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HomeMy WebLinkAboutOrdinance 2110-B N.C.S. 04/02/2001~. „ . _. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ~AY2 m 2001 ORIDINANCE NO. 2110-8 N.C.S. Introduced by Janice Cader-Thompson Seconded by Mike Healy AN ORDINANCE OF THE COUNCIL OF TIIE CITY OF PETALUMA AUTHORIZING A LEASE OF REAL PROPERTY LOCATED AT THE PETALUMA MUNICIPAL AIRPORT BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS 25 FOLLOWS: 26 27 28 Section 1. Certain real property located in the City of Petaluma, County of Sonoma, 29 State of California is hereby authorized to be leased under the terms and conditions set forth in 30 the Non-commercial Lease Agreement by and between the City of Petaluma and Bud Toly, 31 which lease agreement is attached hereto as Exhibit "A" and incorporated herein by reference. 32 The City Manager is hereby authorized to sign said lease agreement which is to construct and 33 maintain an airport hangar. 34 35 Section 2. If any section, subsection, sentence, clause or phrase or word of this ordinance 36 is for any reason held to be unconstitutional, unlawful or otherwise invalid by a court of 37 competent jurisdiction, such decision shall not affect the validity of the remaining portions of 38 this ordinance. The City Council of the City of Petaluma hereby declares that it would have Ord. 2110-B N.C.S. 1 passed and adopted this ordinance and each and all provisions thereof irrespective of the fact that 2 any one or more of said provisions be declared unconstitutional, unlawful or otherwise invalid. 3 4 Section 3. The City Clerk is hereby directed to post this ordinance for the period and in 5 the manner required by the City Charter. 6 7 INTRODUCED and ordered posted/published this 12`h day of March, 2001. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 ADOPTED this 2°d day of April, 2001 by the following vote: AYES: Healy, Moynihan, Vice Mayor Cader-Thompson, Mayor Thompson NOES: Torliatt ABSENT: Maguire, O'Brien Mayor ATTEST: City Clerk l~®~ ~ ord 12/18/00 (fmk) 2 Ord. 2110-B N.C.S. ,~ r NOlV=COI\~~I]ERCIAL LEASE AGREElVIENT ,- PETA)<,T1VIA 1VIiJNICIPAL.AIRP®RT THIS LEASE AGREEMENT' is made and entered into as of the ~ ~ day of ~~ ~ 20 0 (, by and between the CITY OF PETALUMA, a political subdivision of the State of California, hereinafter referred to as "Lessor" or "City" and Bud Toly; hereinafter referred. to as "Lessee." WITNESSETH 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 real 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 the 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. NO^W; THEREFORE, IT IS AGREED AS FOLLOWS: 1. TERM. Lessor, for and 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 de"scribed in Exhibits A and B attached hereto and incorporated herein, for a term of thirty (30) .years, commencing on July 1, 2001, and ending on June 30, 2031. Lessor hereby grants to Lessee a first right of refusal to extend this lease by not more than twenty (20) years, subjectao obtaining a mutually agreeable lease with Lessor. 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,Exhibts A~and B shall be at $025 per square foot. Said rental shall be payablein advance, orr execution of this lease,. for the first year of :this lease. Thereafter, the rental rate :for the. remaining period. of the 'lease term shall be determined. at the commencement of .each successive lease year period at the rental rate; applcable:forthe immedatetypreceding lease year adjusted. for an increase in-'the Bureau of Labor'.Statistics. Cost of'L.iving Index. -San Francisco -Oakland, all :items; for said preceding- year: In no event shall the rental. rate for any lease year be less than the applicable rental rate for the immediately- preceding lease year. (b) Beginning with the second lease year, the base ground rent shall be payable; ,in advance, in ..semi-annual installments for each (6) six-month period of the lease. Lessor, shall send a billing 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 not excuse `Lessee's obligation to pay rent. hereunder nor constitute a waiver by Lessor of its right to -resit under this Lease. In the event such payment is not made within five'(5) 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 (3'0) 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 sliall grants to Lessee a credit against the semi-annual ;rental, as provided hereafter. Such credit hall be pro-rated equally among, the semi=annual .cease payments; not to exceed. forty pe"scent (4.0%) of any one semi=annual:: pay~merit, 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 provide Lessor with documentation of any expenses claimed' under'ths provision when claiming all or any part of such credit. . 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 IlVIPROVEIVIENT REQUIREMENTS; DEADLINE FOR CONIlVIENCEMENT OF CONSTRUCTION The Lessee shall be required 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, 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. 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. 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 and/or 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 light, 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. The rights herein extended to Lessee shall be inclusive of-the rights to land, take off, taxi, 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 o£Petaluma or other regulatory agencies which may apply. 7. OPERATION OF AVIATION BUSINESS BY LESSEE Conditions of Federal Grant: (a) This lease shall be subordinate and subject to the 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, in a sum not less than Five 3 Hundred Thousand Dollars ($500;000) or substitute security guarantee as may be approved by the City. 9. MAINTENANCE' AND REPAIRS Lessee. shall, at his sole cost and expense; keep and maintain said premises and !appurtenances, and every part thereof, in good. and sanitary. order, condition and ;repair,-.and hereby waives all right'to make repairs. at the expense of Lessor ~as provided in Section 1942, et 'seq:, of fhe Oivil. Code. of the State of California. Any failure to maintain or make said repairs upon being notified by Lessor shall constitute a default by Lessee. 