HomeMy WebLinkAboutOrdinance 2012 N.C.S. 05/20/1996~~.
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Jug 2 0 1996
ORDINANCE NO.
Introduced by
2012 N.C.S.
Seconded by
Matt Maguire
AN ORDINANCE OF THE COUNCIL OF TIIE CITY OF PETALUIVIA
AUTIIORIZING AN OPTION AND LEASE AGREEIVIENT OF REAL
PROPERTY LOCATED WITIIIN T1EIE CITY OF PETALUIVIA
DAVID DEYOTO
KTOB
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS FOLLOWS:
Section 1: Certain real property located in the City of Petaluma, County of Sonoma, State of
California, is hereby authorized to be leased under the terms and conditions set forth in the
Option and Site Lease Agreement by and between the City of Petaluma and David Devoto,
which Option and Site Lease Agreement is attached hereto as Exhibit A and incorporated herein
by reference. The City Manager is hereby authorized to sign said Option. and Site Lease
Agreement which is for use as a KTOB Antenna and Transmitter relocation located at the foot of
Casa Grande Road (a closed landfill).
Section 2: The City Clerk be, and she hereby is directed to publish this ordinance for the period
and in the manner required by the City Charter.
INTRODUCED and ordered posted/~~ this 6th. day of May , 1996.
ADOPTED this 20th day of May , 1996 by the following vote:
AYES: Maguire, Hamilton, Stompe, Read, Shea, Vice Mayor Barlas, Mayor HIlligoss
NOES: None
ABSENT: None
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Ord. 2012 NCS
Page 1 of $
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ATTEST:
City Clerk
ord/kc
VED TO FORM:
City Attorney
Ord. 2012 NCS Page 2 of ~ ~
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OPTION AND SITE LEASE. AGREEMENT
This Option. And Site Lease Agreement. ("Agreement") is entered into this
day of , 1996,. by and between the City of Petaluma, a municipal
corporation, ("Landlord") and Petaluma Broadcasting Corporation, a California
corporation, {"Tenant").
A. OPTION
1. Premises. Subject to the .following terms and conditions, Landlord
grants to Tenant an option ,(the "Option") to lease. a portion. of AP#005-060-12 (the
"Property") known as ahe ~Citq ~of Petaluma's closed Casa Grande landfill site whose
entrance is at the southern end of Casa Grande Road. The lease area comprises
approximately two (2) acres of the Property as described or depicted in Exhibit "A",
attached hereto, and as described and depicted in the :final plans as approved by the City
Of Petaluma through the issuance of a. use permit for the project.
2. O_ption_Term. The Option shall.. be for a term of twelve (12) months
commencing upon the: date set; forth above (the "Option Period"). The puipose of the
Option Term is to provide Tenant: a period of time to conduct engineering studies and
obtain necessary public agency'approvals.
3. Option Fee... ~In consideration for Landlord granting to Tenant .the
'Option, Tenant shall: submit to Landlord a payment of Fiue Hundred .Dollars ($500.00).
4. .Cooperation. .During the Option Period, and any extensions
thereto, and during the term of Phis Lease, Landlord agrees to cooperate with Tenant in
obtaining and maintaining. all licenses and permits required for Tenant's use of the
Premises (the "Governmental Approvals") and Landlord agrees to allow Tenant to
conduct surveys, soils testing, .and .other engineering :procedures on, under, and. over the
Property necessary to determine that the Prenuses will be acceptable to Tenant's
engineerng'specificaton, system design, and Governmental Approvals. Landlord assumes
responsibility for costs ,for .environmental review beyond preliminary environmental
assessment.
5. Exercisin~of_Option. Tenant may exercise tlus~ Option by notifying
Landlord in: writing; prior to'the expiration of `the Option. Period, that Tenant is exercising
its Option.
B. LEASE
6, Lease Term. In the event that Tenant exercises the Option, the
term of this lease (this "Lease") shall be ten (10) years. The. Lease shall commence upon
the date Tenant gives written notification to Landlord that Tenant is exercising its' Option
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(the "Commencement Date"); which shall in any event be prior to the expiration of the
Option Period; and shall terminate at Midnight on the last day of the month in which the
tenth annual anniversary of the Commencement Date shall have occurred.. Tenant shall
have the right to extend .this Lease for four (4) additional ten-year terms ("Renewal
Terms"). Each Renewal Term shall be on the same terms and conditions as set forth
herein. This. Lease shall automatically be renewed for each successive Renewal Term
unless Tenant -shall notify Landlord of`Tenant's intention not to renew this Lease at least
sixty (60) day prior tq the expiration of the term or any Renewal Tenn.
