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HomeMy WebLinkAboutOrdinance 1753 N.C.S. 04/03/1989Introduced by ORDINANCE NO. 1753 Seconded by Vice Mayor Davis NCS AN ORDINANCE AUTHORIZING A LEASE OF REAL PROPERTY LOCATED NEAR THE FOOT OF WESTERN AVENUE ON WATER STREET AND ADJACENT TO THE PETALUMA RIVER IN THE CITY OF PETALUMA SONOMA COUNTY, STATE OF CALIFORNIA AND DECLARING ITS URGENCY TO TAKE EFFECT IMMEDIATELY BE IT ORDAINED BY THE Council of the City of Petaluma as follows: Section 1. The real property located adjacent to the Petaluma River 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 Lease by and between the City of Petaluma and the State of California/State Lands Commission, which Lease is attached hereto as Exhibit " X and incorporated herein by reference and the City Manager is hereby authorized to sign said Lease. Section 2. This ordinance is hereby declared to be necessary for the immediate preservation of the public health and safety and shall take effect and be enforced upon its passage by a unanimous vote by the members of the City Council present at the time of its adoption. The reason for the urgency of this ordinance in that construction of the Pedestrian Bridge must commence immediately in order to meet the construction time frames. Section 3. The City Clerk be, and she is hereby directed to publish this ordinance for the period and in the manner as required by the City Charter. INTRODUCED, ADOPTED, AND ORDERED PUBLISHED this 3rd day of April, 1989, by the following vote: AYES: Cavanagh, Tencer, Sobel, Woolsey, Balshav, Vice Mayor Davis NOES: o Mayor Hilligoss Ord. 1753 N.C.S. ABSENT: o M. Patricia Hilligoss, ♦ O ATTEST: atricia ernard, ity�Cler �.PPROVED : Ci Attorney ..fATE OF CALIFORNI"A STATE LANDS COMMISSION FOR RECORDERS USE ONLY RECORDED AT THE REQUEST OF State of California/State Lands Commission Official Business - Document entitled to free recordation pursuant to Government Code Section 27383. WHEN RECORDED MAIL TO State Lands Commission 1807 - 13th Street Sacramento, CA 95814 Attention: Title�Unit LEASE NO. -7 Z O'r 3. 61 This Lease consists of this summary and 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 W 24052 The STATE OF CALIFORNIA, hereinafter referred to as Lessor acting by and through the STATE LANDS. COMMISSION, (1807 - 13th Street, Sacramento, California 95814), pursuant to Division 6 of the Public Resources Code and Title 2, Division 3 of the California Administrative Code, and for consideration specified in the Lease, does hereby lease, demise and let to: hereinafter referred to -as Lessee:: WHOSE MAILING ADDRESS IS: CITY OF PETALUMA 11 English Street Petaluma, California 94952 those certain lands described in Section 3 subject to the reservations, terms, covenants and conditions of this Lease. LEASE TYPE: General Permit - Public Agency LAND TYPE: Tide and submerged LOCATION: Petaluma River LAND USE. OR PURPOSE:: Right-of-way for pedestrian bridge across the Petaluma River at Western Avenue, City of Petaluma, Sonoma County TERM: 49 years:;, be`gnning May 1, 1989 and ending April 30, 2038, unless sooner terminated a's provided under this Lease. 1153 CONSIDERATION: Public 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. AUTHORIZED IMPROVEMENTS: Pedestrian bridge [ J EXISTING: N/A [X] TO BE CONSTRUCTED; CONSTRUCTION MUST BEGIN BY: May 15, 1989 AND BE COMPLETED BY: January 1, 1990 LIABILITY INSURANCE: N/A SURETY BOND OR OTHER SECURITY: N/A SECTION 2 SPECIAL PROVISIONS BEFORE THE EXECUTION OF THIS LEASE, ITSPROVISIONS ARE AMENDED, REVISED OR SUPPLEMENTED AS FOLLOWS: -2- 1492L 0 5 3 W SECTION 3 W 24052 LAND DESCR PTION A strip of land 30 feet wide in the bed of the Petaluma River in the City. of Petaluma, Sonoma County, California, lying 15 feet on each side of the following described center line. COMMENCING at dimensional point "J as shown Record of Survey filed in Book 141 of Maps, Pages 38 and 39 in the Sonoma_ County Recorders :Office; thence along the line from said point "J" to point "H" as shown on said Record of Surve , S 84005'50 W. 17.51 feet to the POINT OF`BEGINNING; thence S 44°3S'15" W, 145% feet more or less to the eastern sideline of Water Street and the end of this description. EXCEPTING THEREFROM any portion lying landward of the ordinary high water marks of the Petaluma River. NQWD) allT el PREPARED FEBRUARY 3,1989 