HomeMy WebLinkAboutReso 1990-096 - Approving the lease agreement between the COR and Hawes River Acres t •
RESOLUTION NO. 94 ---96
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF REDDING
APPROVING THE LEASE AGREEMENT BETWEEN THE CITY OF REDDING
AND HAWES RIVER ACRES , INC. FOR PASTURE LAND NEAR THE
REDDING MUNICIPAL AIRPORT, AND AUTHORIZING THE MAYOR TO
SIGN.
BE IT RESOLVED by the City Council of the City of Redding as
follows:
1 . That the City Council of the City of Redding hereby
approves the Lease Agreement between the City of Redding and
Hawes River Acres, Inc. , effective February 6 , 1990 , a true copy
of which is attached hereto and incorporated herein by reference.
2 . That the Mayor of the City of Redding is hereby
authorized and directed to sign said Lease on behalf of the City
of Redding, and the City Clerk is hereby authorized and directed
to attest the signature of the Mayor and to impress the official
seal of the City of Redding.
I HEREBY CERTIFY that the foregoing Resolution was
introduced and read at a regular meeting of the City Council of
the City of Redding on the 20th day of February, 1990 , and was duly
adopted at said meeting by the following vote:
AYES: COUNCIL MEMBERS: Buffo', Dahl , Fulton, Johannessen, & Carter
NOES : COUNCIL MEMBERS : None
ABSENT: COUNCIL MEMBERS: None
ABSTAIN: COUNCIL MEMBERS : None
SCOTT CARTER, Mayor
City of Redding
'TTE T 1, _zeexiAFORM,'''ROVED:
:/HEL A. NICHOLS , C.ky Clerk RA DALL A. HAYS , Cit Attorney
by Connie Strohmayer, Assistant
i ! .
LEASE
THIS LEASE made and entered into effective the 6th day of
February, 1990 , by and between the CITY OF REDDING, a Municipal
Corporation organized under the general laws of the State of
California, hereinafter referred to as "Lessor, " and HAWES RIVER
ACRES, INC. , a California Corporation, hereinafter referred to as
"Lessee" ;
WITNESSET H:
For and in consideration of the rents, covenants, and
agreements herein contained, Lessor does hereby lease, demise,
and let unto Lessee that certain real property (the "premises")
located adjacent to the Redding Municipal Airport, consisting of
155 acres and 303 acres respectively (for a total of 458 acres)
shown as Parcels A and B respectively on Exhibit "A" attached
hereto and incorporated herein by reference; -
IT IS MUTUALLY UNDERSTOOD, STIPULATED, AND AGREED by and
between the parties hereto as follows :
1 . This Lease supersedes the Lease Agreement entered into
between the CITY and HAWES RIVER ACRES, INC. , covering the real
property shown as Parcel A on Exhibit "A" attached hereto,
approved by the City Council of the City of Redding on May 17 ,
1988; Resolution No. 88-193 , with the provision that Lessee shall
be credited for the rent paid in advance to City under said Lease
for the period February 6, 1990 , through May 31 , 1990.
2. Lessee covenants and agrees to install approximately
12,000 feet of fencing, to the satisfaction of the Director of
Airports of City, by May of 1990 , OR by the time of completion of
the Airport' s perimeter chain link fencing project, whichever is
later.
3. This Lease shall be for a period of three (3) years,
commencing February 6, 1990, and ending January 31 , 1993.
411 4
4. Provided Lessee is not in default hereunder, Lessee
shall have two three-year options to extend the term of this
Lease. Such options shall extend the initial 2/6/90 through
1/31/93 term of this Lease for two additional three-year periods,
to January 31, 1996 , and January 31 , 1999 , respectively. The
option(s) shall be exercised by written notice addressed by
Lessee to Lessor no less than thirty (30) days prior to the
expiration of the then current Lease term. If Lessee exercises
such option (s) , all of the terms, covenants, conditions , and
agreements contained in this Lease Agreement shall remain in full
force and effect, with the exception of the right of Lessee to
renew this Lease beyond January 31 , 1999 .
