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HomeMy WebLinkAboutOrdinance 2163 N.C.S. 10/27/2003``.. r 17 LdIY I~+sY I~ ~~~5'n t M.~ ~.i "~'•.... ~ .. .I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 rN+OV ~ Introduced by Council Member Harris ORDINANCE NO. 2163 N.C.S. Seconded by Council Member Moynihan AN ORDINANCE OF THE COUNCIL OF THE CITY OF PETALUMA AUTHORIZING AN AMENDMENT TO THE LEASE OF REAL PROPERTY LOCATED AT THE PETALUMA MUNICIPAL AIRPORT BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS 20 FOLLOWS: 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Section 1. Ordinance No. 2151 N.C.S. authorized City Manager to sign a lease by and between the City of Petaluma and John Ramatici and partners (Hangar 1, LLC), for certain real property located at the Petaluma Municipal Airport, in the City of Petaluma, Cotulty of Sonoma, State of California. An amendment to the lease has been proposed by the Lessee (Hangar 1, LLC), and approved by the Airport Commission, modifying the language in Section 1, Term. Said Lease Agreement is hereby amended. as proposed, per Exhibit "A", which is incorporated herein by reference, and the City Manager is hereby authorized to sign the amended Lease Agreement for the purpose of constructing and maintaining an airport hangar. Section 2. If any section, subsection, sentence, clause or phrase or word of this ordinance is for any reason held to be unconstitutional, unlawful or otherwise invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Petaluma hereby declares that it would have passed and adopted this ordinance and each and all provisions thereof irrespective of the fact that any one or more of said provisions be declared unconstitutional, unlawful or otherwise invalid. Ordinance No. 2163 N.C.S: Page 1 1 2 APPROVED AS TO FORM: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Section 3. This ordinance shall become effective thirty (30) days after the date of its adoption. by the Petaluma City Council. Section 4. The City Clerk is hereby directed to post this ordinance for the period and in the mamler renuired by the City Charter. INTRODUCED and ordered posted/~ this 6t1 day of October, 2003. ADOPTED this 27r" day of October, 2003 by the following vote: AYES: Canevaro, Mayor Glass, Harris, Healy, Moynihan, Vice Mayor O'Brien, Torliatt NOES: None ABSENT: None David Glass, Mayor ATTEST: `, Gay e Pet sen, City Clerk Ric aJ R. Rudnansky, Ci A orney Ordinance No. 2163 N.C.S. Page 2 EXHIBIT A NON-COMMERCIAL LEASE AG1~EEIVIENT PETALiTMA iVIUNICIPAL AIRPORT .THIS LEASE AGREEMENT is made and .entered, into as of the day of , 20_, by and between the 'CITY OF PETALUIVIA, a political subdivision of the State of California, hereinafter referred to as "Lessor" or "City" and Hangar 1, LLC, hereinafter referred to as "Lessee." WITNESSE~'H WHEREAS; the Lessor herein is a political subdivision :duly organized and operating under the laws of the State of California, and owns all that certain rear property located at the Petaluma _. Municipal Airport, Petaluma, California, a city airport, hereinafter referred to as "Airport"; and WHEREAS, Lessor deems it advantageous to itself and: the. `operation of the Airport to lease unto Lessee a certain. parcel of. land described herein, together with certain privileges, right, uses and interest therein, as hereinafter set forth; and WHEREAS, Lessee proposes to lease a ground area consisting' of those portions of the Petaluma Municipal Airport described in Exhibit "A" and shown on he plat marked Exhibit "B," attached hereto and incorporated herein. by reference (the "Premises"). Said properties shall be used as a general aviation aircraft storage hangar; and WHEREAS, Lessee 'has indicated a willingness .and. ability to properly keep and maintain and improve the leased ground in .accordance with standards established by Lessor; and WHEREAS, Lessee desires to obtain and avail itself of the privileges, rights, uses and interest therein and herein. NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1. TERM Lessor, for arid. in `consideration :of all the covenants, conditions, and agreements to be set forth hereinafter to be kept and performed by Lessee and by Lessor, does hereby lease unto Lessee, on all the conditions, covenants, terms and agreements hereinafter set forth, those certain premises described in Exhibits A and B attached hereto and incorporated herein, for a term of thirty (30) years, commencing on July 1, 2003, and ending on June 30, 2033, So long as Lessee is not in default under the terms of this lease, Lessor hereby grants to Lessee two (2) options to extend this lease under the herein terms .and conditions, each for a period of ten (10) years. Ordinance No. 2163 N.C.S. Page 3 2. RENTAL Lessee shall, pay to Lessor a.rental in accordance with the following provisions: (a) The annual base ground rental. for the total, premises, as described in Exhibits A and B shall be at $0.25 :per square foot for years one through five.. Thereafter, the :rental rate for ahe remaining