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HomeMy WebLinkAboutOrdinance 1735 N.C.S. 09/06/1988 ~'`~V ®T ~OCT 6198 ORDINANCE NO. 1735 N.C.S. Introduced by Seconded by John Balshaw Brian Sobel AN ORDINANCE AUTHORIZING A LEASE OF REAL PROPERTY LOCATED WITHIN THE PETALUMA MUNICIPAL AIRPORT COMPLEX BE IT ORDAINED BY THE Council of the City of Petaluma as follows: Section 1. Certain real property located within the Petaluma Municipal Airport complex 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 Walter Mangon which Lease is attached hereto as Exhibit "A" and incorporated herein by reference and the City Manager is hereby authorized to sign said Lease which is for a service and parts/accessories business related to airport and airplane necessities. Section 2. 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 . 17 3 5 N C ~ INTRODUCED and ORDERED published/posted this 15th day of August 1988. ADOPTED this 6th day of September 1988, by the following vote: AYES: Cavanagh, Tencer, Sobel, Woolsey, Balshaw, Vice Mayor Davis, Mayor Hilligoss NOES: None ABSENT: None r ~ MA OR ATTEST: APPROVED: CITY- CLERK CITY ATTORN Y LEASE AGREEMENT PETALUMA MUNICIPAL AIRPORT THIS LEASE AGREEMENT, made and entered into as of the (yam day of p~,~~,m~) 19~, by and between the CITY OF PETALUMA, a political subdivision of the State of California, hereinafter referred to as "Lessor" and WALTER R. MANGON, 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 of one (1) or more acres for a "limited Service Commercial Operation'!' which shall specifically involve aircraft maintenance and related services, retail air-craft parts sales, retail sales of used. aircraft; 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 1 WHEREAS, Lessee desires to obtain and avail itself of the privileges, right, uses and interest therein and herein; NOW, THEREFORE, IT IS AGREED A& 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 described in Exhibit "A", which is attached hereto, marked as such and incorporated Herein, for a term of forty (40) years , commencing on September 6 , 19 8 8 and ending on September. 6, 20`28 2. RENTAL Lessee shall pay to Lessor a rental in accordance with the following provisions (a) The base ground rental for the premises, as described in Exhibit. "A" shall be as follows: First Five Years'.: $.20 per square foot per year Second Five Years: $.25 per square foot per year Third Five Years: $.30 per square foot per year .Fourth Five Years: $.35 per square foot per year The rental rate for- the four remaining .five year periods of the lease term shall be computed at the commencement of each successive five year period at the. rental rate applicable for the immediately preceding five years adjusted for an increase in the Bureau of Labor Statistics Cost of Living Index -San Francisco - Oakland all items for said preceding.. five years. In no event 2 shall the rental rate for any five year period be less than the applicable rental rate for the preceding five year period, unless adjustments in the rental rate are made in accordance with the provisions of this Agreement as set forth in Paragraphs 24, 26, 27 and 30. (b) The base ground rent shall be payable, in advance, in equal installments or 1/12 of the specified annual rental, by the first day of each and every month during the term of this lease and any extension thereof . In the event such payment is -not made within five (5) days of the due date, i . e . , by the first day of each and every month, there shall be a penalty of six percent (6 0) of the amount due and ,owing , which penalty shall become part of that month's rental payment. Furthermore, and in addition thereto, any amount of rental payment and penalties unpaid after thirty (30) days shall have a one and one-half percent (l~$) interest charge on the unpaid amounts, which interest shall likewise become part of the rental payment. 3. OFF SITE IMPROVEMENT Lessee shall have no responsibility for the construction of any improvements to any site not contained within the leased premises. Lessor l shall set the necessary boundary monuments and grade stakes on the leased premises. Lessor shall provide a paved taxiway, or ramp to the ceased premises of adequate width to permit access to said premises by taxiing aircraft 4. ON SITE IMPROVEMENT REQUIREMENTS The Lessee shall be required to construct on said property a building in conformity with all applicable laws, ordinances, rules and 3 regulations containing an initial floor area of not less than 6, 000 square feet under one roof . The building shall be a prefabricated metal structure, as approved by the SPARC of the City of Petaluma. 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 corinec ion and such services from the site or boundary line thereof. Lessor agrees to make available utilities, electric, gas, water, sewer, telephone to the site or boundary line of the leased premises within a reasonable time following execution of this Agreement. 