5. (a) The annual rent to be paid by Lessee to Lessor under
this Lease Agreement, including any renewal term, shall be the
sum of Five Dollars ($5 .00) per acre for the 155 acres shown as
Parcel A on Exhibit "A" attached hereto, and Two and 50/100
Dollars ($2.50) per acre for the 303 acres shown as Parcel B on
Exhibit "A' attached hereto, for a total of One Thousand Five
Hundred Thirty-two and 50/100 Dollars ($1 ,532 .50) , to be paid in
advance on the 6th day of February, 1990 , and on the 1st day of
February ineachand every- year thereafter during the - i-nitial
term of this Lease, or any renewal thereof.
The annual rent of $2 . 50 per acre for the 303 acres
shown as Parcel B is in recognition of Lessee' s need to help
offset his investment of almost $20 ,000 for performing the
following work: 12 ,000 feet of installed fencing; clearing of a
new access road; clearing of Parcel B in the same manner in which
he cleared Parcel A; the leveling and improvement of the 80±
acres of the old motocross area; and the subsequent maintenance
of Parcel B in a cleared and clean condition.
(b) In addition, the annual rental payments shall be
evaluated every three (3) years, commencing February 1 , 1993 , and
adjusted by the average of the United States Bureau of Labor
Statistics National Consumer Price Index (CPI) for the San
Francisco/Oakland area for the previous three-year period.
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(c) Subject to the CPI adjustment in paragraph 5 (b) , at the
end of the first three-year period of this Lease, and for each
three-year period thereafter if this Lease is renewed as set
forth in paragraph 4 of this Lease (each three-year period being
hereinafter individually referred to as a "rental period") , the
fair market value of the leased area for the following rental
period shall be determined by written agreement between Lessor
and Lessee executed at least thirty (30) days prior to the
expiration of the rental period then in effect, and the annual
rent to be paid by Lessee to Lessor under this Lease Agreement
shall be adjusted accordingly.
(d) In the event of any disagreement between the parties as
to the fair market value of the leased area to be valued under
the terms of paragraph 5 (c) , determination of such fair market
value shall be made by three appraisers, one to be selected by
each party, and the third to be selected by the two appraisers
appointed by the parties; the costs of appraisal to be borne
equally by each of the parties hereto, and both Lessee and Lessor
shall be bound by the appraisals rendered. In the event of
disagreement among the appraisers, the decision of any two of the
three appraisers shall govern; provided,_ however, that in no
event shall the annual rent to be paid by Lessee to Lessor under
this Lease Agreement, or any renewal thereof, be less than the
amount paid by Lessee in the 3rd or 6th years hereunder.
(e) Any fees and charges more than 30 days past due may be
subject to a service charge of one percent (1%) per month, based
on an annual rate of twelve percent (12%) . Without prejudice to
any other remedy which otherwise might be used for non-payment of
fees and charges, or other breach of this Lease, if Lessor is
required or elects to pay any sum or sums or incurs any obli-
cations or expenses by reason of a failure, neglect, or refusal
of Lessee to perform any one or more of the terms, conditions,
and covenants of this Lease, or as the result of any act or
omission of Lessee contrary to said terms, conditions, or
covenants, the sum or sums so paid, including all interest,
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costs, damages, or penalties, may be added, after 15 days'
written notice by Lessor to Lessee, to any fee thereafter due
hereunder, and shall be and become additional fees recoverable by
Lessor in the same manner and with like remedies as though it
were originally a part of the fees and charges set forth above.
6. The premises are to be used by Lessee solely for the
purpose of growing lawful crops , namely range clover, and agri-
cultural activities incidental to growing such crops, and for the
pasturing of livestock. This incidental non-aeronautical use of
this Airport land, while awaiting any future aeronautical use, is
in accordance with the Federal Surplus Property Act.