period of the lease term; shall be determined. at the commencement. of each successive f've-year. period at the rental rate applicable. for'the immediately preceding five: years adjusted for an increase in the Bureau of Labor Statistics Cost of Lving;lndex -San Francisco - Qakland,, all'items,:for said preceding, fire years. In. no; event shall the: rental rate for any five-year period be less than the: applicable rentalrate for'the inunediately preceding°five-year .period: The base rental for the first lease year shall be payable in advance; on.execution of this lease. ' (b) Beginning with the second lease year, he base ground rent shall be payahle, 'in advance, in semi-annual installments ..for each (6) six-month period. of`fhe lease. Lessor shall end abiling:-for such Semi-annual payment thirty (30) days prior to the, due date; however, failure by Lessor to send, or failure by Lessee to receive; such billing, shall ngt 'excuse Lessee's obligation to"~,pay rent hereunder :nor 'constitute a waiver by Lessor of its right, to rent under this ;_L' ease. In the event such payment is not made within five (S) days of the due date; there shall be a penalty of six :percent: (6%) of the amount due :and owing, which penalty shall become part of that semi-annual rental payment. , Furthermore, and in addition thereto; any :amount of rental. payment and penalties unpaid. after -thirty ,(30) days shall have a one and, one-half percent (,1 %z%) per. month interest charge on the unpaid amounts, which interest shall likewise become part of the rental payment: (c) ~ In :consideration of costs associated with: off--.site 'improvements;. including extension of utilities, Lessor shall grant to Lessee: a credit against the semi=annual rental, as provided hereafter: Such. credit shall be pro-rated equally among the semi-annual lease payments, not: to exceed forty percent (40%) `of any one senu- annual payment, until full credit, as .defined hereafter; is received. "Full credit" shall -mean actual' out-of-pocket, documented expenses for the: off site improvements, not to exceed :'$20;000.. Lessee shall ~pro,vide' Lessor with documentation of any expenses claimed underthis provision. when. claiming all or any part of such credit. For purposes of this. paragraph;. "expenses" shall :include any payment made by Lessee, as required ~by paragraph 5 of this lease;'to satisfy the existing payback agreement with Peter Pfendler for construction. of common hangar. site improvements. Ordinance No. 2163 N.CS, Page 4 3. OFF=SITE IMPROVEMENTS .Lessor shall set the necessary boundary monuments and grade stakes ~on the leased premises at Lessee's expense. Lessee shall provide a paved taxiway, or ramp to the leased premises of adequate width to permit access to said premises by taxiing aircraft, as may be required by .Lessor. Lessee shall not be responsible for maintenance of any off- site improvements. 4. ON-SITE IlVIPROVEMENT REQUIREMENTS; DEADLINE FOR COMMENCE- MENT OF CONSTRUCTION AND COMPLETION OF CONSTRUCTION The Lessee shall be req"wired to construct on the Premises a building in conformity with all applicable laws, ordinances, rules and regulations. The building shall be approved by the Site Plan and Architectural Review Committee of the City of Petaluma ("SPARC"), or, at the option of the Community Development Director, by administrative SPARC approval. If Lessee has not secured all necessary administrative approvals and commenced actual construction on or before the date which is twelve months after the commencement of this Lease, then this Lease shall become null and void, and Lessee shall promptly vacate the leased premises. In addition, if significant construction is not completed• to the satisfaction of the City within one (l) year of commencement of construction,. the City may, at its option, terminate this Agreement. ~ . .,. 5. UTILITIES Lessee shall pay for all water, sanitary sewage, gas: service, electric power, telephone service, and all ..other services supplied to the said premises by Lessor, or any public utility, and shall pay all costs for the installation and.. connection to such services. In addition, Lessee shall, upon execution of this Lease, make payment to Peter Pfendler address) , or his designee, the sum of SEVEN THOUSAND SIX HUNDRED EIGHTY DOLLARS ($7,680.00), pursuant to the existing payback agreement between the City and Peter Pfendler for. construction of common site improvements. 