7. 'Use:.. The Premises shall be -used by Tenant for the transmissions
and reception of telecommunication signals in -any -and all;-frequencies. Tenant anticipates
the placement of a radio tower of approximately 165 feet tall,. three guy wires supporting
the tower and underground radials radiating from. the center of the tower. Tenant also
anticipates placing a building in which he shall place transmitting equipment. Tenant does
.not anticipate placing any personnel at the building other than to occasionally maintain the
equipment.
8. Rent.
(a) Upon the Commencement Date, Tenant. shall pay Landlord, as
rent, the sum of Eight Hundred_'Fifly .Dollars ($800.00) per month ("Rent"). Rent shall be
payable on the first day of each month in advance to the City of Petaluma and sent to the
City of Petaluma Finance Department; PO Box 61, Petaluma, California 94953-0061. If
the Lease is commence other than on the first day of a month, 'the .Rent shall. be prorated
for that first .month for the number of days from the Commencement Date to the end of
the month.
(b) .Rent shall be increased as of the annual anniversary of the
Commencement Date ("Adjustment Date") by a percentage equal ~to the percentage
increase in the Consumer Price Index ("CPI") for the S'an Francisco/Oakland/San Jose
Metropolitan Statistical Area orr the Adjustment Date over the CPI for the month in which
the Commencement Date. or the last Adjustment Date; as the case may be, occurred.
However,: Rent shall not be :increased by more' than .eight percent (8%) of the Rent in
effect. for the:,previous year. Rent shall not be decreased below the rent for the previous
year. Landlord ahall be responsible for communicating the amount of the rental
adjustment: to Tenant and shall provide 'Tenant with supporting date upon which the
adjustment is calculated.
(c) If this Lease is terminated at a time other than on the last day of
a month, Rent shall be prorated as of the date of termination, and, in the event of
termination for any reason other than nonpayment of Rent; all prepaid Rents shall be
refunded to Tenant.
9. Interference. Subject to Landlord's right of condemnation,
Landlord shall not use, 'nor shall Landlord permit its. employees, tenants, licensees, invitees
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'. or agents,to use~any portion of Landlord's properties in any way which interferes with the
operations of Tenant. Such interference shall be deemed a material breach by Landlord;
and Landlord„shall have the responsibility to terminate said inte"rference. In the event. zany
such interference does not cease promptly, the parties .acknowledge., that continuing
interference will cause irreparable injury to Tenant, and therefore Tenant shall have the
right, in.addition to any other rights that it may have at law or in equity, to elect to enjoin
such interference or°to terminate this Lease, upon notice to `Landlord.
10. Improvements; Utilities: Access:
(a) Tenant- -shall have. the right; at its expense, to erect and maintain.
on the Premises the improvements; ,personal property and facilities, including without
limitation, an antenna tower and base; :radio transmitting and receiving antennas, and an
eleetronic_equipment shelter (collectively the "Antenna.Facilities"). The Antenna Facilities
shall remain the exclusive property of Tenant, and Tenant. shall. have the' right to .remove
the Antenna Facilities during .the- term and following any terrriination of this Lease.
(b) Tenant shall have the right to :install utilities, at. Tenant's
expense, and to improve the present utilities on the Premises. Tenant shall have the right
to permanently place utilities on (or to bring utilities across) the Property in order to
service the. Premises and the .Antenna Facilities. .Landlord shall execute an easement
evidencing this ':right upon Tenant's request. ~ Landlord hall make all necessary
arrangements: with. Pacific Gras & Electric Company for such service to be installed at the
time required by Tenant. Landlord shall obtain zany necessary third party approvals to
provide utilities as set forth in this paragraph.
(c) .Landlord shall provide Tenant ingress,. egress, and access to the
Premises adequate to service the Premises and the Antenna ;:Facilities at all times during
the term of this Lease or any renewal thereof at no additional charge`to Tenant. Landlord'
shall. execute: an easement evidencing this right upon Tenant's request. Landlord shall
obtain any necessary thirdparty approvals to provide access as set forth in this paragraph.
(d) Tenant shall require its contractors to obtain payment and
performance bonds .guaranteeing the contractor's work and' naming the City of Petaluma
as obligee thereon. Tenant shall provide copies of all bonds obtained `to the City prior to
the commencement of construction:
la. ,Termination. Except as otherwise. provided herein, this Lease may
be terminated, without any penalty or further liability, on thirty (30) days written notice as
follows: (a) by either-' party upon ;a default of any covenant or term hereof by the other
parry, which is not cured within sixty days (60) of receipt of written notice of default
(without, however, limiting any other rights available under law); (b) by Tenant if it is
unable. to obtain or maintain any license, permit or other .Governmental Approval
necessary to the construct-ion andJor operation of the Antenna Facilities or Tenant's
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business; or (.c) by Tenant if the Premises are "or become unacceptable under Tenant's
design or engineering specifications for its Antenna Facilities or the communications
system to which the Antenna .Facilities belong. Upon termination, Tenant will return the
Premises to its-original condition; .normal war and tear and casualty excepted. However,
Tenant. will not be responsible for the reduction 'of any foundation to a depth. greater than
one foot below grade.
