HomeMy WebLinkAboutMINUTES - 11042008 - 2008-726 TO: BOARD OF SUPERVISORSContra
FROM: Keith Freitas, Director of Airports si s Costa
DATE: November 4, 2008 `$v Co u ntv
STA ebun'�'�
SUBJECT: APPROVE and AUTHORIZE the Director of Airports,or designee,to execute a Long-Term Lease
with AeroSports, Inc., dba Bay Area Skydiving, for a Byron Airport Aviation Project, Byron Area
(District III).
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
I. Recommended Action:
APPROVE and AUTHORIZE the Director of Airports, or designee, to EXECUTE, on behalf of the
County, a long-term ground lease between the County, as landlord, and AeroSports, Inc. dba Bay Area
Skydiving, as tenant, in the amount of $800 per month with incremental increases, for the lease of
approximately 37,462 square feet of land located at 3000 Armstrong Road,for the period of November 2008
to December 2018 (the "Lease").
II. FINANCIAL IMPACT:
There is no negative impact on the General Fund. The Airport Enterprise Fund will receive lease rental and
other revenues and the County General Fund will receive property,sales and possessory interest tax revenues
from this development.
Continued on Attachment: X SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR
RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON,41d Cor',77! y.� #P0RO D AS RECOMMEN ED OTHER
VOT F SUPERVISORS
UNANIMOUS(ABSENT 6»Ci ) I hereby certify that this is a true and correct copy of an action
AYES: NOES: taken and entered on the minutes of the Board of Supervisors on
ABSENT: ABSTAIN: the date shown.
ATTESTED:
Orig.Div: Airport DAVID TWA,Clerk of the Board of Sup visors and County
Contact: Beth Lee, Phone(925)646-5722 Administrator
cc: County Administrator
Auditor-Controller
Community Development
Public Works Director By ?� Deputy
Public Works Accounting
Federal Aviation Administration
Public Works Real Property
General Services Lease Management
SUBJECT: Authorization to Execute a Long-Term Lease with AeroSports, Inc., Byron Airport
DATE: November 4, 2008
PAGE 2
III. REASONS FOR RECOMMENDATIONBACKGROUND:
The Lease between Contra Costa County and AeroSports, Inc. dba Bay Area Skydiving, supersedes and
replaces the original lease between the County and AeroSports dated June 16, 1991. This new Lease is for a
ten-year term that expires in 2018. The tenant has the right to request two additional ten-year extensions of
the original term, which the County may deny in its sole discretion.
The Lease will permit a continuation of needed and desired general aviation activities and services at the
Byron Airport. This general aviation focus is consistent with the policies identified within the Byron
Airport Master Plan. Further, the Lease will provide rental and sales tax revenue to the Airport Enterprise
Fund and County General Fund.
A copy of the Lease signed by the tenant is attached hereto.
.IV. CONSEQUENCES OF NEGATIVE ACTION:
The County General Fund and the Airport Enterprise Fund would not realize the additional revenues. The
County-owned land and building would be vacated and could negatively impact general aviation aircraft
facilities, services and Airport demand needs.
i
L EAS E
BETWEEN
CONTRA COSTA COUNTY
AND
AEROSPOR.TS, INC. dba
BAY AREA SKYDIVING
For Operation at the
BYRON, AIRPORT
' 1
TABLE OF CONTENTS
AEROSPORTS, INC. dba
BAY AREA SKYDIVING
1. PARTIES...............................................................................................................................3
2. PURPOSE.............................................................................................................................3
3. PREMISES............................................................................................................................3
4. USE......................................................................................................................................3
5. TERM .....................................................................................................................................4
6. HOLDING OVER...................................................................................................................5
7. RENT..........................:.........................................................................................................5
8. PERCENTAGE RENT AND OTHER ADDITIONAL RENT ........................................................9
9. ADDITIONAL PAYMENT PROVISIONS...........................:.............................................:......10
10. ADVERTISING AND SIGNAGE..........................................................................................11
11. SITE IMPROVEMENTS ......................................................................................................11
12. ALTERATIONS AND ADDITIONS..........................................................:............................14
13. SURRENDER OF POSSESSION .......................................................................................14
14. MAINTENANCE, REPAIR AND STORAGE........................................................................15
15. UTILITIES ..................................................................:......................................................15
16. WASTE, QUIET CONDUCT, NUISANCE, AND POLLUTION ...............................................15
17. HAZARDOUS MATERIALS..............................:........................:.........................................16
18. STORM WATER DISCHARGE......................................................................................,.....17
19. RULES AND REGULATIONS; UNLAWFUL USE.................................................................18
20. SECURITY........................................................................................................................18
21. HOLD HARMLESS AND INDEMNIFICATION..............:.......................................................18
22. INSURANCE........8"......................:
. ............................................:......................................18
23. TAXES..............................................................................................................................20
24. INSPECTION, ACCESS AND NOTICE ...............................................................................20
25. SALE, ASSIGNMENT OR SUBLETTING.............................................................................20
26. DEFAULT AND REMEDIES ...............................................................................................21
27. WAIVER, VOLUNTARY ACTS.....,....................................................................................:.22
28. DESTRUCTION.................................................................................................................22
29. CONDEMNATION .............................................................................................................22
30. COUNTY'S PROCESSING AND TRANSACTION FEES......................................................22
31. NON-DISCRIMINATION.....................................................................:...............................23
32. - CHOICE OF LAW..............................................................................................................24
33. OPERATION OF AIRPORT BY COUNTY; FAA REQUIREMENTS .......................................24
34. NOISE ORDINANCE.......................................................................................................................25
35. DEVELOPMENT OF PREMISES...........:........................................................................................... 25
36. GENERAL PROVISIONS ...................................................................................................25
37. SIGNATURES.............................................................................................'......................27
EXHIBIT "A - Site Plan
2
LEASE
BETWEEN
CONTRA COSTA COUNTY
AND AEROSPORTS, INC. DBA BAY AREA SKYDIVING
1. PARTIES
A. Effective the COUNTY OF CONTRA COSTA, a political subdivision
of the State of California ("County") and AEROSPORTS, INC. DBA BAY AREA
SKYDIVING, a California Corporation, ("Tenant") hereby mutually agree and promise
as follows:
B. This lease between County and Tenant ("Lease") replaces the license between County
and Tenant dated June 16, 1991. Effective on the "Commencement Date" (as defined
below) of this Lease said prior license shall have no force or effect.
2. PURPOSE
The purpose of this Lease is to lease to Tenant a portion of the Bryon Airport described
hereinafter-as the' Premises to Tenant for the operation of a skydiving school and related
.activities as described below. Byron Airport is a public Airport located on unincorporated land
owned by County'near Byron, California, as shown on the Airport Layout Plan (the "Airport"),
which is on file in the office of the Director of Airports.
3. PREMISES
For and in consideration of the rent and faithful performance by Tenant of the terms and
conditions and the mutual covenants hereof, County does hereby lease to Tenant and Tenant
hereby leases from County, subject to all easements and encumbrances of.record; and subject
to certain restrictions described herein, that parcel of real property consisting of approximately
0:86 acres of land, located at the northwesterly comer of the Airport, near Byron, California, as
shown generally on Exhibit "A" - Site Plan, which exhibit is attached hereto and made a part
hereof, and the full use of the space located in the County building (total of approximately
5,000 square feet) commonly know and designated as 3000 Armstrong Road, Byron,
California which shall herein be referred to together as the "Premises." In addition to the
Premises, Tenant shall have a right of access to the Airport taxis and runways at the "west
side gate" of the Airport, as shown on Exhibit "A" and Tenant shall utilize a "Drop Zone"
specified by the Director of Airports. The "Drop Zone" may be modified from'time-to-time by
the Director of Airports in the interest of safety.
4. USE
The Premises may be used by Tenant only for aircraft storage, and for the operation of a
skydiving school and related activities limited to the following: (i) sales and service of
skydiving equipment, (ii) skydiving lessons, and (iii) charter flights for skydiving lessons.
In addition, Tenant may operate a fueling facility or fuel truck on the Premises for the purpose
of self-fueling of based aircraft only. The fueling truck shall be operated and maintained by
Tenant's authorized personnel strictly within both the provisions of Contra Costa County
Ordinances 87-8 and 88-82, as amended, and the rules and regulations of all other entities
having jurisdiction over the Airport, and all self-fueling must be in compliance with Federal
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Aviation Administration Advisory Circular 150/5190-5. The fueling truck must be in compliance
with all applicable rules and regulations at all times throughout the term of this Lease. No
fueling of automobiles or trucks is allowed on the Premises. With respect to non-Tenant
owned aircraft, Tenant may not taxi such aircraft to Tenant's fueling facility, or deliver fuel to
such aircraft by operation of a fuel truck, or provide any other assistance in the fueling of such
aircraft.
Tenant shall not use the Premises, or permit others to use the Premises, for any other purpose
(including without limitation skydiving events) without the prior written approval of the Director
of Airports, which may be withheld in the Director's sole discretion.