BY BIU 1. SECTION 4 GENERAL PROVISIONS 1. GENERAL These provisions are applicable to all leases, permits, rights -or - way, easements, or licenses or other interests in real property con- veyed by the State Lands Commission. CONSIDERATION (a) Categories (1) Rental: Lessee shall paythe annual rental,asstated in Section 1 or 2 to Lessor without deduction, delayror'offset, on or before the beginning date of this Lease and on orbefore each anni- versary of its',beginning date during each.year of the Lease term. (2) Royalty or other consideration: Lessee shall pay'a royalty or other consideration in the amount, method and manner as specified in Section 1 or 2. (3) Non -Monetary Consideration:. If a monetary rental, royalty, or other consideration is not specified in Section 1 or 2, consideration to Lessor for this Lease shall be the public use, benefit, health or safety, as appropriate, however Lessor shall have the righvto review such consideration at anytime and to set'a monetary rental if the State Lands Commission, at its sole discretion, deter- mines that such action is in the best interest of the State. Lessee shall notify Lessor within ten.(10) days in•the event that the public is charged any director indirect fee for use and enjoyment of the Lease Premises. (b). Modification Lessor may modify the amount or rate of consideration effec- tive on each fifth anniversary of the beginning date of this Lease. Should Lessor fail to exercise such right effective on any fifth anniversary it may do so effective on any one (1) of the next four (4) anniversaries following such fifth anniversary, without prejudice to its right to effect such modification on the next or anysucceed- ing fifth anniversary. Any modification of the amount or rate of consideration made pursuant to this paragraph shall -conform to Title 2, Division 3 of the.California AdministrativeCode,and no such modification shall become effective unless Lessee is given written notice at least sixty (60) days prior to theFeffective dam (c) Penalty and Interest Any installments of rental, royalty, or other consideration accruing under this Lease not paid when due shall besubjecttoa penalty and shall bear interest as specified in Public Resources Code Section 6224 and Section 2. 3. BOUNDARIES This Lease is not intended to establish the State's boundariesand is made without prejudice to either party regarding any boundary claims which may be asserted presently or in the future. 4. LAND USE (a) General: Lessee shall use the Lease Premises.only for -the purpose or purposes stated in Section 1 or 2 and only ,for the operation and maintenance of the improvements authorized,imSection Lor 2. Lessee shall commence use of the Lease Premises within ninety (90) days of the beginning date of this lease. Thereafter Lessee's discontinuance oPsuch use for ;a period of ninety (90)°days shalj be conclusively presumed to be an abandonment. (b) Repairs and Maintenance: Lessee shall; at its own expense, keep and maintain the Lease Premises and all improvements in good order and repair and safe condition. (c) Additions, Alterations and Removal: (1) Additions — No improvements other than those ex- pressly authorized in Section 1 or`2 of this Lease shall be con- structed by the Lessee on ,the. Lease. Premises without the prior written consent; of Lessor. Lessee shall notify Lessor within ten (10);days, after commencing the construction of authorized improvements, and within sixty (60) days after completing them. (2) Alteration or Removal —Except„.,asprovided under this Lease; noialte,ration or removal of existing improvements on or natural featuresof thetease PremisesshalI be undertaken without the prior written consent of Lessor:. (d) Conservation: Lessee shall practice conservation of water and other natural resources and shall prevent' pollution and harniao the environ- ment in or on the Lease Premises. (e) Enjoyment: Nothing in this Lease shall preclude Lessee from excluding persons from the Lease Premises when their presence or activity constitute a material interference with Lessee's use and enjoy- ment of the Lease Premises as provided under this Lease. (f) Discrimination: Lessee in its use .ofthe Lease.Premises shall not discriminate against any person or class of persons on the basis of race, color; creed, national `origin, sex, age, or physical handicap. (g) Residential Use: Onless otherwise allowed under this Lease, improvements on the LeasePremises shall not be used as a residence or for -the purpose, of mooring a floating residence. 