HomeMy WebLinkAboutMINUTES - 06122007 - C.19 TO: BOARD OF SUPERVISORS Contra
FROM: KEITH FREITAS, DIRECTOR OF AIRPORTS ��or _ _' :•• '� Costa
.. ra couxti
DATE: June 12, 2007 County
SUBJECT: Rescission of Prior Lease Approval; Approval and Authorization to Execute a Long-Term Lease
with Seecon Builders, Inc. for a Buchanan Field Airport Development Project, Pacheco Area.
(District IV).
Specific Request(s) or Recommendation(s) & Background & Justification
I. RECOMMENDED ACTION:
RESCIND the December 20, 2005, approval and authorization of the Public Works Director to execute a
40-year ground lease between the County and Seecon Builders, Inc. for approximately 2 acres located north
of the Airport Offices at 550 Sally Ride Drive; and
APPROVE and AUTHORIZE the Director of Airports,or designee,to execute,on behalf of the County,a
40-year ground lease between the County, as Lessor, and Seecon Builders,Inc.,as Tenant,for the lease and
development on approximately 2 acres located north of the Airport Offices at 550 Sally Ride Drive.
II. FINANCIAL IMPACT:
There is no negative impact on the General Fund. The Airport'Enterprise Fund will receive lease and other
revenues and the County General Fund will receive property an possess interest tax revenues from this
Continued on Attachment: X SIGNATURE:
ECOMMENDATION OF COUNTY ADMINISTRATOR
_RECOMMENDATION OF BOARD COMMITTEE
✓APPROVE OTHER
SIGNATURE(S):
ACTION OF B D ON 1d�nG /?_, APPROVED AS RECOMMENDED THER
.VOT" "SUPERVISORS
V UNANIMOUS(ABSENT � )
AYES: NOES:
ABSENT: ABSTAIN: I hereby certify that this is a true and correct copy of an
action taken and entered on the minutes of the Board of
Supervisors on the date shown.
G:\buchanan dev negotiation.bos.doc
Board Orders\130-Negot.doc
Orig.Div: Public works(Airl.)c.n'ts Division) ATTESTED: \/N'"e,
Contact: Beth Lee.Phone(925)646-5722 JOHN CULLEN, Clerk of the Board of Supervisors and
cc: County Adminisirttor County Administrator
Auditor-Controller
Community Development
Public Works Director
Public Works Accounting By , Deputy
Federal Aviation Administration
SUBJECT: Rescission of Prior Lease Approval and Authorization to Execute a Lease, Buchanan Field Airport
DATE: June 12, 2007
PAGE: 2
development.The ground rent will begin at$24,096 per year and increase annually to$100,824 per year in
Year 9. Every 10 years the lease will be revalued based on market appraisals and use a CPI inflator in
intervening years. The fuel flowage fee is $0.08 per gallon and increases annually by $0.005 per gallon.
III. REASONS FOR RECOMMENDATION/BACKGROUND:
The development area at issue is approximately 2 acres of land owned by the County and located on the
westerly side of Sally Ride Drive and north of the County Airport offices as shown on the attached property
map. The parcel is adjacent to the Buchanan Field runways and is designated for aviation use on the
Buchanan Field Master Plan.The parcel is under the jurisdiction of the Buchanan Field Airport and entirely
within the unincorporated County.
On July 26, 2005, the Board adopted a Negative Declaration in compliance with the California
Environmental Quality Act, and authorized staff to advertise the Buchanan development project at its
discretion. Thereafter,staff negotiated lease and development terms with Seecon Builders,Inc.and,when it
appeared that Seecon was ready to proceed with the development, staff presented the lease terms to the
Board for approval.
On December 20, 2005, the Board approved and authorized the Public Works Director to enter into a lease
with Seecon Builders, Inc. for a term of forty years for the purpose of constructing and operating an
executive hangar and office area at Buchanan Field Airport(the "Lease").
The Tenant did not execute the Lease due to financial concerns relative to hangar construction and the type
of fire suppression systems required for its development. These issues affected all airport development and
were resolved in March 2007. The Tenant would now like to proceed with project implementation.
Under the terms of the Lease, the Commencement Date is the date the Lease is approved by the Board.
Since the Tenant never executed the Lease following the Board's approval on December 20,2005,and since
staff desires to have the Lease commence at this time, instead of on December 20, 2005, staff recommends
that the Board rescind its prior approval of the Lease. Staff has revised the Lease to reflect a 2007
Commencement Date, with the exact date to be established upon Board approval.