12. Taxes. Tenant shall pay any,personal property taxes assessed on,
or any portion of-such taxes attributable to, the Antenna Facilities. Landlord shall pay
when due all real property taxes .and all other fees and. assessments attributable to the
Property. However, Tenant. shall pay, as additional Rent; any increase in real property
taxes levied against the Prenuses which is directly attributable to Tenant's use of the
Premises, and landlord agrees to furnish proof of such increase to Tenant.
13. Insurance:. Tenant will ,provide Commercial Liability insurance in
an ;aggregate amount of $1,000,000.00 and Warne Landlord as an .additional insured on the
policy or policies. Tenant, 'may satisfy this requirement by obtaining an appropriate
endorsement which is reasonably satisfactory to Landlord, to any master policy of liability
insurance Tenant may obtain.
14. Destruction of Property. If the Property or the Premises are
destroyed or damaged so as to hinder the effective use of the Antenna Facilities, Tenant
may elect to terminate this Lease as of the date of the .damage or destruction by so
notifying. landlord not more than, 45 days following the date of damage. In such event, all
rights and obligations of the parties shall cease: as of the: date of the damage or destruction
and Tenant shall be entitled to the reimbursement of any Rent prepaid by Tenant.
15. Condemnation. If a condemning authority other than Landlord
takes all of the Property, or a„portion sufTicent to render the Premises unsuitable for the
use which Tenant was then making of the Premises,, this Lease shall ternnate .as of the
date the title vests in the, condemning authority. Thee parties shall be entitled to share in
the condemnation proceeds in proportion to the values of their respective interests in the
.Property (which for Tenant shall include, where applicable, the value of its Antenna
Facilities, moving expenses, prepaid :rent and business .dislocation expenses). Sale. of all or
part of the Property to a purchaser with the power of eminent domain in the face of the.
exercise of the power, shall be treated as ~a taking by condemnation.
16. Indemnity and Hold. Harmless. Tenant agrees to, defend; indemnify
and hold Landlord harmless from any and- all claims ansing from installation, use,
maintenance, repair:or removal of`Tenant's Antenna Facilities, except to the extent such
claims arise from-.the negligent .or intentional acts or omissions of Landlord, its agents or
independent contractors. Tenant agrees to defend, indemnify and hold harmless any
property owner from which Landlord obtains an easement to' cross that owner's ,property
from any arid: all claims; arising from the use of the owner's property by Tenant or its
employees, agents or contractors.
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17. Notices. All notices, requests; demands and other communications
hereunder shall be in writing and shall be deemed given if personally delivered or mailed,
certified mail; return receipt requested, or sent by overnight carrier to the following
addresses:
If:to Landlord to:
City of Petaluma
Office of the City Attorney
11 English; Street
Petaluma; CA 94952
If to Tenant, to:
Petaluma Broadcasting. Corporation
c/o KT,OB(AM)
2 Rovina Lane
Petaluma, CA 94952
,18. Title and Quiet Enjoyment:
(a) Landlord warzants that it (I) has full right, power and authority
to execute this Agreement; (ii) has good and unencumbered. titre to the Property free and
clear ,of any liens or mortgages, except as set forth in Exhibit "A" attached hereto.
Landlord further warranfs that Tenant shall have the quiet. enjoyment of the Premises
during the term of this Lease ~or any renewal thereof.
. (b) Tenant has the right to obtain a title :report. or comrriitment for
a leasehold title policy from a, title insurance company of its choice.. If, in the opinion of
Tenant,. such title report shows any defects of title or any liens or encumbrances which
may adversely affect Tenant's use of the Premises or Tenant's .ability to obtain .leasehold
financing; Tenant shall hake the right to cancel this lease immediately upon written .notice
to~Landlord
(c) Tenant shall also have the right to have the Property surveyed,
ands. in the event that any:defects are shows by the survey.which, in the opinion of Tenant,
may adversely affect Tenan't's u'se of the Premises or Tenant's ability to obtain leasehold
financing, Tenant shall have the right ~to .terminate this Lease immediately upon written
notice to Landlord.
.(d) Landlord will hold. Tenant harmless from and indemnify Tenant
against and from any damage, loss, expense or liability resulting from any hazardous
substances on the Premises.
s. ORS ao~ ~. iJCS ~e,~ crF 1t
(e) Tenant represents and warrants to'landlord that Tenant will not
generate,, store, release :or dispose of hazardous sub"stances on the Premises, nor will
Tenant transport same to or across the Premises; except for fuel and batteries to be used in
Tenant's emergency power system. Tenant will :hold harmless and indemnify Landlord
from and against 'any damage, loss expenses, or liability resulting from any breach of this
representation. and warranty including, all attorneys' fees and costs incurred. as a result
thereof.