Tenant shall comply with any safety directives by the Director of Airports or his designated
representative relating to safety items. Unsafe practices must be corrected immediately. .The
Director of Airports or his designated representative may require the use of a radio equipped
ground safety officer on duty during all times when the skydiving activities are occurring. Prior
to commencing any skydiving activities, Tenant shall obtain approval, and provide written
evidence to County of such approval, from the. Federal Aviation Administration air traffic staff
acknowledging skydiving activities near or through published airways.
5. TERM
A. TERM: This Lease is for a term of ten (10)years (the 'Term"), commencing on_
, 2008, (the "Commencement Date"), and expiring on ,
2018. The Commencement Date shall also be known as the first day of year one of the
Lease.
B. EXTENSION: No earlier than the beginning of the seventh (7th) year of the Lease Term,
and no later than the end of the ninth (9th) year of the Lease Term, Tenant may request
that the Term of this Lease be extended for an additional ten (10) year period (the
"Extension Period") by giving the County sixty (60) days prior written notice of its desire
to extend the Term (the "Extension Request"). The Extension Request shall be deemed
received by the County upon the Director of Airport's execution of an Acknowledgement
of Receipt of the Extension Request. The Director of Airports, in his or her sole
discretion may, but shall not be required to, provide written authorization to extend the
Lease Term for the Extension Period on the same terms and conditions contained
herein. The Director of Airports will respond in Writing to Tenant within sixty (60) days
after receipt of the Extension Request. Failure by the Director of Airports to respond in
writing within the sixty (60) day period shall operate as a denial of the Extension
Request. No earlier than the beginning of the seventh (7th) year of the Extension
Period, and no later than the ninth (9th) year of the Extension Period, Tenant may
request that the Term of this Lease be extended for a second ten (10) year period by
following the same terms and conditions described in this Section.
Tenant shall have no right to extend the Lease Term if, prior to delivering either the first
or the second Extension Request, the Lease has been cancelled, or if Tenant is in
default at the time it delivers the first or the second Extension Request or at any time
thereafter. Failure to deliver either Extension Request within the timeframe 'set forth
above shall constitute a waiver of Tenant's right to request an extension of the Lease
Term.
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6. HOLDING OVER
In the event Tenant shall remain in possession of the Premises after the expiration of the term
of this Lease, such holding over shall not be deemed to operate as a renewal or extension of
this Lease, but shall only create a tenancy from month.to month, which may be terminated at
any time by County or Tenant upon thirty (30) days written notice. All terms and conditions of
this Lease then in place shall govem the month-to-month tenancy.
7. RENT
Tenant shall pay rent commencing on the Commencement Date. Rent shall be payable in
advance and without demand on or before the first day of each month during the Term of this
Lease. Rent for any partial month shall be prorated at a rate of 1/30th of the applicable
monthly Rent per day.
A. Ground Rent. Tenant shall pay to County as consideration for the use of the Premises,
ground rent in the amount of Eight Hundred Dollars and No/100 Dollars ($800.00)
("Ground Rent") per month.
Effective upon the first day of Years 2 through 9 of the Lease, Years 11-19 (if
applicable) and Years 21 through 29 (if applicable), Ground Rent shall be increased (or
remain unchanged-but not decreased) based upon the change in the Consumer Price
Index ("CPI") for the most recent one year period ending June 30. 2008 (the "CPI
Adjustment"). CPI,.as used herein, shall mean the Consumer Price Index for all Urban
Consumers, All Items, for the San Francisco-Oakland-San Jose Metropolitan Area .
(1982-84 = 100), as published by the Bureau of Labor Statistics of the U. S. Department
of Labor, or its successor. At no time will the Rent be decreased by a CPI Adjustment..
In the event there is a decrease in the CPI, the monthly Rent for the year in question
shall be the same as the monthly Rent for.the preceding year.
County will notify Tenant of any increase in the Ground Rent when County completes its
calculation of the increased Ground Rent. If the notice of increased Ground Rent is
provided after the effective date of the increase, Tenant will pay any increased Ground
Rent retroactively to the effective date within ten (10) days following the date of
County's notice to Tenant.
B. Revaluation of Ground Rent. Ground Rent shall be revalued by County on the ninth
(9 ) anniversary of the Commencement Date, and. thereafter, at the end of each
succeeding nine (9) year period of the Lease Term. Ground Rent shall be revalued on
, 2017, and, 2026 ("Revaluation Dates"). Ground Rent shall be
revalued based upon the fair market rental value of the Premises in their as-is condition,
using the Revaluation Process described in this Section below, provided, however, that
the revalued Ground Rent shall never be less than the Ground Rent during the
preceding year. in other words, in the event there is a decrease in the fair market rental
value for the year in question, the revalued Ground Rent shall be the same as the
Ground Rent for the preceding -year. Prior to each Revaluation Date, County shall
initiate the Ground Rent revaluation process as set forth in detail in subsection B(2)
below, (the "Revaluation Process") for the determination of Ground Rent for the
following period. Ground Rent established- through the Revaluation Process shall be
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reviewed annually for CPI adjustment pursuant to the process set forth in Section 7.A.
Ground Rent.
(1) Conditions of Revaluation: The revaluation of Ground Rent, including any
appraisals prepared as part of the Revaluation Process, shall be conducted .
under the following conditions:
a) All negotiations and actions taken by County and Tenant under this
Section shall be undertaken and conducted by the parties in good faith.
b) If the Revaluation Process is not concluded by the Revaluation Date, the
Ground Rent determined by the Revaluation .Process described herein
shall be retroactive to the Revaluation Date to which the Revaluation
Process applies. Tenant shall make any retroactive payments of Ground
Rent no later than ten (10) days following the completion of the
Revaluation Process.
c) Except as otherwise provided herein, no waiver by County of any of the
provisions of this Section shall be deemed to have been made by County,
unless made expressly in writing by the Director of Airports and no waiver
by Tenant shall be deemed to have been made unless made expressly in
writing by the duly authorized agent of Tenant.
d) All time periods specified in this Section shall be counted in calendar days.
(2) Revaluation Process: The Revaluation Process shall consist of the following:
a) The County shall make an initial determination of the amount of the
Ground Rent .revaluation (the "County Revaluation") and shall notify
Tenant in writing of the amount of the new monthly Ground Rent
("Revaluation Notice").
b) If Tenant disagrees with the County Revaluation, the Tenant may file with
the County a dispute of the amount of the County Revaluation ("Tenant
Dispute") and include Tenant's proposed Ground Rent revaluation
amount. The Tenant Dispute must be in writing and delivered to the
Director of Airports no later than twenty-one (21) days after the
Revaluation Notice is mailed to Tenant ("Dispute Period"). In the event
that the Tenant does not file a Tenant Dispute with the County within the
Dispute Period, the County Revaluation shall automatically be deemed to
be accepted by Tenant, Tenant shall be deemed to have waived the right
to contest the amount of the County Revaluation, and the new Ground
Rent, as initially determined by the County, shall become effective on the,
applicable Revaluation Date, and the Revaluation Process shall be
concluded.
c) If Tenant delivers a Tenant Dispute to the County within the Dispute
Period, County and Tenant shall have twenty-one (21) days following
County's receipt of the Tenant Dispute to attempt to establish a new
Ground Rent by negotiation ("Rent Negotiation Period"). The Rent
Negotiation Period may not be extended beyond the initial twenty-one (21)
6
day period except by mutual written agreement of the Tenant and the
Director of Airports.
d) If County and Tenant are unable to agree upon a new Ground Rent during
the Rent Negotiation Period, including any agreed upon written extension
thereof, then County and Tenant shall proceed to the next. step in the
Revaluation Process by each appointing an appraiser to appraise the fair
market value of the Premises and providing written notice to the other
identifying that party's appraiser. The appointment of the appraiser shall
be made and notice of the appointment shall be given to the other party .
not less than twenty-one (21)days after the end of the Rent Negotiation
Period (including any agreed-upon extension thereof) ("Selection
Period"). Each appraiser shall be a member of the American Institute of
Real Estate Appraisers, have the designation of Member of the Appraisal
Institute ("MAI"), and shall have current aviation appraisal experience in
appraising property in the geographic real estate market where the
Premises is situated. Each party shall be. responsible for paying the fees
and costs of the appraiser it has selected.
In the event that Tenant does not appoint an appraiser and provide
County with written notice of the appointment within the Selection Period:
(i) the initial County Revaluation shall automatically be deemed to be
accepted by Tenant, (ii) the new monthly Ground Rent, as initially
determined by the County Revaluation, shall become effective on the
applicable Revaluation Date,.(iii) Tenant shall be deemed to have waived
the right to further contest the amount of the County Revaluation by
arbitration or in any other manner, and (iv) the Revaluation Process shall
be concluded.
In the event that County does not appoint an appraiser and provide
Tenant with written notice of the appointment within the Selection Period
specified in this Section above, (i) the new monthly Ground Rent shall be
the Ground Rent as determined by Tenant's appraiser, or the Ground.