7. Subject to the restrictions and reservations herein
contained, Lessee, paying the rent and performing the covenants
herein specified, shall and may peaceably and quietly hold and
enjoy said premises for the term aforesaid, but if any rent be
due and unpaid, or if default should be made in any of the
covenants or agreements herein contained on the part of Lessee,
it shall be lawful for Lessor to re-enter the premises and remove
all persons therefrom, or Lessor may elect to exercise any legal
or equitable right accruing to it as the result of such breach.
8. If Lessee should default -as to any of the conditions,
covenants, and agreements herein contained, and Lessor, having
knowledge of such breach, should not take advantage of the same,
such failure on the part of Lessor shall not be construed as a
waiver of such conditions, covenants, or agreements, and the
right of termination shall remain in full force and effect unless
expressly waived in writing, nor shall the right to give or
withhold consent in any case be deemed to be waived on account of
a prior waiver.
9. Lessee, in carrying on and conducting his operations
upon said premises, shall comply with and conform to all laws,
ordinances, and regulations governing the conduct of such
operations.
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411 111
10. Lessor or its agents shall have the right, on
reasonable occasions, to enter onto any part of the demised
^remises to ascertain and inspect the condition of same.
11 . Lessee shall pay the cost of any extensions required to
serve the leased premises with any utilities, and, in addition
thereto, Lessee shall pay the cost for any utility service that
is furnished to it at said premises.
12. This Lease shall be deemed forthwith terminated on the
failure of Lessee to comply with any lawful notice given by
Lessor to pay rent, or install the fencing in a timely manner, or
quit the demised premises, and Lessee hereby agrees that it, or
any mortgagee of the term, or any person interested in the
continuance of the term, shall never make application for relief
under Section 1179 of the Code of Civil Procedure of the State of
California.
13. Time is of the essence of this Lease and of each and
every provision thereof.
14. Should Lessor be compelled to resort to legal action to
obtain possession or to enforce any of the covenants of this
Lease, Lessee shall pay reasonable attorneys ' fees therefor and
all other damages which Lessor may suffer.
15. Any notices or demands that may be given by either
party hereunder, including notice of default and notice of
termination, shall be deemed to have been fully and properly
given when made in writing, enclosed in a sealed envelope, and
deposited in the United States Post Office, certified mail,
postage prepaid, addressed as follows: to Lessor c/o Director of
Airports, 760 Parkview Avenue, Redding, California 96001-3396;
and to Lessee at Dersch Road, Anderson, California 96007 .
16. Lessee has inspected the premises and accepts them in
an "as is' condition. Lessee expressly holds Lessor and Lessor' s
officers, agents, and employees harmless from any and all
liability whatsoever to any persons, including Lessee, its
officers, agents, and employees, for personal injuries or
property damage occurring as the product of trespass or coming
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upon the demised property by any animals belonging to a person or
persons other than Lessor, and Lessee expressly waives any claim
for damages against Lessor arising out of any entrance upon the
demised premises of the animals of others , including animals
belonging to other lessees of Lessor, occurring as a result of
the existing condition of the fences around the demised premises,
or otherwise.
17. Lessee expressly agrees that it will erect and maintain
any and all fences required to hold its livestock within the
pasture herein let and demised to it. Lessee further agrees to
leave said premises at the termination of this Lease in a good
and clean condition.
18. If the subject premises are required for Municipal
Airport use, this Lease may be cancelled by Lessor at any time
during the term hereof upon giving Lessee six (6) months ' advance
notice in writing of such cancellation.
19. Lessee expressly waives any claim for damage done to
its crops as a result of Airport operations in the area,
expressly the taking off and landing of aircraft.
20. This Lease is granted upon the express condition that
City shall be free from any and all liability and claims for
damages for personal injury, death, or property damage in any way
connected with Lessee' s use of the premises herein leased,
including claims of Lessee, its officers , agents, and employees.
Lessee shall indemnify and save harmless City, its officers,
agents, and employees, from any and all liability, loss, cost, or
obligation on account of or arising out of any such injury,
death, or loss caused by the negligence or other legal fault of
Lessee or its officers , agents, and employees.