A copy of the revised Lease signed by the Tenant is attached. The terms of the attached Lease, including a
40-year term, are the same as the terms approved by the Board on December 20, 2005, except that all
payment and performance obligations will be determined by reference to the newly established
Commencement Date for the Lease. In addition, the Tenant requested that the property boundary be
amended to allow additional space to meet the Clean Water requirements and to better site the office
building.The revised Lease also includes an additional 800 square feet of property and the ground rent was
modified to reflect the added property.
IV. CONSEQUENCES OF NEGATIVE ACTION:
The County General Fund and the Airport. Enterprise Fund would not realize additional revenues. The
County-owned land would remain vacant and may negatively impact general aviation aircraft facilities,
services and Airport demand needs.
LEASE BETWEEN CONTRA COSTA COUNTY
AND
SEECON BUILDERS, INC
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LEASE BETWEEN CONTRA COSTA COUNTY
AND
SEECON BUILDERS, INC.
1. PARTIES.........................................................................................................................................4
2. PURPOSE.......................................................................................................................................4
3. PREMISES.......................................................................................................................................4
4. TERM ..............................................................................................................................................5
5. HOLDING OVER......................................................................................................................5
6. RENT .....................................................................................................................................5
7. ADDITIONAL PAYMENT PROVISIONS.......................................................................................17
8. LESSOR PROCESSING AND TRANSACTION FEE ........................................................................19
9. USE OF PREMISES ..................................................................................................................19
10. RENTAL OPERATIONS............................................................................................................21
11. CONDITION OF PREMISES .....................................................................................................23
12. SITE IMPROVEMENTS ............................................................................................................23
13. UTILITY OBLIGATIONS ..........................................................................................................30
14. ALTERATION AND ADDITIONS ...............................................................................................30
15. MANTENANCE, REPAIR, AND STORAGE...................................................................................31
16. LAWFUL CONDUCT ................................................................................................................33
17. WASTEFUL, QUIET CONDUCT.................................................................................................33
18. HAZARDOUS MATERIALS........................................................................................................34
19. STORMWATER DISCHARGE ....................................................................................................37
20. RULES AND REGULATIONS.....................................................................................................38
21. NOISE ORDINANCE................................................................................................................38
22. SECURITY..............................................................................................................................38
23. HOLD HARMLESS AND INDEMNIFICATION ..............................................................................39
24. INSURANCE............................................................................................................................40
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25. TAXES...................................................................................................................................43
26. INSPECTION, ACCESS AND NOTICE........................................................................................44
27. ASSIGNMENT AND EMCUMBRANCES.......................................................................................44
28. SURRENDER OF POSSESSION.................................................................................................45
29. DEFAULT...............................................................................................................................47
30. LESSOR'S REMEDIES..............................................................................................................48
31. DESTRUCTION.......................................................................................................................51
32. CONDEMNATION ...................................................................................................................51
33. CANCELLATION BY LESSOR....................................................................................................53
34. FINANCING OF LEASEHOLD ESTATE.......................................................................................55
35. NON-DISCRIMINATION ..........................................................................................................58
36. OPERATION OF AIRPORT BY LESSOR .....................................................................................61
37. AIRPORT USE AND DEVELOPMENT.........................................................................................61
38. DEVELOPMENT OF PREMISES.................................................................................................62
39. INSTRUMENT OF TRANSFER...................................................................................................63
40. CHOICE OF LAW ....................................................................................................................64
41. NOTICES ...............................................................................................................................64
42. TIME IS OF THE ESSENCE......................................................................................................65
43. BINDING OF SUCCESSORS .....................................................................................................65
44. INVALID PROVISIONS: SEVERABILITY....................................................................................65
45. PROVISIONS..........................................................................................................................66
46. ENTIRE AGREEMENT..............................................................................................................66
47. CUMULATIVE RIGHTS AND REMEDIES .........:...........................................................................66
48. NO THIRD-PARTY BENEFICIARIES..........................................................................................66
49. NO CONTINUING WAIVER......................................................................................................67
50. CONVENANT AGAINST LIENS .................................................................................................67
51. ATTORNEY'S FEES .................................................................................................................67
52. LEASE AUTHORIZATION.........................................................................................................68
53. LEASE COUNTERPARTS..........................................................................................................68
54. CONSTRUCTION .....................................................................................................................68
55. SIGNATURES ................................!........................................................................................69
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LEASE BETWEEN CONTRA COSTA COUNTY
AND
SEECON BUILDERS, INC.
