENT By: Title: Date: This Lease was authorized~by, the California State ''Lands Commission on (month day year) Form 51.15 (1/90)