6. USE OF PREMISES The leased premises shall be used as follows (a) Limited Services Commercial Operation The Lessee or Sublessee shall conduct Limited Service Commercial Operations on the leased premises which includes, without limitation, the maintenance, repair, refurbishment, construction and .reconstruction of any and all types of aircraft, together with all operations customarily ancillary thereto and, at the option of lessee the training of personnel in such operations . Tie down services may be provided for customers as required, but the rate shall be at least twenty percent (200} more than that charged by the City for fiedowns. Lessee is .authorized to operate retail sales of parts and merchandise related to flight and. flying operations . The uses and. .operation set forth shall not be exclusive. 4 (b) Prohibitions. Lessee and/or any Sublessee is prohibited from engaging in the following (1) The sale of food to or the consumption thereof by the public, provided, however, that "snack foods", sandwiches and candy may be sold from mechanical dispensers . (2) The sale or consumption of alcoholic beverage, provided that coffee and soft drinks may be sold from mechanical dispensers as provided above; (c) Common Facilities Lessee and/or Sublessee shall have the right to 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. 7. OPERATION OF AVIATION BUSINESS BY LESSEE- Conditions (a) This lease shall be subordinate and subject to the Grant Ag-reement, by and between the United States of America, Federal Aviation Agency, and Lessor, and subsequent grants and agreements . (b) The Lessee agrees to make their services available to the public 5 without unjust discrimination and to refrain from imposing or levying excessive discriminatory or otherwise unreasonable charges or fees for us of said facilities, provided, however, the Lessee may refuse service to any person or persons for justifiable cause, without discrimination by virtue of race, color, sex, age or creed. (c) Public Services Lessee shall provide comprehensive public services, including, but not limited to, aircraft maintenance and overhaul, used aircraft and aircraft parts, new parts and merchandise sales, service and inspections', aircraft storage. (d) Hours of Operation Lessee shall ,publish. a schedule setting forth his hours of operation . (e) The airport .manager shall investigate all complaints against Lessee by members of the public . If he finds that the complaint is justified, he may direct Lessee to take such reasonable action as he believes necessary to rectify the complaint or prevent its recurrence. If Lessee is aggrieved by any such directive, he may appeal therefrom to the City of Petaluma Aviation Commission, whose decision shall be appealable to the Petaluma City Council, whose decision shall be final. 8. SURETY BOND Prior to the commencement of construction hereunder, 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 satisfactory to Lessee, in a sum not less than one hundred 6 percent (lOD o) of the total estimated cost of the construction contract, guaranteeing the payment for all labor, material, provision, supplies and equipment used 'in, upon, for, or about the performance of any construction work or , labor done thereon of any kind whatsoever as proposed by Lessee and protecting Lessor, its officers, boards, commissions, employees, and agents from any liability, losses, or damages arising therefrom. Lessee shall. also provide Lessor a similar surety bond in an amount equal to the estimated cost of the said construction of the improvements, guaranteeing faithful performance of said construction contracts. If Lessee obtains, from its contractor or contractors. such bond or bonds in like amount which are satisfactory to the Lessor, the Lessor, upon application by Lessee's principal and upon naming the Lessor as an additional: obligee of Lessee's principal. and surety under such bond. or bonds', will release Lessee from and consent to the cancellation of the bond or bonds originally furnished by Lessee. 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,- condittion and repair, and hereby waives alI right to make- repairs at the expense of Lessor as provided in Section 1942, et seq. , of the Civil 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. ALTERAT-IONS AND ADDITIONS Subsequent to completion of the improverents 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 7 sole expense of Lessee 11. SIGNS Lessee shall be privileged to erect. such signs and advertising media 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 shall be subject to the prior approval of Lessor. 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 AND REGULATIONS 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, 8 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, $250, 000.00, Bodily Injury, $l, 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 fhe full insurable value of the structures and buildings, and contents as erected and placed, upon the leased. premises, 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 gove-rnmental authority. 9 17. INSPECT-ION 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. 