Rent for the preceding year, whichever is greater, (ii) such new monthly
Ground Rent shall become effective on the applicable Revaluation Date,
(iii) County shall be deemed to have waived the right to contest the
amount of the new monthly Ground Rent by arbitration or in any other
manner, and (iv)the Revaluation Process shall be concluded.
e) If County and Tenant each properly appoint an appraiser during the
Selection Period, the issue of the Ground Rent revaluation shall be
submitted to the two appraisers to .each make an independent
determination of the fair market value of the Premises. Each appraisal
must be completed and a copy of the appraisal report delivered to the
other .party no later than sixty (60) days from the date of his or her
appointment ("Appraisal Period") unless otherwise extended by the .
mutual agreement of County and Tenant.
f) Upon completion of both of the above appraisals, County and Tenant shall
make a final attempt to establish a new .monthly Ground Rent by
negotiation. In the event that County and Tenant cannot agree on a
revaluation of the monthly Ground Rent, either County or Tenant may
declare an impasse in the negotiations by providing written notice of the
impasse to the other party. The written notice of impasse (referred to
hereinafter as the "Final Proposal') shall include all of the following
information: (i) a statement that the declaring party has determined that
negotiations have reached an impasse; (ii) the declaring party's final
proposed Ground Rent revaluation figure; (iii) a statement that the
recipient has ten (10) days to either give written acceptance of the amount
of the Ground Rent revaluation specified in the Final Proposal or deliver a
counter-final proposal ("Counter-Final Proposal') to the declaring party;
and (iv) any other supplementary information as the declaring party deems
appropriate. The party upon whom the Final Proposal is served shall then
have ten (10) days following receipt of the Final Proposal to either accept
the Final Proposal or to reject the Final'Proposal and deliver a Counter-
Final Proposal to the declaring party.
g) If neither the Final Proposal nor the Counter Final Proposal is accepted,
not later than thirty-five (35) days after delivery of the Final Proposal, the
appraiser selected by County and the appraiser selected by Tenant shall
jointly select a third appraiser with the designation of MAI (Member of the
Appraisal Institute).and with current aviation appraisal experience and who
has substantial experience in appraising property in the geographic real
estate market where the Premises is situated. The third appraiser will
determine the fair market value of the Premises. The third appraiser shall
render a final written decision within thirty -(30) days of his or her.
appointment. The cost of the third appraiser shall be shared equally by
County and Tenant. The appraisers decision as to the fair market value
of the Premises shall be binding on all parties and shall apply retroactively
to the Revaluation Date.
C. Fuel Flowage Fees: On the first day of each calendar quarter, Tenant shall pay to'
County a fuel flowage fee for the preceding quarter equal to $0.08 per gallon (the "Fuel
Flowage Fee") for all fuel dispensed-on the Premises. The Fuel Flowage Fee shall
increase annually by $0.005 per gallon. The first annual increase shall take place one
(1) year from the Commencement Date.
The Fuer Flowage Fee shall be reviewed and may be revised by County in its sole
discretion every five (5) years after the Commencement Date of this Lease. County
shall give notice to Tenant in writing of any revised Fuel Flowage Fee, which shall be
effective the month after such notice is given.
All fuel dispensed on the Premises must be dispensed strictly in accordance with
Section 4. Use. above.
D. Records to. Be Maintained. Tenant shall record all sales or other transactions., whether
cash or credit, and shall keep full and accurate books of account and records in
accordance with United States Generally Accepted Accounting Principles consistently
applied, including without limitation, a sales journal general ledger, and all bank account
statements showing deposits of all "Gross Receipts" (as defined below). In addition,
Tenant shall keep all cash register receipts with regard to all Gross Receipts, credits,
8
refunds and other pertinent transactions,as well as a record of any other exclusions or
deductions from Gross Receipts.
8. PERCENTAGE RENT AND OTHER ADDITIONAL RENT
In addition to the payment of Ground Rent, Tenant shall pay percentage rent to County in an
amount equal to (i) two percent (2%) of the Gross Receipts generated from business approved
by the Director of Airports pursuant to Section 4. USE, conducted on the Premises.
Percentage Rent shall be paid no later than the tenth (10) of the month for the previous
month's Gross Receipts.
A. Gross Receipts. The term "Gross Receipts" is defined as all revenue and receipts
received by the Tenant and.derived from or delated to the Premises, including, but not
limited to, all rent revenue and receipts received from sublessees, if any, the gross
amount received from all sales and cash payments received therefor, credit extended at
the time of a credit sale, all charges for services performed on the Premises, and the
.gross amount received from any and all of the sources of income derived from the
business conducted on the Premises. The term "Gross Receipts" shall not include the
sale price of fixtures, equipment or property not sold in the ordinary course of business.
In the case of insurance sales and premiums, Gross Receipts shall refer only to the
commissions received.
B. Statement of Gross Receipts and Percentage Rent Review. Tenant shall furnish to
County a written statement of monthly Gross Receipts ("Statement of Gross
Receipts")within thirty(30) days after the close of each calendar quarter.
C. Certified Annual Statement. Within one.hundred twenty (120) days following the close
of Tenant's fiscal year, and within one hundred twenty (120) days following the
termination of this Lease, Tenant shall deliver to County an annual statement of Gross
Receipts, certified as being correct by an authorized accounting officer of the Tenant
("Certified Annual Statement').
D. Inspection of Records. County shall have the right to inspect the books and records of
Tenant from which any Statement of Gross Receipts or Certified Annual Statement is
prepared at any reasonable time upon request. For this purpose, Tenant shall keep for
a period of five (5) years after submission to County of any such statement, all of
Tenant's records, books, accounts and other data pertaining or necessary to the
verification of Gross Receipts as defined herein, and. shall, upon request, make the
same available to County and/or County's auditor, representative or agent for
examination at any time during said five (5) year period. Failure to keep, maintain and
make available, the records, books, accounts and other data as required by this section
shall constitute a default of this Lease.
E. Audits., County, at its sole cost and expense, may engage the services of an
independent certified public accountant to audit and verify the accuracy of Tenant's
records, books, and accounts including the Certified Annual Statement. In the event the
audit shows that an additional amount of Percentage Rent is due and payable to
County, Tenant shall make such payment within (7) days to County. If the audit shows
that there has been an overpayment of Percentage Rent, County shall, at the sole
option of.County, promptly repay to Tenant the amount of such overpayment or credit
same to any future rent due County by Tenant. If the audit shows a discrepancy that is
9
greater than five percent (5%) of the Percentage Rent paid to County, Tenant shall pay
for the audit.
F. Additional Rent. In addition to Ground Rent and Percentage Rent, and the Fuel
Flowage Fee described above, Tenant shall pay, as additional rent all other charges,
costs and fees required to be paid by Tenant pursuant to the provisions of this Lease
(such amounts, "Additional Rent," and together with Ground Rent, Percentage Rent
and the Fuel Flowage Fee, "Rent").
9. ADDITIONAL PAYMENT PROVISIONS
A. Late Rental Payments: In the event Tenant fails to pay County any amount due under
this Lease within five (5) days after such amount is due, Tenant shall pay to County a
late charge of One Hundred and No/100 Dollars ($100.00) per occurrence (the "Late
Charge"), plus interest on said unpaid balance at a rate of one and one-half percent
(1-1/2%) per month, from the date said payment was due and payable until paid in full.
Tenant shall pay all Late Charges, as Additional Rent on or before.the date the next
installment of Ground Rent is due. County and Tenant hereby agree that it is and will
be impracticable and extremely difficult to ascertain and fix County's actual damage
from any late payments and, thus, that Tenant shall pay as liquidated damages to
County the Late Charge specified in this Section, which is the result of the parties'
reasonable endeavor to estimate fair average compensation therefor (other than
attorneys' fees and costs). County's acceptance of the Late Charge as liquidated
damages shall not.constitute a waiver of Tenant's default with respect to the overdue
amount or prevent County from exercising any of the rights and remedies available to
County under this Lease.
B. Form and Place of Payment: All Rent and fees shall be paid in cash or by personal
check, certified check, or money order,-payable to the County of Contra Costa, and
must be received on or before due date at the Director of Airports Office, 550 Sally Ride
Drive, Concord, California 94520, or at such other place as County may designate from
time to time.
C. Returned Checks: If a check written by Tenant is returned for insufficient funds, County
may impose a reasonable service charge in addition to any Late Charge and in addition
to any charges imposed by the bank. County may require Tenant to pay Rent by
certified check or money order if Tenant's bank or banks have returned one or more
personal checks in a twelve.(12) month period.
D. Security Deposit: Upon execution of this Lease, Tenant shall pay to County the sum of
Two Thousand Seven Hundred Twenty-Two and 50/100 Dollars ($2,722.50) in cash or
by certified check or money order payable to the County of Contra Costa, as security for
the faithful performance of the terms, covenants, and conditions of this Lease (the
"Security Deposit"). If Tenant is in default under the terms of this Lease, County may
in its sole discretion (but shall not be required to) apply the Security Deposit, or any
portion of it, to any expense, loss or(i) any Rent or other sum in default, (ii) any amount
that County may spend or become obligated to spend in exercising County s rights
under this Lease, or (iii) damage sustained by County resulting from Tenant's default.