1-9. Assigiment and Sublease.. Upon notice to Landlord, Tenant may
assign this Lease or~ sublease o any person or entity with an ownership interest, in radio
station KTQB(AM), any affiliate of such person or entity, any partnership in which Tenant
is a partner or any person or. entity that acquired Tenan't's business. .Except as provided
above, Tenant may only assign this lease with the written consent of Landlord. Tenant
warrants that any assignee of Tenant shall meet the financial responsibility requirements of
the Federal Communicatioris Commission. Tenant may .only sublet this lease to a person
or entity which shall place antennas on Tenant's tower and' equipment in the Antenna
Facilities. Any sublease that is entered into by Tenant. shall be subject to the provisions of
this Lease.
20. Successors and Assigns. This lease shall run with the Property
described in .Exhibit "A"..This 'Lease shall be binding upon -and' inure to the benefit. of the
parties, their respective successors, personal representatives and assigns.
21. Waiver of Landlord's Lien. Landlord hereby waives any and all lien
rights it may .have, .statutory or otherwise, concerning°the Antenna Facilities or any portion
thereof which :shall be deemed personae property .for the purposes of this Lease, regardless
of whether or not same. is deemed real or personal property under applicable laws, and
Landlord gives Tenant the right to :remove all or any portion of same from time to time in
Tenant's sale discretion and without Landlord's consent.
22. Miscellaneous.
(a) The' substantially prevailing party in any litigation arising
hereunder 'shale : be entitled to its reasonable attorneys' fees and court costs; including
appeals,, if any.
(b) .Each party agrees to furnish. the other such truthful Estoppel
information as the, other may reasonably ,request.
(e) This Agreement constitutes the entire agreement and
understanding of the parties, and supersedes all offers,. negotiations and other agreements.
There are no representations or understandings of any kind not set forth herein. Any
amendments to this Lease must be in writing and executed by both parties.
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- (d) If either party is represented, 6y a real estate broker in this
transaction, that party shall be fully responsible for any fee due such broker, and shall hold
the other party :harmless from any claims for commission by such broker.
(e) Landlord agrees :to cooperate with. Tenant in executing any
documents (including. but riot limited to a: Memorandum of Option and site lease
Agreement and Nondisturbance and ~Attornment Agreement) necessary to protect
Tenant's rights hereunder or Tenant's use of the Premises. Landlord acknowledges that a
Memorandum of the Agreement will be recorded in the Official Records of the County
where the Property is located. Upon the expiration or earlier termination of this
Agreement, Tenant agrees to record a quitclaim deed to evidence the termination of
Tenant's interest in the Property.
(fj This Lease shall be construed 'in accordance with the laws of the
State of California.
(g) If any term of this Agreement is found to be void or invalid,
such invalidity shall not affect the remaining terms of this Agreement, which shall continue : ,
in full force and effect.
Dated as of the date first set :forth above.
LANDLORD: CITY OF PETALLJNIA
a municipal corporation
Tax ID# 94-6000392
By: John L. Scharer
Its: City Manager
By: Gene Beatty
Its: Director of:Public Works
APPROVED AS TO FORM:
By: David Spilman
Its: Finance Director
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TENANT:
State of California.
County of Sonoma
APPROVED AS TO FORM:
By: Michael Acorne
Its: Risk Manager
APPROVED AS TO FORM:
By: Pamela Tuft
Its: Director of Planning
APPROVED AS T'O FORM:
By: Richard Rudnansky
Its: City Attorney
ATTEST:
By: Patricia E._Bernard
Its: City Clerk
PETALUMA BROADCASTING CORPORATION
By: David Devoto, President
On ,before me, ,Notary Public,
personally appeared. ,personally known
to me (or proved. to me on the basis of satisfactory evidence) to be the person whose .name
is subscribed. to the within. instrument and acknowledged to me that he/she executed the
same in .his/her authorized capacity, and that by his/her signature on the instrument, the
person,. or the entity°up`on behalf of which the person acted, executed the instrument.
WITNESS' my :hand and official seal.
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(SEAL)
Notary Public _
My commission expires:
State of California
County of Sonoma
On , ;before me, ,Notary. Public,
personally appeared ~ ,personally known
to me (or proved to me an the basis of satisfactory evidence) to be'the person whose name
is subscribed. to the. within instrument and acknowledged to me that he/she executed the
same in his/her authorized capacity, and that by his/her signature on the instrument, the
person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS. my hand:,and official seal.
(SEAL)
Notary Public
My commission expires:
ktob0019.doc.~F
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