21. Lessee shall maintain, at its sole expense, during the
term of this Lease comprehensive general liability insurance
insuring it and Lessor, its officers, agents, and employees, in
the sum of $500,000 .00 combined single limits, and such insurance
shall protect Lessee and Lessor from any and all liability
whatsoever to any person resulting from the operation and
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maintenance of said leased premises by Lessee and the conduct of
any activities in the operation of these premises . Lessee shall
provide Lessor with a Certificate evidencing such insurance,
naming Lessor, its officers , agents, and employees, as additional
insureds, and guaranteeing Lessor ten (10) days ' written notice
-Lrior to any cancellation or reduction in such insurance
coverage. Such Certificate of Insurance shall he approved by the
Risk Manager of Lessor and filed with him prior to the commence-
ient of the term hereof.
22. If Lessee should be adjudged banerupt, either by
voluntary or involuntary proceedings, or if Lessee should dis-
continue business, or fail in business, or abandon or vacate said
premises, or make an assignment for the benefit of creditors, or
if said demised premises should come into possession and control
of any trustee in bankruptcy, or if any receiver should be
appointed in any action or proceeding with power to take charge,
possession, control, or care of said demised property, Lessor
shall have the option to forthwith terminate this Lease and to
re-enter said demised premises and take possession thereof. In
no event shall this Lease be deemed an asset of Lessee after
adjudication in bankruptcy. -
23. Lessee shall not, without the previous consent in
writing of Lessor, assign this Lease or any interest therein, nor
underlet or sublet the whole or any part of said premises. Any
purported assignment, either direct or by operation of law, or
under or in pursuance of .any order, judgment, decree, or process
of any Court, shall be wholly void and shall, at the option of
Lessor, work a forfeiture of this Lease. The consent of Lessor
tc the first or any other assignment shall not be a consent to
any subsequent assignment, but the prohibition against assignment
without consent shall continue in force as against any assignee.
24 . Lessor shall have the right to post notices on said
leased premises of non-liability under and pursuant to the laws
of the State of California for any work done on said premises,
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410
and Lessee agrees to notify Lessor in writinc immediately that
anv work at any time is commenced on said premises.
25. Lessee agrees that it will not commit any waste on said
premises, nor any public or private nuisance thereon.
26. Clearing of the land by Lessee will include complete
removal of all low brush and scrub growth and the selective
removal of trees to make possible Lessee' s aptroved activity of
growing lawful crops, namely range clover; agricultural
activities incidental to growing such crops; pasturing of
livestock; and to make possible a visual see-through capability
that will satisfactorily enable security surveillance and
observation of that remote portion of the Airport property.
27. Subject to the provisions respecting assignment,
underletting, or subletting herein, the conditions, covenants ,
and agreements herein contained shall inure to the benefit of and
be binding upon the successors and assigns of the parties hereto.
28. Lessee shall pay any and all possessory interest taxes
levied by the Shasta County Assessor against the land and
existing improvements which are now on the demised premises .
29. Any and all maintenance of the demised premises shall
be at the sole cost and expense of Lessee, which expressly
includes the cost of any and all irrigation water obtained from
any source. If Lessee desires to place any improvements on the
subject premises, or to demolish and remove anv existing dilapi-
dated and substandard improvements, Lessee covenants and agrees
that it will first obtain the consent in writing of Lessor as to
any such improvements, alterations, or demolition. Lessee
expressly agrees that it will leave said premises at the termi-
nation of this Lease in a good and clean condition.
30. It is understood and agreed that this Lease, insofar as
it pertains to the use of the Redding Municipal Airport, is
subject to the covenants, restrictions, and reservations
contained in the following instruments to which the United States
of America is a party:
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(1) Quitclaim Deed dated June 3 , 1947 , to the City of
Redding;
(2) Instrument of Transfer dated October 7 , 1947 , to the
City of Redding; and
(3) Grant Agreements of record executed by the City of
Redding in connection with Federal Aid Airport
Projects.