Upon demand by County, Tenant shall immediately pay to County a sum equal to the
portion of the Security Deposit expended or applied by County as provided in this
subsection so as to maintain the Security Deposit in the sum initially deposited. Upon
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the expiration or termination of this Lease and a final accounting by County, any
remaining Security Deposit balance shall be refunded to Tenant, without interest.
Tenant waives the provisions of California Civil .Code section 1950.7, and all other
provisions of law in force or that become in force after the date of execution of this
Lease, that provide that County may claim from a Security Deposit only those sums
reasonably necessary to remedy defaults in the payment of Rent, to repair damage
caused by Tenant or to clean the Premises. County and Tenant agree that County
may, in addition, claim those sums reasonably necessary to compensate County for any
other foreseeable or unforeseeable loss or damage caused by the act or omission of
Tenant or Tenant's officers, agents, employees, independent contractors or invitees.
10. ADVERTISING AND SIGNAGE
Tenant, at Tenant's sole cost and expense, may only erect and maintain on the Premises such
sign or signs ("Signage") of the type, style, size, design, and location permitted and approved
in writing by the Director of Airports. All Signage must be consistent with the written sign policy
of the Airport and in compliance with all applicable laws, rules, ordinances, and regulations and
required approvals, authorizations, and permits, prior to erecting any Signage. County
reserves the right to disapprove any of Tenant's Signage and to require Tenant to remove any
Signage.
11. SITE IMPROVEMENTS
Other than the uses described in Section 4.-USE, any new development or expansion of space
during the Lease Term will require approval in writing in advance by County along with any
necessary environmental review. The following steps will also be required.
A. Plans and County's Approval: Prior to requesting approval of its development plans
from the Director of Airports, Tenant shall obtain (at Tenant's sole cost and expense)
written approval of its development plans from an aviation engineer selected by County.
Tenant' shall then obtain the Director of Airports' written approval- of all plans and
specifications (together "Plans") for buildings, paving, landscaping, or other
improvements before any construction may be commenced. All improvements shall
conform with any general requirements of County and shall be constructed or installed
in conformance with the Plans, and all applicable statutes, ordinances, building codes,
applicable Airport or FAA policy and standards for development, and rules and
regulations of County, and such other authorities as may have jurisdiction over the
.Premises or Tenant's operations thereon, including, but not limited to, the Contra Costa
County Public Works Department, the Contra Costa County Department of
Conservation and Development, and/or the Federal Aviation Administration.
Tenant shall be solely responsible for obtaining all necessary permits and approvals,
and for paying any and all fees required for said construction. County's approval of
Tenant's Plans shall not constitute a representation or warranty as to such conformity
and responsibility shall remain at all times in Tenant.
Tenant .shall reimburse County for all costs incurred by County in connection with the
review and approval of Tenant's Plans, including without limitation all costs and
expenses associated with any environmental review of the Plans and all costs and
expenses arising as a result of the aviation engineer's review and approval of the Plans,
within ten (10) days of the date of County's request for reimbursement of such amounts.
• 11
B. Construction Schedule: Within thirty (30) days following approval of the Plans by the
aviation engineer, Tenant shall submit (i) three (3) sets of Plans which shall have been
reviewed and stamped by the aviation engineer and (ii) a detailed construction schedule
to the Director of Airports for review and approval or disapproval.
Tenant shall not submit the Plans to the Contra Costa County Department of
Conservation and Development until the Director of Airports has approved the Plans.
The Director of Airports' review and approval or disapproval shall be completed within
thirty (30) days of submission. If the Director of Airports disapproves of the Plans, the
Director of Airports will provide the reasons for its disapproval to Tenant, and Tenant
shall have thirty (30) days to revise the Plans, and resubmit them to the Director of
Airports. The Director of Airports' review and approval or disapproval of the revised
Plans will be completed within thirty(30)days of re-submission. Failure of the Director of
Airports to respond within thirty(30) days of re-submission shall be deemed disapproval
of the Plans. The Director of Airports' approval is separate and distinct from approvals
Tenant is required to obtain from County, other County Departments, and all other
authorities having jurisdiction over the Premises, and the requirements imposed on the
Director of Airports by this Section do not apply to other County Departments and
authorities. Within fourteen (14) days following approval of the Plans by the Director of
Airports, Tenant shall submit (i) the Plans to the Contra Costa County Department of
Conservation and Development for review and approval and (ii) satisfactory evidence (as
determined by the.Airport Land Use Commission) to the Airport Land Use Commission
that Tenant's intended use of the Premises is consistent with the Airport Land Use
Compatibility Plan. Tenant shall comply with all measures identified with the approved
conditions of approval for the Development Plan regarding the rezoning at the Airport
(County File DP 063031).
Tenant shall commence construction of the improvements shown on the Plans within
forty-five (45) days after receiving a grading permit for the improvements from the Contra
Costa County Department of Conservation and Development, and shall complete the
construction of the improvements within twelve (12) months after receiving the grading
permit and the Director of Airports' approval. Tenant shall provide County with a Notice
of Intent to Construct the improvements at least sixty (60) days prior to construction or
delivery of materials.
The deadlines provided in this Section may be extended upon written approval of the
Director of Airports in consideration of time lost as a result of work stoppages, strikes,
and shortages of material, acts of God, or other reasons beyond Tenant's control, as
determined by the Director of Airports, in his or her sole discretion.
C. Performance and Payment Bonds: Not less than ten (10) working days before the
commencement of construction of the improvements, Tenant shall, at its sole cost and
expense, furnish to County a payment bond of a surety company licensed to transact
business in the State of California, or other type of security satisfactory to the County,
with Tenant as principal, in the penalty sum of one hundred percent (100%) of the total
estimated cost of the improvements and all other necessary appurtenances specified in
the Plans, guaranteeing the payment of all labor, materials, provisions, supplies and
equipment used in, upon, for or about the performance of said construction work or
labor done thereon of any kind whatsoever and protecting County from any liability,
losses or damages arising therefrom. Simultaneously, Tenant shall also provide County
12
a performance bond of a surety company licensed to transact business in the State of
California, or other type of security satisfactory to County, with Tenant as principal, in an
amount equal to one hundred percent (100%) of the total estimated cost of the
improvements, guaranteeing faithful performance within twelve (12) months of the
commencement of all construction work associated with the improvements. Said bonds
or other security shall be in a form acceptable to County and shall name County as
obligee.
D. Inspection and Acceptance: Tenant shall be responsible for obtaining any necessary
permits from all Contra Costa County departments having jurisdiction over the Airport,
including but not limited to, the Department of Conservation and Development and the
Public Works Department, and all other agencies having jurisdiction over the Airport. All
Improvements, including but not limited to buildings, on the Premises, shall be subject
to inspection, testing, and acceptance in accordance with applicable law by the Contra.
Costa County Public Works Department and the Department of Conservation and
Development. Nothing in this Lease shall be construed as approval by County or any
other governmental entity acting in its or their governmental capacity of the
improvements or to release Tenant .from any governmental application, review or
requirement.
E. No Warranties: The inspection, testing and acceptance by Tenant under this or any
other Section of this Lease, of any plans submitted by or acts performed by County shall
not constitute a warranty by County, and shall not relieve Tenant of its obligation to fulfill
the provisions of this Lease and of the Plans as approved by County, nor shall County
be thereby estopped from exercising any of its remedies provided at law or equity or
under this Lease.
F. Engineering: County shall furnish Tenant with control information required for ground
and pavement elevations, specifications for earthwork, pavement, and drainage.
Tenant shall be responsible for all other engineering work and the accuracy thereof.
Any material deviations from the approved Plans must have prior written approval by
the County.
G. Utilities: Upon the prior written approval of the Director of Airports, Tenant may install
any utilities on the Premises at its own cost and expense and shall pay any and all'
connection, inspection, and service fees in connection therewith.
H. Paving and Concrete: Tenant shall upgrade the pavement for the aircraft movement
areas and concrete floors located on the Premises such that they will accommodate the
heaviest aircraft expected to operate in the area, or fully loaded fuel trucks, whichever is
of greater weight, with a minimum expected pavement life of no less than twenty-five
(25) years. All road.access shall be in accordance with Contra Costa County Public
Works Department standards.
I. Frontage Improvements: Tenant shall, at Tenant's sole expense, construct any
necessary frontage improvements. Said frontage improvements shall be completed
according to specifications furnished by County and approved by the Contra. Costa
County Public Works Department.
J. Notice of Nonresponsibility: A notice of County non-responsibility shall be_posted and
recorded by Tenant during construction in accordance with Civil Code Sections 3094
13 '
and 3129. Tenant shall mail a copy of the notice to the Director of Airports upon filing
with the County Recorder.
K. Signs: Tenant may erect signs and advertising media and place the same upon the
improvements in accordance with FAA and applicable Airport policy and standards for
development, after obtaining the written approval of the Director of Airports and of any
other public agency having jurisdiction.
12. ALTERATIONS AND ADDITIONS
Tenant accepts the Premises in an "as is" condition with no warranty, express or implied, on
the part of County as to the condition of any existing improvements, the condition of the soil or
the geology of the soil. Tenant shall not make any alterations to, or erect any structures or
make any exterior improvements, on the Premises without the prior written consent of County.