5. RESERVATIONS, ENCUMBRANCESAND RIGHTS -OF -WAY (a) Reservations: (1) Lessor expressly reserves all natural resources in or on the Lease, Premises, including but ;not limited to oil,. coal, natural gas and other hydrocarbons,.,minerals, aggregates, timbevand_geothermal resources, is wel las the right to grant leases in.and over the Lease Premises for the extraction of such natural resources, however such leasing she be neither inconsistent nor incompatible with the rights or privileges of Lessee under this Lease. (2) Lessor expressly reserves aright to go on the Lease Premises and all improvements for any purpose associated with this Lease or for carrying out any function required by law, or -the rules; regulations,or;management policies of the Statetands Commission. Lessor shall have a,right of reason- able access to the Lease Premises across Lessee owned or occupied lands adjacent to the Lease Premises for any pur- pose associated with this Lease. (3) Lessor expressly reserves to the public an easement for convenient access across. the Lease Premises 'to other' State-owned lands located near or adjacent to the Lease Premises;and.a right of reasonable passage across and along any right -of= 'way granted by this Lease, however,,such.aase ment or right-of-way shall be neither inconsistentmor in compatible with the rights,or privileges of Lessee under'this Lease. (4) Lessor expressly reserves the right to lease, convey, or encumbevthelLease Premises; in whole or inpart;duringthe lease ierm`for any purpose'not inconsistent or incompatible with the rights or privileges of Lessee under this Lease. (b) Encumbrances: This Lease may be subject to pre-existing contracts, leases, licenses, easements, encumbrances and claims and it is made without warranty by Lessor of title, condition or fitnessof theAa nd, for the stated or 1ritended use. 1753 AtC.S Form 51.15 1-7184,1' (c) Rights -of -Way 10. ASSIGNMENT, ENCUMBRANCING;OR SUBLETTING' If this Lease is for a right -of, covering one'ormor`e pipe- (a) Lessee shall not' either voluntarily or by operation. of law, lines or conduits; the Lease Premises include only land actually assign, transfer,,mortgage, pledge",, hypothecate or encumber this underlying thepipelines or conduits;.and Lessor hereby grants to Lease and shall not subletth"e�Lease Premises, in whole.or in part, Lessee a. non-exclusive right to go onto thealandsiadjacentto,the or allow any person other,than the Lessee'shemployees, agents, Lease Premises as is reasonable and necessary for installation, servants and invitees to; occupy or use all ;orany portion of the inspection and maintenance of.the pipelines or conduits. Lease. Premises without the prior l.writfen consent of Lessor. RULES; REGULATIONS' AND"TAXES (a) Lessor -and Lessee, shall comply with and be bound by all presently existing or subsequently enacted; rules; regulations, statutes or ordinances -of the, State Lands Commission or any other governmental�agencybr entity having lawful` authority: and jurisdiction. (b) Lessee recognizes and; understands in accepting thisi Lease. that it maybe liablefor a possessory interest tax imposed by-a,city or county on its leasehold interest and that its payment ofisuch a tax shall not reduce the amount of consideration due Lessor under this Lease and"that Lessor shall have no liability°for the payment of such a tax. 7. INDEMNITY (a) Lessor:shall'not be liable and Lessee shall indemnify, hold harmless and, atthe option'of`Lessor; defend Lessor, its officers;. agents, and employees against and for anyand all liability; claims, damages or injuries of anykind and from any cause,,occurring on the .Lease Premises or improvements; or arising out of`or con- nected in anyway,with the issuance of this Lease. (b) Lessee shall give prompt notice to 'Lessor in case of any accident, injury or casualty on.the Lease Premises. LIABILITY .INSURANCE, (a) If so specifie-d.in Section 1 or 2, Lessee shall obtain at its own expense and keep, in full force and effect during the Lease. term with, an insurance company acceptable to Lessor compre: hensive'liabilityihsurance, forvspecified categories andamounts; insuring Lessee and Lessor against any