31. To comply with Federal Aviation Administration require-
-ents, Lessee, for itself, its successors and assigns , as a part
cf the consideration hereof, does hereby covenant and agree , as a
covenant running with the land:
(1) That in the event facilities are constructed,
maintained, or otherwise operated on the property
described in this Lease for a purpose for which a
Department of Transport program or activity is
extended, or for another purpose involving the
provision of similar services or benefits, Lessee shall
maintain and operate such facilities and services in
compliance with all other requirements imposed pursuant
to Title 49 , Code of Federal Regulations, DOT, Subtitle
A, Office of the Secretary, Part 21 , Nondiscrimination
in Federally-Assisted Programs of the Department of
Transportation--Effectuation of Title VI of the Civil
Rights Act of 1964 , and as said Regulations may be
amended.
(2) That (a) no person on the grounds of race, color, or
national origin shall be excluded from participation
in, denied the benefits of, or be otherwise subjected
to discrimination in the use of said facilities; (b)
that in the construction of any improvements on, over,
or under such land and the furnishing of services
thereon, no person on the grounds of race, color, or
national origin shall be excluded from participation
in, denied the benefits of, or otherwise be subject to
discrimination; and (c) that Lessee shall use the
premises in compliance with all other requirements
imposed by or pursuant to Title 49, Code of Federal
Regulations, Department of Transportation, Subtitle A,
Office of the Secretary, Part 21 , Non-discrimination in
Federally-Assisted Programs of the Department of
Transportation--Effectuation of Title VI of the Civil
Rights Act of 1964 , and as said Regulations may be
amended.
(3) That in the event of breach of any of the above nondis-
crimination covenants, Lessor shall have the right to
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terminate this Lease and to re-enter and repossess said
land and the facilities thereon, and hold the same as
if said Lease had never been made or issued. This
provision does not become effective until the
procedures of 49 CFR Part 21 are followed and
completed, including expiration of appeal rights .
(4) That Lessee shall furnish its acco,mrodations and/or
services on a fair , equal, and not unjustly discrimi-
natory basis to all users thereof, and it shall charge
fair, reasonable , and not unjustly discriminatory
prices for each unit or service; provided that Lessee
may be allowed to make reasonable and nondiscriminatory
discounts, rebates , or other similar type of price
reductions to volume purchasers .
(5) That non-compliance with paragraph 31 (4) above shall
constitute a material breach thereof, and in the event
of non-compliance Lessor shall have the right to
terminate this Lease and the estate hereby created
without liability therefor, or at the election of
Lessor or the United States either or both said
Governments shall have the right to judicially enforce
provisions.
(6) That Lessee agrees that it shall insert the above five
provisions numbered 31 (1) through 31 (5) in any lease
agreement, contract, etc. , by which said Lessee grants
a right or privilege to any person, firm or corporation
to render accommodations and/or services to the public
on the premises herein leased.
(7) That Lessee assures that it will undertake an affir-
mative action program as required by 14 CFR Part 152 ,
Subpart E, to insure that no person shall, on the
grounds of race, creed, color, national origin, or sex,
be excluded from participating in any employment
activities covered in 14 CFR Part 152, Subpart E.
Lessee assures that no person shall be excluded on
these grounds from participating in cr receiving the
services or benefits of any program or activity covered
by this subpart. Lessee assures that it will require
that its covered suborganizations provide assurances to
Lessee that they similarly will undertake affirmative
action programs, and that they will require assurances
from their suborganizations, as required by 14 CFR 152 ,
Subpart E, to the same effort.
(8) That Lessor reserves the right to further develop or
improve the landing area of Redding Municipal Airport
as it sees fit, regardless of the desires or view of
Lessee and without interference or hindrance.
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(9) That Lessor reserves the right, r-_` shall not be
obligated to Lessee, to maintain and 1.e.ep in repair the
landing area of Redding Municipal Airport and all
publicly-owned facilities of said Airport, together
with the right to direct and control all activities of
Lessee in this regard.
(10) That this Lease shall be subordinate to the provisions
and requirements of any existing or future agreement
between Lessor and the United States relative to the
development, operation or maintenance of the Redding
Municipal Airport.
