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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. -2- • 4 III (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, -3- i 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. -4- 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 -5- • • 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 -6- 4 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, -7- 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: -8- I (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 -9- • 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. -10- • • (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. -11- • • 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 -12- . • 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 -13- I.,•*1 . 1 ,„, : ;, .\\,. , , . ,. ' i }17, H i\ ii I\ _ '17: 7:t1 ' . ! 'i., , , ;," .' I. I _- � -_ - �, ,-- \ ii l lc L _ ! •/ • ‘.6t— -,• (----_-_, ---- r v , ,' / . _ ty,. ,0 % pr \-.<*? 3 'n i ----t 1j411,11Th /, \\\ G \o\ 'Qa (C�\;.\ i $ lax I Z e ,�. / ill z( 17,21--- f,.4 0 N ;.:,K -.4), \\ s 1 '.! ' ' 1 91 '-'7N'' .. W U R ; �\ ~/ I \� \ • i P: > AID' z 1 \\V/..a 1,J� o I ,os� VifIW Hi. cHØ' . "�• /1.1• - ____. w . .�9� IIIII to �` 44 •A ii 1111 8"�x. a _ J L' a L ! 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