and`alI claims or liability arising out.of the ownership •us_e, occupancy, conditionor main- tenance of the Lease Premises and "all improvements. (b) The insurance, policy or policies shall name the State as an additional insured or c'-insured party asto,the Lease Premises and shall identify the Lease byjts;assignednumber. Lessee:shall provide Lessor with _a, certificate of such insurance and shall keep such certificate current. (c) The liability insurance,coverage"specified in this Lease.shall be in effect at all times during the Lease term and subsequently until all of the Lease -Premises have been either accepted as im- proved by Lessor or restored pursuant to Paragraph 13. 9; SURETY BOND (a) If -so specified.'in Section 1,.Lessee :shall provide asurety bond. or other security device :acceptable to Lessor, for the specified amount, and naming the State of California as, the assured', to guarantee: to Lessor the faithful observance. -and' performance by Lessee of all of the terms, covenants and conditions of this Lease. (b) Lessor may increase the amount of the, surety'bond.or'other security device to cover. any 'additionally authorized i;mprove- ments, .alterations or purposes and any modification of consideration. (c) The surety bond,orothersecurity device shall be maintained in full force and effect at afiimes during the:Lease'term and sub sequently until all of the Lease Premises have been either accepted as ,improved by Lessor or restored pursuant: to Para- graph 13. (b) This Lease shall be'app"urtenant tbdittoral or riperian land and any ownershiplinterest'or_use nghts:of Lessee in such lands and it shall not be severed;feom,such'rights,or',.interests"without the prior written consent of ,Lessor. 11. 'DEFAULT AND'REMEDIES (aY .Default: The .occurrence of any ',one,or.more`of`the following events shall constitute a default or breach of this Lease by Lessee: (1) Lessee's failureto make.anypaymentof ental„royalty, or other consideration as required under this Lease. (2) Lessee`sfailuretoobtainormaint4inliabilityinsurance or a surety bond or other security, device as.required under this Lease. (3) Lesseeis vacation or ,abandonment of the Lease Premises during the Lease term. (4) Lessee's failure to observe or perform,,any.;otherterm; covenant or condition of this Lease to be observed or per- formed bythe L+essee'whensuch failure'shall continue,fora period of sixty (60)_days after.Lessor's giving written notice; however, if,the nature:of`Lessee's.:deQ' If or breach iszsuch thatmorethan sixty: (60) days are reasonably required for its cure, then Lessee shall, not be deemed to be in default or _ . breach if Lessee commences such cure;wnhinsuch sixty(60)' day period and diligently proceeds with such cure to completion. (b) Remedies: In the event of a default 'or breach by Lessee and Lessee's failure to cure such default or breach, Lessor-mayat any time and with or without notice do any'one'or,more.,ofthe following: (1') Re-enter the Lease Premises, remove all persons and property; and respossessand enjoy such premises. (2) Terminate'this Lease and Lessee�S;ri'ght of possession of the Lease Premises. Such termination'' shall:be effective upon Lessor's giving Written noticeandbupon receipt of such notice 'Lessee'shall.. immediately "surrender possessionof-the Lease Premises to Lessor. (3) . Maintain this;Lease infulI force and effect,and'recover anyrental;.royalty„or other.consideration as,theybecome due without 'terminating.Lessee 's right of possession regardless of whether Lessee shall have abandoned the Lease Premises. (4) Exercise any other right or remedy which Lessor may have at law or in equity: 1.2. LESSEE'S TER MI NATION Lesseel may;°terminate this Lease for any reason upon giving Lessor::ataeast sixty (60) days`prior weittewriotice. Lessee'agreesthat: on the,:eff.ective date of termination it shall` responsibly leave and surrender the Lease Premises to Lessor in ;a ,state of good order; condition; repair„ and restoration,as,provided under Paragraphs 4(b) and 13. The exercise of such eight of termination shall not:release, Lessee from liability for any unpaid but accrued rental,;royaltyorother consideration which may be'due under this Lease or from any'other obligations still applicable underthe Lease. No portion of anyrental paid by Lessee in advance shall'be+refunded. 