10. ALTERATIONS.AND ADDITIONS Subsequent to completion of the impro~emerits 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 ahall be constructed of the sole expense of Lessee. 11. SIGNS Lessee shall be privileged to erect such signs .as comply with applicable.: 'City of Petaluma ordinances .and to place the same upon the improvement, to be erected ~pur5uant hereto. The Text, color, and design of all signs shall be subject to the prior approval of Lessor. 1 Z. UNLAWFUL USE No; building; structure; .br improvement of :any kind shall 'be erected, placed upon, operated, or maintained on the ieasedipremses nor shall ..any business or operaton'beconducted or ear-vied on therein. or.-thereon.. in violation of any ordinance; -law; statute, order, or rule of any governmental .agency having jurisdiction thereoyer, nor shall any use be made bf 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, REGULATIONS,. POLICIES AND' STANDARDS Lessee .agrees to observe and obey all ,rules 'and. regulations promulgated and enforced by Lessor or any other appropriate. authority having,jurisdicton ovei the Airport durng,the term of this lease. 4 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. 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 may be levied or assessed upon said properties leased. or owned by Lessee, as Lessee's interest may appear when the said taxes and assessments become due and payable during the occupancy of the leased premises under any levy or assessment by County, City or other legally authorized governmental authority. 17. INSPECTION AND NOTICE. Insofar as it may be necessary for the protection of the Lessor's rights, the Lessor or its agents shall at any and all reasonable times,'and 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. AS SIGNMEN.T 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 cease. Any such sublease shall be subject to the written approval of Lessor, which approval .shall riot be unreasonably withheld. s 19. IlVIPROVEMENTS It is agreed that all 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 legal title to -said,;improvements, but Lessor shall have a lien thereon to secure faithful performance of Lessee's obligations .under the approval ofLessor. Lessor's lien shall be: subordinate to a security instrument, approyed,'by .Lessor; and held by any recognized. lending institution but shall not be subordinate to any other encumbrance of any .kind: Said security instrument shall not provide for removal of said improvements. - 20. 'INSOLVENCY, 'ETC. . If the Lessee be adjudicated as bankrupt or become insolvent, 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 such bankruptcy° proceedings be~;termnated 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 "(90) days thereafter, immediately terminate this lease by service of notice to such. effect upon: Lessee `in any manner provided by law. 21. LENDER SECiJRITY 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 mprovement's 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 time during thee. 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':andsucceed 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 opton_'to convey or assign the interest or title to this leasehold estate to any other person subject 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 :Lessor ,prior to.the effective date°thereof and the Lessee shall give Lessor prior written notice of changes thereto. 6 a~ 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 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 any 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, to install air navigational aids, including lighting, in, on, over, under, and across the leased premises. In the exercise'of any of 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 premises 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, and shall, indemnify, .save harmless and defend, the Lessor, its agents, officers and/or employees against all claims, demands costs, and. liabilities which may be 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 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, employees or officers. 26. EMINENT DOMAIN It is expressly agreed by Lessor 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, which 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 of civilian .aviation activities,. Lessee shall be `entitled to ubmit a request; forreducton in the lease-rental rate. Lessee shall'be entitled to present facts and data to .show that `such a. curtailment has• taken place and that•the .curtailment :has seriously- affected Lessee's utilization of he leased premises.. If such facts 'and data indicate that 'a reduction in aeaserent 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, may be served by. enclosing the same; in a Baled envelope .addressed• to ahe party intended to receive thee: same; 'at its address, and deposited :in the United. States Post Off ce as registered .mail with postage 'prepaid,. When so given,: ouch :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 properparry to receive any such notices ari its behalf`is' City Clerk City •of Petaluma 11 .English Street Petaluma, California 94953 and' the address of the Lessee.is: Bud Toly 1340 Commerce Street . Petaluma, California •94954 29. INVALID PROVISIONS, SEVERABII;ITY 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 °ether the: Lessor or the Lessee in their respective rights. and obligations` contained im 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. 31. TIlVIE Time is of the essence in this lease. IN WITNESS WHEREOF, the parties hereto have set their hand the day and year first above written. CITY OF PETALUMA B~ City Manager ATTEST: Title ~ ~2~~~ ~ , ~a o a City Clerk Addre APPROVED AS TO FORM: ~~""'""~ ~ ~ ~4 S City State Zip ~~ City Attorney APPROVED: a Directo is i and Services APPROVED: ~~L--~-~' ~- Risk Manager APPROVED: Finance Officer Telephone agrmt 9/22/00 (fink)