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 sublease shall be subject to the written approval of Lessor, which approval shall not be unreasonably withheld. It is further agreed that Lessee is authorized to sublet a portion of the premises to an independent contractor for the purpose of assisting Lessee iri the full utilizat-ion of the Limited Service Commercial Operation as described herein; provided., however, that upon Lessee's electing to sublet to any independent contractor for such allowed use or uses, Lessee shall notify Lessor of such subletting and shall specify in such sublease and other agreements entered into by Lessee. and the independent contractor that they shall be subject to the terms and conditions of this lease. Signed copies of all such subleases and/or agreements shall be furnished to Lessor upon execution . 19. IMPROVEMENTS It is agreed that. all.. improvements constructed by Lessee shall be r 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 the 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 lending institution but shall not be subordinate to any other 10 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 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 (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 cio 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 11 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 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 and. 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. 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, in good condition, normal wear and tear excepted. 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 sYiall make w=ritten 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 (60) day 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 (60) day period... No waiver of 'Lessor or default by Lessee of any of the terms, 12 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 ommitted 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 b.y virtue thereof, consistent with current eminent domain 13 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 submit a request for reduction 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 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, may be 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 party to receive. any such notices on its behalf is City Clerk City of Petaluma 11 English Street Petaluma, .California 94952 and the address of the Lessee is Walter Mangon DBA Mangon Aircraft Repair Services 1736 'Caulfield Lane Petaluma, California 94952. (Until address is established at airport) 14 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. RENEGOTIATION Lessor reserves the right to enter into other leases with fixed base operators or other limited service commer'eial operators on the Airport during this Lease or any extension thereof., provided, that Lessee shall have the right. to renegotiate any term or provision of this Lease which with respect to the matters specified in Paragraphs 2, 5, 6 and 16, hereof, unduly or unreasonably restricts Lessee's competitive position in regard to such other Lessees for fixed base operations or limited service commercial operation on the airport shall not be deemed in and of itself as sufficient reason to renegotiate any term or provision of th"s Lease.. 31. BINDING ON SUCCESSORS The covenants and conditions herein contained shall apply to and bind the heirs, successors, executor, administrators, and assigns of all the parties hereto. 32. TIME Time is of the essence in this lease. . 15 MANGON LEASE DESCRIPTION All that portion of land lying within Parcel "A" as shown upon the map entitled Exhibit "A" airport property map on file with the City of Petaluma. Further described as follows: Beginning at a 1/2" iron pipe tagged RCE 11226 located at the most northwesterly corner of Parcel "A" as shown upon said map. Thence, N 35°20'55" E 437..88 to a point on the westerly boundary of .Parcel "B" as shown upon said map. Thence, S 54°33'00" E 1:,200.04 feet to an open 3/4" iron pipe set flush with the pavement, marking the west end of a southerly 170.00 foot offset to the center line of the runway. Thence, from said point S 35°27'00" W 437.88 feet to a point along the northerly line of Parcel "A". Thence, N 54°33'00" W 208.99 to a point. Thence, S 35°27'00" W 88.05 feet to an open 3/4" iron pipe marking the northwest corner of the lease parcel herein to be described said point to be known as the true point of beginning . Thence, from said point of beginning S 54°33'00" E 234.14 feet to an open 3/4" iron pipe. Thence, S 35°27'00" W 270.00 feet to an open 3/4" iron pipe. Thence, N 54°33'00" W 234.14 feet to an open 3/4" iron pipe. Thence, N 35°27'00" E 270.00 feet to the true point of beginning. Lease Parcel contains 1.45 acres more or less. IN WITNESS WHEREOF, the parties hereto have set their .hand the day and year first above written.. CITY OF PETALUMA B y ~ , fTY MANAGER ATTEST: f C Y CLERK APP V S O FORM : T NEY LESSOR. r~~~'`' MANGON AIRCRAFT REPAIR Fi~ence I toc y WALTER R. MAN President mangon .lease LAW13 Rl sk Ma na g~~ 16