6. USE OF PREMISES The leased premises shall be used as follows: (a) For the storage of general aviation aircraft in a hangar to be constructed by Lessee. (b) Common Facilities Lessee and7or Sublessee shall have the right of access to and use of facilities at Airport designed for common use, such as landing area, aprons, taxiways, flood lights, landing fight, beacons, navigational aids, tower communication, public address systems, and other common use facilities supplied by Lessor for convenience and accommodation in operation, landings, and take off of aircraft. Ordinance No. 2163 N.C.S. Page 5 The .rights. herein extended to Lessee shall be inclusive of the rights to"land, take off, tax'i', tow; load; or unload aircraft. (c) Lessee and/or Sublessee shall not conduct scheduled air carrier operations on -the premises or at the airport. (d) Air charter services, if desired,. will be subject to the restrictions as may' be required by the City of Petaluma or other regulatory agencies which may apply: 7. OPERATION OF AVIATION BUSINESS. BY LESSEE This cease shall be subordinate and subject to the existing and applicable „Grant Agreement by and between -the United .States of America, Federal Aviation, Agency, and Lessor;, and subsequent grants and agreement. ' 8. SURETY BOND Prior to the commencement of construction of the hangar, Lessee, at'its sole cost and expense; ;shall furnish the Lessor a. surety bond of an admitted surety company licensed to transact business in the :State of California: and 'satisfactory to :Lessee; iii .an amount; corrimensurate to the estimated cost of°the~project, or substitute security,guarantee as may be.approved by the City. - 9. MAINTENANCE AND REPAIRS Lessee shall, at his dole cost and expense; keep and maintain said premises aid appurtenances, and every part. whereof, in good and sanitary order, condition and repair, and hereby waives all right, to make repairs at the expense of Lessor as provided ~in S'ecfon1942, et seq., of the Civil Code of the State of California. Anyfailure to maintain or make said repairs upon being notified by Lessor shall constitute•a default by Lessee. 10. ALTERATIONS AND: ADIDITIONS Subsequent: to completion of the •'irnprovements and facilities as herein agreed, to; Lessee shall. not make :any alterations'to the exterior :thereof or erect. any additional structures or improvements on the leased premises without prior written consent of Lessor: Any such exterior alterations or additions approved by Lessor .shall be constructed.. at the ,sole expense of Lessee. - - 11. SIGNS' Lessee hall be prieileged.to erect such-signs as comply with applicable City:of Petaluma ordinances and to place the same upon the improvement to be~• erected pursuant hereto. The'text, color, and' design of all signs shallbe subject to the priorappro~al of-Le"ssor. Ordinance No. 2163.;N.C.S. ~ Page.6 12. UNLAWFUL USE No building, structure, or improvement of any kind shall be erected, placed upon, operated, or maintained on the leased premises, nor shall any business or operation be conducted or carried on therein or thereon in violation. of any ordinance, law, statute, order, or rule of any governmental agency having jurisdiction thereover, nor shall any use . be made of the leased premises which has not been specifically allowed. 13. WASTE, QUIET CONDUCT Lessee shall not. commit, or suffer to be committed, any waste upon said premises, or any nuisance or other act or thing which may disturb the quiet enjoyment of the use of the surrounding airport property. 14. RULES, REGiJLATIONS, POLICIES AND STANDARDS Lessee agrees to observe .and obey all rules and regulations promulgated and enforced by Lessor or any other appropriate authority having jurisdiction over:the Airport during the term of this lease. 15. INSURANCE Lessee agrees to procure and maintain at its own cost and expense, and at all times during the term of this lease, comprehensive liability insurance naming Lessor, its officers, boards, commissions; employees and agents as additional insureds in the following amounts: property damage, $500,000.00; bodily injury, $1,000,000.00 per person; and $1,000,000.00 per occurrence. Evidence of such insurance shall be. provided by Lessee by filing with the Lessor a copy of the policy or policies, together with a duly executed certificate of the insurer to the effect that the insurance .required by this lease is in force and effect. Said policy or policies or certificates shall contain a provision that written notice of cancellation or any material change shall. be delivered to the Lessor ten (10) days in advance of the effective date thereof. Lessee shall. also secure and maintain. fire and extended coverage insurance on the buildings'and structures to be erected by Lessee as a part. of the aviation operation created by this Lease Agreement. Said insurance coverage shall be to the full insurable value of the structures and buildings and contents as erected ,and placed upon the. leased premises, subject to the customary deductible for the construction of hangar facilities, and shall name Lessor as an :additional insured. Lessee further agrees that in the event of any fire or partial or complete destruction of the structures erected by Lessee, any proceeds of insurance received by Lessee shall be held in trust and utilized solely in the replacement, reconstruction, or repair of the damaged or destroyed improvements. Ordinance No. 2163 N.C.S. Page 7 In addition, Lessee shall procure and maintain Work'er's Compensation insurance as required by the "State of California.` Lessee shall furnish City with proof of such coverage.. 