In addition, Tenant shall give County five (5) days notice in writing prior to the start of
construction of any alterations or additions previously approved by County. Any alteration or
addition approved by County shall be constructed at the sole cost and expense of Tenant.
In the event Tenant makes alterations or constructs additions that violate the conditions
contained in this Lease (an "Unauthorized Addition"), County has the right to direct Tenant
to remove any Unauthorized Addition, and upon such direction from County to Tenant, Tenant
shall remove any Unauthorized Addition at Tenant's sole cost and expense.
13. SURRENDER OF POSSESSION
On the expiration, or .termination or cancellation of this Lease, Tenant shall surrender to
County the Premises and all of Tenant's improvements and alterations in good condition
(ordinary wear and tear excepted), except for alterations and improvements that Tenant has.
the right to remove. or is obligated to remove under the provisions of this Lease. If County
does not desire title to such improvements, Tenant shall, upon written notice by County, and.at
Tenant's sole expense, restore the Premises to a condition satisfactory to County. If Tenant
falls to remove its personal property or other improvements from the Premises at County's
request, or fails to restore the Premises. to. a condition satisfactory to County, upon the
expiration, termination or cancellation of this Lease, said property may be removed, and said
restoration may be performed, by County at Tenant's sole expense, and the cost of said
removal or restoration shall be'deducted from Tenant's Security Deposit, as provided for in
Section 9D. Security Deposit. In the event that County's cost of performing the work just .
described is greater than the amount of the Security Deposit described herein held by County,
Tenant shall immediately pay to County the amount which will repay the amount expended by
County in full.-Such additional amounts shall be considered to be Additional Rent.
If Tenant fails to surrender any portion of the Premises to County on expiration or thirty (30)
days after termination or cancellation of the Lease, as required by this Section, Tenant shall
defend, indemnify, and hold harmless County from all claims, liability, costs, and damages
resulting from Tenant's failure to surrender the Premises, including, without limitation, claims
made by a succeeding lessee or sublessee resulting from Tenant's failure to surrender'the
Premises. Title to Tenant's personal property shall at all times during the term of this Lease, or
any extension thereof, remain in Tenant.
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14. MAINTENANCE, REPAIR AND STORAGE
A. Maintenance. Tenant shall, at its.sole expense, throughout the term of this Lease,
maintain the Premises in good order, condition, and repair. All maintenance, repairs,
and replacements shall be of a quality equal to or better than the current materials and
workmanship and consistent with approved plans. County shall be the sole judge of the
quality of and standards for maintenance pursuant to rules and regulations that may be
established by the County.
Tenant shall perform all maintenance and repairs in compliance with, and all
maintenance and repairs necessary to comply with, all applicable statutes, ordinances,
resolutions, regulations, orders, and policies now in existence or adopted from time to
time by the United States, the State of California, the County of Contra Costa and other
government agencies with jurisdiction over the Airport.
If Tenant fails to perform its maintenance obligations as described herein within thirty
(30) days of written notice by County to Tenant of such failure, County shall have the
right to enter upon the Premises and to perform such necessary maintenance
obligations and Tenant shall be required to reimburse County for the costs thereof
within ten (10) days after receipt of an itemized invoice therefor. If such maintenance
obligations are of such a nature that they cannot reasonably be completed within such
thirty (30). day period, Tenant shall be deemed to have performed its maintenance
obligations -within such thirty (30) day period if Tenant has started such maintenance
obligations within such thirty (30) day period and diligently pursues such maintenance
obligations to completion.
B. Storage on Premises. No materials, supplies, products, equipment or other personal
property that is not directly necessary for the uses outlined in Section 4, USE, and no
vehicles other than Tenant's employees' personal vehicles and the fuel truck described
in Section 7C. Fuel Flowage Fees; shall be permitted to remain on any portion of the
Premises without the prior written consent of the Director of Airports. Tenant shall store
personal property items, supplies and materials and combustibles inside the County
hangar in a safe, neat and sanitary manner.
15. UTILITIES
Tenant shall pay, on Tenant's own account, all charges for utilities used or consumed on the
Premises, including, but not limited to, gas, water, electricity, garbage disposal, storm water
and sanitary sewer services, janitorial services, and telephone services;
16. WASTE, QUIET CONDUCT, NUISANCE,AND POLLUTION
A. Tenant shall not commit, or'suffer to be committed, any waste upon the Premises or any
nuisance or other act or thing that may disturb the quiet enjoyment of the use of Byron-
Airport or surrounding property.
B. Tenant shall provide, as necessary, a separate drainage, collection, and/or separation
system to ensure that no untreated liquid waste from any type of operation, including
aircraft cleaning and oil change operations will enter the Airport storm drainage or
sanitary system.
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C. Tenant shall not permit any activity on the Premises that:directly or indirectly produces
unlawful amounts or levels of air pollution, (e.g., gases, particulate matter, odors, fumes,
smoke, dust), water pollution, noise, glare, heat emissions, electronic or radio
interference with navigational and communication facilities for the operation of the
Airport and for its use by aircraft, trash or refuse accumulation, vibration, prop-wash, jet
blast, or any other activity that is hazardous or dangerous by reason or risk of explosion,
fire, or harmful emissions.
D. County shall have the right to enter onto the Premises at any time without prior notice to
verify Tenant's compliance with this Section.
17. HAZARDOUS MATERIALS
A. Definition of Hazardous Materials: As used in this Lease, the term "Hazardous
Materials" shall mean any hazardous or toxic substance, hazardous or radioactive
material, or hazardous waste, pollutant or contaminant at any concentration that is or
becomes regulated by the United States, the State of California, or any local
government authority having. jurisdiction over the Premises. Hazardous Materials
include, but are not limited to, the following: (1) Any "hazardous waste," "extremely
hazardous waste,"or"restricted hazardous waste," as defined in Sections 25115, 25117
or 25122.7, or listed pursuant to Section 25140 of the California Health & Safety Code,
Division 20, Chapter 6.5 (Hazardous Waste Control Law); (2) any "hazardous
substance" as that term is defined in Section 25316 of the California Health & Safety
Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance
Account Act);.(3) any material or substance listed as a chemical known to cause cancer
or reproductive toxicity pursuant to Section 6380 of the California Labor Code, Division
5, Part 1, Chapter 2.5 (Hazardous Substances Information and Training Act); (4) any
"hazardous.waste" as that term is defined in the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903); (5) any "hazardous
substance" as that term is defined in the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601 et seq. (42 U.S.C.
Section 9601); (6) any pollutant, contaminant, or hazardous, dangerous, or toxic
chemical, material, or substance, within the meaning of any other applicable federal,
state, or local statute,.ordinance, resolution, regulation, order, policy, or requirement,
including consent decrees and administrative orders imposing liability or standards of
conduct concerning any hazardous, dangerous, or toxic waste, substance, or material,
now or hereafter in effect; (7) any petroleum product; (8) any radioactive material,
including any "source material", "special nuclear material", or "byproduct material" as
defined in 42 U.S.C. Section 2011 et seq.; (9) any asbestos in any form or condition;
and (10) any polychlorinated biphenyls (PCBs) and any substances or any compounds
containing PCBs.
B. Use of Hazardous Materials: Tenant shall not cause or permit any Hazardous Material,
as defined in this Section, to be generated, brought onto, stored, used, emitted,
released, discharged or disposed of in, on, under, or about the Premises by Tenant or
its officers, employees, agents, contractors, renters, guests or invitees, except for
limited quantities of (1) standard office and janitorial supplies containing chemicals
categorized as Hazardous Materials; (2) motor oils, hydraulic fluids, fuel and other
materials commonly used in aircraft storage and fueling facilities; (3) such other
Hazardous Materials as are approved in advance in writing by County.
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C. Notification to the Director of Airports. ,If, during term of this Lease, Tenant becomes
aware of (a) any actual or threatened release of any Hazardous Materials on, under, or
about the Premises; or (b) any inquiry, investigation, proceeding, or claim by any
government agency or other person regarding the presence of Hazardous Material on,
under, or about the Premises, Tenant shall (1) immediately provide verbal notification to
the Director of Airports and (2) provide written notification of such release or
investigation to the Director of Airports within twenty-four (24) hours after learning of it.
In the event Tenant receives any claims, notices of violation, reports, or other writings
concerning the aforementioned release or investigation, Tenant shall furnish copies of
all such materials to County no later than the business day following Tenant's receipt
thereof.
Notification to the Director of Airports under this Section does not relieve Tenant of any
obligation to notify any governmental agency under any applicable law.
D. Indemnification: Tenant shall, at Tenant's sole expense and with legal counsel
reasonably acceptable to County, indemnify, protect, defend, and hold.harmless County
and County's officers, employees, agents, and contractors from and against any and all
demands, losses, claims, costs, suits, liability and expenses (including without limitation,
attorneys' fees and consultant fees), arising out of or relating to the violation of any law
regulating or the use, handling, generation, emission, release, discharge, storage or
disposal, of any Hazardous Materials (such as those laws listed in this Section 17)
("Environmental Laws") by Tenant or Tenant's officers, employees, agents,
contractors, renters, guests or invitees. This indemnification applies whether or not any
government agency has issued a cleanup order. Losses, claims, costs, suits, liability,
and expenses covered by this indemnification provision include, but are not limited to:
(1) losses attributable to diminution in the value of the Premises; (2) loss or restriction of
use of rentable space on the Premises; (3) adverse effect on the marketing of any rental
space. on the Premises; and (4) penalties and fines levied by, and remedial or
enforcement actions of any kind issued by any regulatory agency (including but not
limited to the costs of any required testing, remediation, repair, removal, cleanup or
detoxification of the Premises and surrounding properties).