(11) That there is hereby reserved to Less==, its successors
and assigns, for the use and benefit of the public, a
right of flight for the passage of aircraft in the
airspace above the surface of the premises herein
leased. This public right of flight shall include the
right to cause in said airspace any noise inherent in
the operation of any aircraft used for navigation or
flight through said airspace or landing at, taking off
from, or operation on the Redding Municipal Airport.
(12) That Lessee agrees to comply with the notification and
review requirements covered in Part "7 of the Federal
Aviation Regulations in the event future construction
of a building is planned for the leased premises, or in
the event of any planned modification or alteration of
any present or future building or stricture situated on
the leased premises.
(13) That Lessee, by accepting this Lease, expressly agrees
for itself, its successors and assi ns, that it will
not erect nor permit the erection of any structure or
object, nor permit the growth of any tree, on the land
leased hereunder above the mean sea level elevation of
505 feet. In the event the aforesaid covenants are
breached, Lessor reserves the right to enter upon the
land leased hereunder and to remcve the offending
structure or object and cut the offending tree, all of
which shall be at the expense of Lessee.
(14) That Lessee , by accepting this Lease, agrees for
itself, its successors and assigns , that it will not
make use of the leased premises in any manner which
might interfere with the landing and taking off of
aircraft from the Redding Municipal Airport, or other-
wise constitute a hazard. In the event the aforesaid
covenant is breached, Lessor reserves the right to
enter upon the premises hereby leased and cause the
abatement of such interference at the expense of
Lessee.
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32. The Lease herein granted is subject to cancellation by
City at any time in the event:
(a) The Federal Aviation Agency advises City that the
continuation of the rights and privileges under this
Lease is hazardous to the safety of aircraft using said
Airport, or flying in the vicinity; or
(b) The United States Government elects to take over said
Airport as a national defense measure; or
(c) The Federal Aviation Agency advises City that the
automobiles or other devices used by Lessee hereunder
interfere with the transmission or receiving of radio
signals from the T.V.O.R. facility located at said
Airport; or
(d) The Director of Airports determines that unsafe
practices or conditions exist as a result of Lessee' s
activity.
33. If any part of the leased premises shall be taken or
condemned for public or quasi-public use or for development of
aeronautical activity or for the development of other activity or
use deemed by the City to be in the better overall interest of
the Airports, and a part thereof remains and this part is suscep-
tible to continued use and occupancy by the Lessee under this
Agreement, the annual ground rental payable hereunder shall be
reduced in direct proportion to the reduction in the amount of
acreage used and occupied by the Lessee.
Such reduction in ground rental shall be effective
immediately upon vacation of the part of the premises leased by
the Lessee to be used for such purposes as described above . If
the Lessee and Lessor agree that the remaining part of the leased
premises is inadequate for the uses outlined under this
Agreement, or if all of the leased premises are necessary for
taking or condemnation as described above, Lessor shall have the
option to terminate this Agreement in its entirety by providing
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said notice of termination to Lessee in writing ninety (90) days
for to the termination date.
In the event of the above-described taking or condemnation
cf the leased premises within Parcel B, then Lessor and Lessee
stall negotiate a prorated reimbursement to Lessee for Lessee' s
fencing improvements to Parcel B estimated to initially cost up
tD $20,000. Said negotiations will, at the least, be based upon
the reduced rental rate for Parcel B of $2 . 50 per acre per year,
which was established to assist Lessee in his amortization of
said improvements which are greatly beneficial to the Airport,
and whether or not any of the fencing is still in use by Lessee .
34. It has been determined that this matter is
categorically exempt from the provisions of the California
Environmental Quality Act.
IN WITNESS WHEREOF, the parties hereto have executed this
Lease in the presence of their officers duly authorized in that
behalf on the day and year set forth below.
CITY OF REDDING
Dated: , 1990 By:
SCOTT CARTER, Mayor
HAWES RIVER ACRES, INC.
Dated: /� , 1990 By: -�/"�
GLENN E. HAWES
ATTEST: FORM APPROVED:
ETHEL A. NICHOLS, City Clerk RANDALL A. HAYS, City Attorney
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