16. ~ TAXES ~ . Lessee agrees to pay promptly all taxes and assessments ;related to items of property including both real and personal property within the. purview of this Lease, which maybe levied or assessed upon said properties leased or owned by Les"see, gas Lessee's interest may appear wYieri the said taxes and assessments become due: and payable during. the occupancy of the leased° premises under any levy of assessment by County, City or other legally authorized governmental authority. 1-7: INSPECTION AND .NOTICE Insofar as it maybe .necessary :for the protection of the Lessor's rights, the Lessor' or its' agents shall at any and all reasonable times; arid, upon ..reasonable notice to Lessee,, have the right'to go upon and inspect the. land and premises hereby leased and any,structure or improvement erected or constructed; or in ;the course of being erected or constructed, repaired; added to, rebuilt, or restored thereon. 18: ASSIGNMENT'OR SUBLETTING It is agreed that" Lessee is authorized to sublet the, leased premises:' to a :Sublessee, subject to the: terms and conditions of this lease: Any such subf ease shall be subject to, the written approval' of Lessor, which approval shall not beunreasonablywithleld. 19: IlVIPROUEMENTS It is -agreed- that -alt improvements constructed by .Lessee shall be deemed personal property during the term of this lease, and that during the term of this lease and any extension thereto. Lessee shall at all times :have egal title to said improvements, but Lessor shall have a lien thereon to secure faithful performance of Lessee's obligations under the approval of Lessor. Lessor's lien shall be .subordinate to a security. instrument; approved by Lessor, and. held by any recognized fending institution but;- shall not be subordinate to any other encumbrance of any kind. Said security instrument shall not provide, for`rernoval° of said improvements. , 20. INSOLVENCY, ETC. If 'the. Lessee be adjudicated as bankrupt or become insol'vent~, or if possession of .any interest in the leased premises shall be taken by virtue of any attachment,. ,execution; or receivership,. the Lessor may; at 'its election; unless isuch bankruptcy proceedings be terminated in :favor of its election, unless such bankruptcy proceedings'be terminated in favor of Lessee .and such insolvency be cured; or such possession regained within ninety Ordinance No. 2163 N:C.S. Page 8 (90) days thereafter, immediately terminate this lease by ..service. of notice to such effect upon Lessee in any manner provided by law. 21. LENDER. SECURITY Notwithstanding anything to the contrary contained in this lease, it is understood and agreed that Lessee may, without. the consent of Lessor, assign, transfer, mortgage or encumber Lessee's interest under this lease and leasehold estate created, to a lender on the security of the leasehold estate .for the sole purpose of providing security for the repayment of a loan or loans made and used to finance the construction of substantial improvements by Lessee upon the leased premises and Lessee may execute any and all instruments in connection therewith necessary and. proper to complete any such loan and perfect the ..security therefor as may be required by such lender. Any such lender shall. have the right at any tune during the term hereof and while this lease is in full force and effect: (a) To do any act or thing required of Lessee hereunder and all such acts or things done hereunder shall be as effective to prevent a forfeiture of Lessee's rights hereunder as if done by Lessee; (b) To realize on the security of the leasehold estate and to acquire and succeed to the interest of the Lessee hereunder by foreclosure or by a deed of assignment given in lieu of foreclosure and thereafter at such lender's option to convey or assign the interest or title to this leasehold estate to any other person subjecf to the terms, ,: conditions and' covenants of this lease; and ~~.(c) To cure, within sixty (60) days after notice of default by Lessee under the terms of this lease. A copy of any security devices or other instruments shall be filed with L"essor prior to the effective date thereof and the Lessee shall give Lessor prior written notice of changes thereto. 22. SURRENDER OF POSSESSION At the expiration of the leasehold term, Lessee agrees to yield and deliver to Lessor the possession of the leased premises and all buildings,. fixtures, physical improvements and appurtenances erected by Lessee pursuant to paragraph 4 hereof. 