This indemnification clause shall survive any expiration or termination of this Lease.
18. STORM WATER DISCHARGE
County' has applied for and received a National Pollutant Discharge Elimination Permit
("NPDEP") under the Federal Clean Water Act, which covers Tenant's operations on the
Premises.
Tenant shall ensure that no pollution or Hazardous Materials of any type will be discharged
into the storm water system at the Airport, and shall comply with the NPDEP in all respects
and be help responsible for any such discharge by Tenant or by, any of Tenant's officers,
employees; agents, contractors, renters, guests; or invitees during the entire term of the
Lease. Any fine or cost of remedial action required of County, by any agency or agencies
having jurisdiction thereover, as a result of actions on or discharges from the Premises, will be
charged to Tenant, and Tenant shall immediately reimburse County for these costs upon
demand. In addition, any discharge of pollutants or Hazardous Materials, as defined herein,
on or from the Premises shall be considered a default of this Lease and shall be grounds for its
17
termination. County will give Tenant a copy of the NPDEP so Tenant can understand its
responsibilities under this section.
19. RULES AND REGULATIONS: UNLAWFUL USE
Tenant shall obey and observe, and shall ensure that all persons entering upon the Premises
obey and observe, all of the terms and conditions of this Lease and all statutes, ordinances,
resolutions, regulations, orders, and policies now in existence or adopted from time to time by
the United States (including, but not limited to, the Federal Aviation Administration), the State
of California, the County of Contra Costa, the San Francisco Bay Regional Water Quality
Control Board, and any other governmental agencies with jurisdiction over the Airport
(collectively, the "Applicable Laws") including, but not limited to, Applicable Laws concerning
health, safety, fire, accessibility, police, and the environment.
Tenant shall be responsible for paying all fines and penalties levied by any governmental
.agency for any violation of an Applicable Law associated with activities on the Premises.
20. SECURITY
County shall have no obligation to provide security to the Premises. At a minimum, Tenant
shall provide adequate all-night illumination of the perimeter of all buildings, vehicular parking
lots, and pedestrian walkways on and surrounding the Premises, as approved in writing by the
Director of Airports, and shall provide that level of additional security that Tenant desires, as
approved in writing by the Director of Airports.
If at any time during the term of this Lease additional security requirements are imposed on the
Airport by the FAA or any other agency having jurisdiction over the Airport, Tenant shall
comply with said security requirements at Tennant's sole expense. If Airport is fined by the
FAA for a security violation caused by Tenant, Tenant shall immediately reimburse County
upon demand.
21. HOLD HARMLESS AND INDEMNIFICATION
Tenant shall'indemnify, defend, save, protect and hold harmless County, its governing body,
elective and appointive boards, commissions, officers, agents, and employees from and
against any and all claims, costs, judgments, and liabilities, including reasonable attorneys'
fees, for any damage, injury, or death, or inverse condemnation claims of third parties or any
combination of the foregoing, including without limitation, all consequential damages, from any
cause whatsoever to persons or property arising directly or indirectly out of, from, or connected
with Tenant's acts or omissions or the performance of Tenant's obligations under this Lease or
the acts or omissions, intentional or negligent, of Tenant's officers, agents, servants,
employees, licensees, sublessees, renters, contractors, concessionaires subcontractors,
guests, or business invitees, save and except claims or litigation arising through (and only to
the extent of) the sole negligence or sole willful misconduct of County, its officers or
employees, and, if required by the County, will defend any such actions at Tenant's sole cost
and expense.
22. INSURANCE
Tenant shall procure and maintain, at its sole cost and expense, at all times during the term of
this Lease, the following insurance policies issued by an insurance company or insurance
18
companies authorized to do business in California, with a financial rating of at least an A-
status as rated in the most recent edition of Best's Insurance Reports:
A. Commercial Genera! Liability, Property Damage, and Hangarkeeper's Insurance:
Tenant shall obtain and maintain, owner, landlord, and tenant Commercial General
.Liability Insurance with a financial rating of at least an A- or P status (pooled insurance
coverage) covering and insuring all. parties hereto (including naming Contra Costa
County and its officers, agents, and employees as additional insureds under the policy
or policies) with a minimum combined single limit coverage of One Million and No/100
Dollars ($1,000,000.00) for all damages due to bodily injury, sickness or disease, or
death to any person and damage to property, including the loss of use thereof, arising
out of each accident or occurrence arising out of ownership, maintenance, or use of the
Premises and all operations necessary or incidental thereto.
Tenant shall also obtain and maintain Hangarkeeper's Liability Insurance in the
minimum amount f One Million and No/100 Dollars ($1,000,000.00) for each aircraft in
or on the Premises. Both liability insurance and Hangarkeeper's insurance shall be
factored periodically to maintain adequate coverage.
B. Fire Insurance: Tenant shall insure for fire and extended coverage risks all personal
property, improvements, and alterations in, on, or about the Premises. Such insurance
shall be in an amount equal to one hundred percent (100%) of insurable, full
replacement value of any improvements located thereon, and shall include vandalism
and malicious mischief endorsements. Said fire insurance policies shall contain loss
payable endorsements in favor of the parties as their respective interests may appear
hereunder. County and its officers, agents, and employees shall be named as
additional insureds in such policy or policies.
C. - Casual : In the event of damage to or destruction of buildings or other improvements
on the Premises, Tenant shall fully repair or replace them, and the proceeds of any
insurance policy paid on account of such damage or destruction shall be used to defer
the cost of repairing or replacing the improvements.
D. Worker's Compensation: Tenant shall obtain workers' compensation insurance as
required by law; covering all employees of Tenant, if any, and said insurance must be
kept in force during the entire term of this Lease.
E. Form of Policies: All policies of insurance required by this Section shall be in such
standard form and written by such qualified insurance companies as shall be
satisfactory to County. Upon the execution of this Lease agreement, evidence of such
insurance shall be provided by Tenant by filing with County a copy of the policy and
policies, together with duly executed certificates to the effect that the insurance required
by this Lease is extended in favor of and consistent with the terms set forth herein. All
such certificates shall specifically state that "Contra Costa County, its officers, agents
and employees" are named as additional insureds under such policy or policies, and
shall contain a provision that written notice of cancellation, lapse or any change shall be
delivered to County thirty (30) days in advance of the effective date thereof. Contra
Costa County, its officers, agents, and employees, shall be named insureds in all such
policies.
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F Notice: Each party hereto shall give to the other prompt and timely notice of any claim
made or suit instituted with which the party has been served or coming to its knowledge
that in any way, directly, contingently, or otherwise, affects or might affect the other
party. Each party shall have the right to participate in the defense of any claim or suit
instituted to the extent of its own interest.
23. TAXES
Tenant agrees to pay before delinquency all taxes (including, but not limited to, possessory
interest tax), assessments, license fees, and other charges that are levied and assessed upon
Tenant's interest in the Premises or upon Tenant's personal property installed or located in or
on the Premises under any levy and assessment by County or other governmental authority.
Tenant may pay any taxes or assessments under protest in good faith, without liability, cost or
expense to the County, to contest the amount.
24. INSPECTION, ACCESS AND NOTICE
County and its agents shall have the right to go upon and inspect the Premises for any reason,
including, but not limited to, any improvement constructed, or in the course of being
constructed, repaired, added to, rebuilt, or restored thereon. County shall also have the right to
serve or to post and to keep posted on the Premises or on any part thereof, any notice
.permitted by law or this Lease, including, but not limited to, a notice pursuant to Section 3094
of the Civil Code. County shall not be liable in any manner for any inconvenience disturbance, _
loss of business, or other damage arising out of County's entry onto the Premises as provided
in this Section. Tenant shall provide access through the Premises for emergency vehicles.
25. SALE, ASSIGNMENT OR SUBLETTING
A. No Sublease or Assignment. Tenant shall not voluntarily sell, assign, transfer or
encumber (each, a "Transfer") its interest in this Lease or in the Premises or sublease
or allow any other person or entity (except Tenant's authorized representatives) to
occupy or use all.or any part of the Premises. Tenant shall not sell or otherwise
encumber all or any portion of the improvements to the Premises. Any Transfer of the
Premises or any sale or other encumbrance of the improvements thereon shall be
voidable and, at County's election, shall constitute a default of this Lease.