13. RESTORATION OF LEASE PREMISES (a) Upon expiration or sooner termination of this Lease, Lessor may accept all or any portion of the Lease Premises, as then im- proved with structures, buildings, pipelines, machinery, facilities and fills in place; or Lessor may require Lessee to remove all or any portion of such improvements at its sole expense and risk; or Lessor may itself remove or have removed all or any portion,of such improvements at Lessee's sole expense. (b) In removing any, such improvements,Lesse,e shall restore the Lease Premises as nearly "es possible to the conditions existing prior to their installation or construction. (c) All such removal and restoration shall be to the satisfaction of Lessor and shall be,cornpleted within ninety (90) days of the expiration or sooner termination of this Lease. 14. QUITCLAIM Lessee shall, within ninety (90) days of the expiration or sooner termination of this Lease, execute and deliver to Lessor in a form provided by Lessor a good and sufficient,release of all rights under this Lease. Should Lessee fail or refuse to deliver such a release, a written notice by Lessor reciting such failure or refusal shall, from the date of its recordation, be conclusive evidence against Lessee and all other claimants of the termination of this Lease and any rights or interests of Lessee in the Lease Premises. 15. HOLDING -OVER Any holding -over by Lessee after the expiration of the Lease term, with or without the express or implied consent of Lessor, shall con- stitute a tenancy from month -to -month and not an extension of the Lease term and shall be on the terms, convenants and conditions of this Lease with rental, royalty or other consideration,payable in ..:. . advance on the first' day of each month, at the rate of one -twelfth (1/12th) of the annual amount. 16. ADDITIONAL PROVISIONS (a) Waiver: (1) No term, covenant or condition 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 or nonconforming performance or otherwise, unless such a waiver is expressly acknowledged by Lessor in writing. STATE OF CALIFORNIA — STATE LANDS COMMISSION LEASE P.R.C. No. !-72 -,+ q?' �! (2) Any such waiver.shall not be deemed to be a waiver of any other term, covenant or condition or any other default.or breach of any term, covenant or conditiorrof this Lease. (b) Time: Time is of the,essence of this Lease and each and.all of its terms, covenants or conditions in which performance is a factor. (c) Notice: All notices required to be given under this Lease shall be given in writing, sent by United States mail with postage prepaid, to Lessor at the offices of the State Lands Commission and to Lessee at the address specified in Section 1. Lessee shall give Lessor notice of any change in its name or address. (d) Consent: Where Lessor's consent is required under this Lease its consent for one transaction or event shall not be deemed to be a consent. to any subsequent occurrence of the same or any other transaction or event. (a) Changes: This Lease may be terminated and its term, covenants and conditions amended, revised or supplemented by mutual agree- ment of the parties. (f) Successors: The .terms, covenants and conditions, of this Lease shall extend to and be binding upon and inure to the benefit of the heirs, successors, and assigns of the respective parties and if more than one Lessee is a party to this Lease, the obligations of the Lessees shall be joint and several. (g) Captions: The captions of this Lease are not controlling and shale have no effect upon its construction or interpretation. (h) Severability: If any term, covenant or condition of this Lease is judicially determined to be invalid, it shall be considered deleted and shall not invalidate any of the remaining terms, covenants and conditions. This lease will become binding' upon the State only when duly executed on behalf of the State Lands Commission of the. State of California; IN WITNESS WHEREOF, the parties hereto have executed this lease as of the date hereafter affixed. LESSEE Jori>JI L. Scharer, Ci,�rager Joseph A. Forest,, , ty Attorney yDavid Spilman,lFi ance Directo j ACKNOWLEDGEMENT' STATE OF CALIFORNIA STATE LANDS COMMISSION Division of Land Title � it4SA e,a � l.Ja� Date ATTES Patricia E. Be.rna .CLERK The issuance of -this lease was authorized by the State Lands Commision on (Month Day Year) 153 MC, S Form 51.15 (7/84)