23. DEFAULT In the event of default by Lessee in the performance of any of the terms, covenants, or conditions hereof, including the failure to pay rent, .Lessor shall make written demand by registered mail upon Lessee to remedy said default and if; thereafter, Lessee remains in default for. sixty (60) days, Lessor, by and through its Airport Manager, shall have the right to take immediate possession of said premises. During said sixty-day (60) period, Lessee may appeal to the Petaluma City Council and request consideration of any Ordinance No. 2163 N.C.S. Page 9 circumstances claimed to 'cause, sucH default; provided. that any such. circumstances shall not be deemed to`be a waiver of such default, in'the event the City Council extends the aforesaid sixty-day: (60) period. ~ ~ - No waiver of Lessor or default by Lessee of'ariy of'the terms, covenants; or conditions hereof to be performed, kept, or observed by Lessee shall be construed to 'be or act as waiver by Lessor of any subsequent- default of any of the. • terms,, covenants, ;and conditions herein contained to be performed,•kept, and observed by Lessee: 24. RESERVATION AS TO NAVIGATIONAL AID' - Lessor reserves the right during the': term. of this lease, or any renewal 'and/or .extension thereof; o install,ar.navigational aids; including -lghfing; in, on,, over; under, and across,. ,,, the leased. premises. hi the exercise of any o'f the rights hereof, Lessor agrees to give ' „ Lessee not less than ninety (90) days' written notice of its intention to install'' such air navigational aids. , If the Lessee's: enjoyment, of the preri~uses under this, lease is substantially interfered with by any -such installation, the Lessee's -rent; shall be reduced. in proportion to such interference. 25. INDEMNITY Lessee hereby covenants and agrees to;,;arid shall, ndemnfy, .save Harmless and: defend; the Lessor;, its agents,:.officers and/or employees against all claims, demands, costs, and liabilities which maybe made against. Lessor ;by reason of or arising from anything done, performed; or omitted to be done or`performed on the leased premises by the. Lessee or Lessee's employees, contractors, agents,, or invitees, or arising ,out of Lessee's performance. of its obligations pursuant to this agreement: However, this indemnity does not- extend to any- loss, damage or :expense arising out of `the negligence or willful misconduct of'the Lessor, its agents, ernp'loyees or officers. 26. EMINENT'DOMAIN It is expressly agreed'byLessor.. and Lessee that in the event eminent domain,proceedings .are undertaken by any governmental agency affecting the whole of the Airport; or any part thereof, wlu'cH would adversely affect Lessee's interest hereby :Lessee shall be entitled to compensation by virtue thereof, consistent with current eminent domain 'laws and appraisal procedures. 27. .NATIONAL 'EMERGENCY In the event that a national emergency or a declaration by federal; state or .county government. causes a drastic curtailment o f civilian. aviation activities; Lessee: shall be entitled to submit a request for reduction in the lease rental rate. Lessee shall. be entitled to present facts and data to show Ghat such a curtailment has taken place -and that the Ordinance No. 2163 N.C.S. Rage 10 curtailment liar seriously, affected Lessee's utilization of the leased premises. If such ..facts and data indicate that a reduction in lease rent is warranted, then Lessor and Lessee shall agree to negotiate a reduction in the rental rate during the period of curtailment. 28. NOTICES Any and .all notices to be given under this lease, or otherwise, maybe served by enclosing the same in a sealed envelope addressed to the party intended to receive the same, at its address, and deposited in the United. States ,Post Office as registered mail with postage prepaid. When so given, such notice shall be effective from the date.of the mailing of the same. For the purpose: thereof;. unless otherwise provided in writing by the parties hereto, the address of the Lessor, and the proper partyto receive any such notices on its behalf is: City Clerk City of Petaluma 11 English Street Petaluma, :California 94953 Phone: (707) 778-4360 and the address. of the Lessee is: Hangar 1, LI,C Phone: 29. INVALID PROVISIONS, SEVERABILITY It is expressly understood and agreed by and between the parties hereto that in the event any covenant, condition, or provision contained herein is invalidated by a court of competent jurisdiction, the invalidity of any such covenant, condition or provision shall not invalidate any other covenant, condition, or provision of this agreement,. provided, however, that the invalidity of any such covenant, condition, or provision shall not materially prejudice either the Lessor or the Lessee in their respective rights and obligations contained in the valid covenants, conditions, and provisions of this agreement. 30. BINDING OF SUCCESSORS The covenants and conditions herein contained shall apply to and bind the heirs, successors, executors, administrators, and assigns of all the parties hereto. Ordinance No. 2163 N.C.S. Page 11 3'1. TIME - Time is of tfie: essence in this lease. IN WITNESS WHEREOF, 'the parties liereto have set their hand the day and year first aboee written. - CITY OF PETALUIvIA City Manager ATTEST: LESSEE By Name Title City°Clerk APPROVED AS'TO.FORM: City Attorney APPROVED: Director of Public Facilities and Services APPROVED: Addiess City State Zip Telephone Risk Manager . APPROVED: Finance Officer agrmt 4/18/03'(fink) 1 Ordinance No. 2163:N.CyS: Page 12 -