B. Tenant as a Corporation or.Limited Liability Company. If Tenant is a corporation or a
limited liability company, any (i) dissolution merger, consolidation, or other
reorganization of Tenant, (ii) the sale or other transfer of a controlling percentage of the
capital stock or membership interests of Tenant, or(iii) the sale of fifty percent (50%) of
the value of the assets of Tenant shall be deemed a voluntary assignment subject to the
provisions of this Lease. The phrase "Controlling Percentage" means (a) in the case
of a corporation, the ownership of and the right to vote stock possessing more than fifty
percent (50%) of the total combined voting power of all classes of Tenant's capital stock
issued, outstanding, and entitled to vote for the election of directors or (b) in the case of
a limited liability company, the ownership of and the right to vote membership interests
possessing more than fifty percent (50%) of the total combined voting interests of
Tenant.
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26. DEFAULT AND REMEDIES
The occurrence of any of the following shall constitute a default(a "Default") by Tenant:
A. Failure by Tenant to pay any Rent or other charges when due, if the failure continues for
three (3) days after notice has been given to Tenant. Notwithstanding the foregoing,
failure by Tenant to pay any Rent or other charges when due twice in any twelve (12)-
month period shall constitute an immediate Default without further notice from County.
B. Tenant abandons the Premises through its failure to occupy and operate the Premises
for sixty(60) days.
C. To the'extent permitted by law:
(i) Tenant shall become insolvent, file a voluntary petition in bankruptcy or an.
involuntary petition in bankruptcy is filed against Tenant, or Tenant shall lose
possession of the Premises, or' any portion thereof, by virtue of any attachment,
execution, or.receivership, and such insolvency, bankruptcy proceedings or loss of
possession is not terminated in Tenant's favor within sixty(60) days thereafter.
(ii) Tenant makes a general assignment for the benefit of creditors.
D. Failure to comply with any of the provisions of Section 32. Non-Discrimination.
E. Any act, condition, event, or failure of performance by Tenant constituting a default
under any other provision of this Lease.
F. Failure to perform any other provision of this Lease, if the failure to perform is not cured
within thirty (30) days after written notice has been given to Tenant. If, in County s
reasonable judgment, the Default cannot reasonably be cured within thirty (30) days,
Tenant shall not be in Default of this Lease if Tenant commences to cure the Default
within the thirty (30) day period and diligently and in good faith continues to cure the
Default to completion.. Safety hazards must.be cured immediately.
In the_event of a Default, County, at its option, may exercise any and all remedies now or
hereafter available to County under law or in equity, all of such rights and remedies to be
cumulative and not exclusive, and may declare that the tenancy is terminated and that all of
Tenant's rights under this Lease are forfeited. Upon termination of this Lease, County has the
right to recover from Tenant:
(1) The worth, at the time.of the award, of the unpaid Rent and fees that had been earned
at the time of the termination of this Lease;
(2) The worth, at the time of the award, of the amount by which the unpaid Rent and fees
that would have been earned after the date of termination of this Lease until the time of award
exceeds the amount of the loss of Rent and fees that Tenant proves could have been
reasonably avoided;
(3) The-worth, at the time of the award, of the amount by-which the unpaid Rent for the
balance of the Term after the time of award exceeds the amount of the loss of Rent and fees
that Tenant proves could have been reasonably avoided; and
(4) Any other amount, and. court costs, necessary to compensate County for all detriment
proximately caused by Tenant's default.
21
"The worth, at the time of the award," as used in (1) and (2)'of this Section, is to be computed
by allowing interest at the rate of ten percent (10%) per annum or the maximum rate permitted
by law, whichever is greater. `The worth, at the time of the award," as used in Paragraph (3) of
this Section, is to be computed by discounting the amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of the award, plus one percent (I%).
27. WAIVER, VOLUNTARY ACTS
The waiver by County of any breach or default shall not constitute a continuing waiver of any
other breach or default, whether of the same or any other covenant or condition. No waiver,
benefit, privilege, or service voluntarily given or performed by either party shall give the other
any contractual right by custom, estoppel, or otherwise. The subsequent acceptance of Rent
pursuant to this Lease shall not constitute a waiver of any preceding breach or default by
Tenant other than default in the payment of the particular rental payment so accepted,
regardless of County's knowledge of the preceding breach or default at the time of accepting
the Rent, nor shall acceptance of Rent or any other payment after termination constitute a
reinstatement, extension, or renewal of the Lease or revocation of any notice or other act by
County.
28. DESTRUCTION
If the improvements or-Tenant's personal property on the Premises is damaged or destroyed
as a result of any uninsurable cause or risk at the time of damage or destruction, Tenant shall
repair, replace, and/or rebuild the Improvements so they are in substantially_ the same
condition as they were in immediately before damage or destruction.
29. CONDEMNATION
If the whole or any part of the Premises shall be taken for any public or quasi-public use under
any actions or by any statute or by right of eminent domain, 'or by private purchase in lieu
thereof, then this Lease shall automatically terminate as to the portion taken as of the date said
title shall be taken. If any part of the Premises so taken renders the remainder thereof
unusable for the purposes for which the Premises were leased, or a portion of the entire
Premises is so taken and County deems the balance of the entire Premises unusable for its
intended purposes, then County, at its option, shall have the right to terminate this Lease on
ninety(90)days notice to Tenant. In the event that this Lease shall terminate or be terminated
by such condemnation or other similar taking, all Rent provided for in this Lease shall be paid
to the date of termination and Tenant shall have no claim against County for the value of any
unexpired portion of the Lease Term, and County shall be entitled to receive the entire award
without apportionment with Tenant.
If the remaining part of the Premises will be reasonably suitable for the operation of the
business described in Section 4. USE, this Lease shall continue in full force and effect as to
such remaining part and Ground Rent shall be reduced, pro rata, by the number of square feet
of the Premises taken and the Ground Rent shall reflect such reduction.
30. COUNTY'S PROCESSING AND TRANSACTION FEES
In the event that Tenant requires or requests County's review, investigation, processing,
recordation, or any other action in connection with any Tenant document, proposal or other
22
matter, Tenant shall pay such costs and expenses incurred by County thirty (30) days after
demand therefor by County.
In addition to any amounts due from Tenant pursuant to the foregoing paragraph, Tenant shall
pay to County a transaction fee of Two Thousand Five Hundred and NO/100 Dollars
($2,500.00) ("Transaction Fee"), plus all County's costs, including, but not limited to, staff
time at rates, determined by the County Auditor, for County's time spent in connection with
County's reviewing a transaction until said transaction is completed.
31. NON-DISCRIMINATION
A. Tenant hereby covenants and agrees that in the event.facilities are constructed,
maintained,.or otherwise operated on the Premises for a purpose for which a United
States Department of Transportation ("DOT") program or activity is extended or .for
another purpose involving the provision of similar services or .benefits, Tenant shall
maintain and operate such facilities and services in compliance with all requirements
imposed pursuant to Title 49, Code of Federal Regulations, Part 21, Non-discrimination
in Federally Assisted Programs of the Department of Transportation ("Title 49, CFR
Part 21"), and as said Regulations may be amended.
B. Tenant hereby covenants and agrees that (1) no person shall be excluded from
participation in, denied the benefits of, or be otherwise subjected to, discrimination in
the use of the Premises on the grounds of race, color, sex, or national origin, (2) that in
the construction of any improvements on, over, or under the Premises and the
furnishing of services thereon, no person shall be excluded from participation in, denied
the benefits of, or be otherwise subjected to discrimination on .the grounds of race,
color, sex, or national origin, and (3) that Tenant shall use the Premises in compliance
with all other requirements imposed by or pursuant to Title 49, CFR, Part 21, and as
said Regulations may be amended.
C. Tenant assures that it will. undertake an affirmative action program as required by 14
CFR Part 152, Subpart E ("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 Subpart E. Tenant assures that no person shall be
excluded. on these grounds from participating in or receiving the services or benefits of
any program or activity covered by Subpart E. Tenant assures that it will require that its
covered sub-organizations provide assurances to the Tenant that they similarly will
undertake affirmative action programs and that they will require assurances from their
sub-organizations as required by Subpart E to the same effect.
D. In the event of breach of any part of the above nondiscrimination covenants, County
shall have the right to terminate this Lease and to re-enter and repossess the Premises
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 the expiration of any appeal rights.
E. Tenant agrees that it shall insert the above four paragraphs in any sublease,
agreement, contract, assignment, etc. by which Tenant grants a right or privilege to any .
person, firm, or corporation to render services, supplies, and sales to the public on the
Premises.
23
32. CHOICE OF LAW
This Lease shall be interpreted and enforced under the laws of the State of California, with
venue in the Superior Court of Contra Costa County, California.
33. OPERATION OF AIRPORT BY COUNTY; FAA REQUIREMENTS
A. Aviation Hazards: County reserves the right to take any action it considers necessary to
protect the aerial approaches of the Airport against obstructions, together with the right
to prevent Tenant from erecting, or permitting to be erected, any building or other
structure on the Premises which, in the opinion of the County or the Federal Aviation
Administration, would limit the usefulness of the Airport or constitute a hazard to aircraft.
B. Navigational Aids: County reserves the right during the term of this Lease or any
renewal and/or extension thereof to install, at its sole expense, air navigational aids
including lighting, in, on, over, under, and across the Premises. In the exercise of any of
said, rights, County agrees to give Tenant no less than sixty (60) days' written notice of
its intention to install such air navigational aids and to coordinate such installation with
Tenant.
C. Landing Area: County reserves the right to further develop or improve the landing area
of the County as it sees fit, regardless of the desires or view of Tenant, and without
interference or hindrance therefrom.
D. Nuisance: Tenant acknowledges that the Premises are adjacent to a public Airport and,
that Tenant and Tenant's employees and invitees may experience discomfort due to the
noise, crowds, and fumes associated with the operation of an .airport. Tenant has
negotiated for and entered into this Lease with knowledge of such condition. Tenant
hereby waives any claim it, or its subtenants, may have or claim to have for diminution
of value of the leasehold caused or related in any way to the operation of the Airport,
whether such diminution of value is because of noise, crowds, fumes or otherwise.
Further, Tenant and its successors and assigns, and every successor-in-interest to the
leasehold or any part thereof covenants that they shall not claim compensation for
diminution of value of the leasehold due to, or request equitable relief to abate a
nuisance arising from, operation of the Airport.
E. Right of Flight: There is hereby reserved to County, its successors and assigns, for the
use and benefit of the pubic, a right of flight for the passage of aircraft in the airspace
above the surface of the Premises. This 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 the said airspace or landing at, taking off from, or operation on the Airport.
F. Covenant Not to Encroach. Tenant by accepting this Lease expressly agrees for itself
and its successors and assigns 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 any County "Imaginary Surfaces" as described in the most recent Airport Layout
Plan, which is on file in the office of the Director of Airports. In the event the aforesaid
covenant is breached. County reserves the right to enter upon the Premises and to
remove the offending structure or object and or to cut the offending tree, which shall be
at the sole expense of Tenant.
24
1
34. NOISE ORDINANCE
Tenant shall abide by all conditions of Contra Costa County Ordinances 87-8 and 88-82, as
amended, or any other rules or ordinances relating to noise standards at the Airport, as may
be approved from time to time by the Contra Costa County Board of Supervisors. Tenant will
provide quarterly noise abatement training, if required, to pilots of aircraft based on the
Premises.
35. DEVELOPMENT OF PREMISES
A. Tenant shall comply with the notification and review requirements covered by 14 CFR
Part 77 of the Federal Aviation Regulations in the event future construction of a building
is planned for the Premises, or in the event of any planned modification or alteration of
any present or future building or structure situated on the Premises.
B. Tenant shall not erect nor permit the erection of any structure or object, or permit the
growth of any tree on the Premises to exceed the established height contours. In the
event the aforesaid covenants are breached, County reserves the right to enter upon
the Premises and remove the offending structure or object and cut the offending tree, all
of which shall be at Tenant's sole cost and expense.
C. Tenant shall not make use of or develop the Premises in any manner that might
interfere with the landing and taking off of aircraft from the Airport or otherwise
constitute a hazard. In the event the aforesaid.covenant is breached, County reserves
the right to enter upon the Premises and cause the abatement of such interference at
the sole cost and expense of Tenant.
D. Nothing herein shall be construed to grant or authorize the granting of an exclusive right
as prohibited under the Federal Aviation Act (49 U.S.C. Section 40103(e)).
E. This Lease and all of its provisions shall be subject to whatever right the United States
Government now has or in the future may have or acquire, affecting the control,
operation, regulation and taking over of the Airport by the United States during a time of
war or national emergency.
36. GENERAL PROVISIONS
A. Notices. Any and all notices to be given under this Lease, or otherwise, shall be made
by enclosing same in a sealed envelope addressed to the party intended to receive
same, at its address, and deposited in the United States Post Office as certified 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, the
address of County is:
Contra Costa County
Director of Airports
Buchanan Field Airport
550 Sally Ride Drive
Concord, CA 94520
and the address of Tenant is:
25
Aerosports, Inc. dba Bay Area Skydiving
6901 Armstrong Road
Hangar 26
P.O. Box 88
Byron, CA 94514
B. Binding on Successors. The covenants and conditions herein contained shall, subject to
the provisions on assignment, apply to and bind the heirs, successors, executors,
administrators, and assigns of all of the parties hereto.
C. 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 held to be invalid by a court of competent jurisdiction, such invalidity shall not
invalidate any other covenant, condition or provision of this Lease, provided, however,
that the invalidity of any such covenant, condition, or provision does .not materially
prejudice either County or Tenant in their respective rights and obligations contained in
the valid covenants, conditions, and.provision of this Lease.
D. Provisions. All provisions, whether covenants or conditions, on the part of Tenant shall
be deemed to be both covenants and conditions.
E. Mechanic's and Materialman's Liens. Tenant shall not permit any mechanic's,
materialman's, or other lien against the Premises or the property of which the Premises
forms a part, in connection with any labor, materials, or services furnished or claimed to
have been furnished. If any such lien shall be filed against the Premises or property of
which the Premises forms a part, Tenant shall cause the same to be discharged,
provided, however, that either party may contest any such lien, so long as the
enforcement thereof is stayed.
F. Written Agreement. Neither party has relied on any promise or representation not
contained in this Lease. All previous conversations, negotiations, and understandings
are of no further force or effect. This Lease and all exhibits attached hereto contains all
the agreements of the parties and cannot be amended or modified, except by a written
agreement signed by both parties hereto.
G. Time is of the Essence. Time is of the essence of each provision of this Lease.
H. Cumulative Rights and Remedies. The rights and remedies with respect to any of the
terms and conditions of this Lease shall be cumulative and not.exclusive and shall be in
addition to all other rights and remedies at law or in equity. .Each right or remedy shall
be construed to give it the fullest effect allowed in law.
I. No Third-Party Beneficiaries. Nothing in this Lease, express or implied, is intended to
confer on any person, other than County and Tenant, and their respective successors-
in-interest, any rights or remedies under or by reason of this Lease.
J. Lease Authorization. This Lease is made and entered into by County in exercise of its
authority as recognized in Section 25536 of the Government Code of the State of
California. Tenant hereby represents and warrants that it is a sole proprietorship duly
organized and validly existing under the laws of the State of California.
26
K. Counterparts. This Lease may be executed in one or more counterparts, each of which
shall be deemed a duplicate original, but all of which together shall constitute one and
the same instrument.
L. Headings and Captions. The section headings and captions of this Lease are, and the
arrangement of this instrument is, for the sole convenience of the parties to this Lease.
The section headings, captions, and arrangement of this instrument do not in any way
affect, limit, amplify or modify the terms and provisions-of this Lease. The Lease shall
not be construed as"if it had been.prepared by one of the parties, but rather as, if both
parties have prepared it. The parties to this Lease and their counsel have read and
reviewed this Lease and agree that any rule of construction to the effect that ambiguities .
are to be resolved against the drafting party shall not apply to the interpretation of this
Lease.
37. SIGNATURES
COUNTY TENANT
CONTRA COSTA COUNTY, a political AEROSPORTS, INC., DBA BAY AREA
Subdivision of the State of California SKYDIVING, a California Corporation
By By u�
Keith Freitas Ats
Director of Airports
Its
RECOMMENDED FOR APPROVAL:
By
Beth Lee
Assistant Director of Airports
By
Karen A. Laws
Principal Real Property Agent
APPROVED AS TO FORM:
SILVANO B. MARCHESI,
County Counsel
By
Pamela Zaid, Deputy County Counsel
RB:srtr ar
G:XRea1Prop\Airporfl13ay Area Skydiving Lease Agree(09-22-08)ver.1 i.doc
09/22/08
27
Byron Airport
Property Lease
Bay Area Skydiving
EXHIBIT "A"
Real property, being a portion of the North one-half of Section 22, Township 1
South, Range 3 East, Mount Diablo Meridian, situated in an unincorporated area of
the County of Contra Costa, State of California, more particularly described as
follows:
Commencing at the northeast comer of said Section 22 (T1S, R3E, MDB); thence
along the north line of said Section 22, South 89119'57" West, 2654.71 feet to the
northeast corner of the northwest one-quarter of said section 22; thence leaving
said north line, South 10003'51" West, 1030.50 feet to the Point of Beginning of the
herein described parcel of land; thence from said Point of Beginning, South
89010'35" East, 17.00 feet; thence South 30106'27" East, 108.22 feet; thence South
53125'10" East, 70.00 feet; thence South 39152'29" East, 122.50 feet; thence South
8131'46" West, 60.05 feet; thence South 71111'43" East, 39.44 feet; thence South
8031'46" West, 16.26 feet; thence North 71111'43" West, 81.75 feet; thence North
87158'09" West, 158.87 feet; thence North 0049'25" East, 285.82 feet to the Point of
Beginning.
Containing an area of 0.86 acres of land, more or less.
- Exhibit "B"-attached and by this reference made apart hereof.-
This
ereof.This real property description has been prepared by me or under my direction, in
conformance with the Professional Land Surveyors Act.
O\,AND g
Signature: (� .- c, -� � SA. STFR`��
Licensed Land Surveyor v 2 p
Contra Costa County Public Works Department ' Exp.9/30/07
Date:
4 L.S.6571
�/�3 �� 2�
OF
G:\Design\SURVEYS\Legals\Exhibits2005\Byron Airport(rev-2).doc
April 3,2007
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