1. PARTIES
The COUNTY OF CONTRA COSTA, a political subdivision of the State of California
(the "County"), hereinafter referred to as "Lessor," and Seecon Builders, Inc., a
California corporation, hereinafter referred to as "Tenant," hereby mutually agree and
promise as follows:
2. PURPOSE
Lessor owns and operates Buchanan Field, a public airport located at Concord,
California, hereinafter "Airport", as shown on the Airport Layout Plan, which plan is on
file in the office of the Director of Airports ("Director of Airports"). Tenant desires to
lease 2.05 acres of land to maintain a Corporate Hangar. The purpose of this Lease is
to lease to Tenant said 2.05 acre parcel of real property at the Airport, shown generally
on Exhibit "B" Site Plan pursuant to the terms and conditions set forth herein.
3. PREMISES
For and in consideration of the rent, fees, and, faithful performance by Tenant of the
terms and conditions and the mutual covenants hereof, Lessor does hereby lease to
Tenant, and Tenant hereby leases from Lessor, subject to all easements and
encumbrances of record, that parcel of real property described in Exhibit "A" and shown
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on Exhibit "B", attached hereto and made a part hereof, hereinafter referred to as the
"Premises."
4. TERM
This Lease is for a term ("Term") of forty (40) years, commencing on
2007 (the "Commencement Date"), and expiring on
2047. The Commencement Date shall be the date this Lease is
approved by the County Board of Supervisors and shall also be known as the first day
of year one of the Lease.
5. 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 Lessor or Tenant' ipon thirty (30) days written notice.
All terms and conditions of this Lease then in place shall govern the month-to-month
tenancy.
6. RENT: Tenant shall pay to Lessor all rent and fees as set forth herein (collectively
"Rent") in accordance with the following provisions:
A. Construction Period Rent: Beginning on the Commencement Date and ending
twelve (12) months after Commencement Date or upon Substantial Completion
(as defined below) of, the Improvements described in Section 12. Site
Improvements and depicted on ' Exhibit C, attached hereto and incorporated
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herein, whichever occurs first ("Construction Period Rent Expiration Date"), the
rental payment shall be One Thousand and No/100 ($1,000.00) Dollars per
month ("Construction Period Rent") payable in advance and without demand on
or before the first day of each month. Construction Period Rent for any partial
month shall be prorated at the rate of 1/30th of the monthly Construction Period
Rent per day. Substantial Completion shall mean the date that the
Improvements pass final inspection by the Contra Costa County Building
Inspection Department.
B. Ground Rent: Tenant shall pay Ground Rent commencing on the next calendar
day following the Construction Period Rent Expiration Date, or upon Substantial
Completion, whichever comes first ("Ground Rent Commencement Date").
Ground Rent shall be payable in advance and without demand on or before the
first day of each month during the Term of this Lease. Ground Rent for any
partial month shall be prorated at the rate of 1/30th of the applicable monthly
Ground Rent per day. If the Ground Rent Commencement Date occurs during
the first year following the Commencement Date of the Lease (Year 1), Ground
Rent for any remaining period of Year 1 shall be $2,008.00 per month. Ground
Rent for Year 2 through 9 is detailed on the schedule below. Ground Rent for
Year 11 and each year thereafter shall be increased by the change in the
Consumer Price Index, determined in accordance with subsection 6.C.
Consumer Price Index Adjustment, except in years 10, 20, and 30, during which
the Ground Rent shall be revalued in accordance with Section 6.D. Revaluation
of Ground Rent. In no event shall the Ground Rent for any year ever be less
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than the Ground Rent in effect for the immediately preceding year. In the event
there is a decrease in the Consumer Price Index (CPI), Ground Rent for the year
in question shall be the same as the Ground Rent for the preceding year. Set
forth below is an example of the schedule of adjustments to Ground Rent.
Year Monthly Ground Rent
1 $ 2,008.00
2 $2,826
3 $3,644
4 $4,387.00
5 $5,205
6 $6023
7 $6,841
8 $7,584
9 $8,402
10 Revaluation of Ground Rent per Subsection 6.D. below.
11-19 Prior year's Ground Rent, .increased annually by CPI Adjustment
unless CPI Adjustment would result in a rent decrease, in which
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case rent will remain the same as the preceding year's Ground
Rent.
20 Revaluation of Ground Rent per Subsection 6.D. below.
21-29 Prior year's Ground Rent, increased annually by CPI Adjustment
unless CPI Adjustment would result in a rent decrease, in which
case rent will remain the same as the preceding year's Ground
Rent.
30 Revaluation of Ground Rent per Subsection 6.D. below
31-39 Prior year's Ground Rent, increased annually by CPI Adjustment
unless CPI Adjustment would result in a rent decrease, in which
case rent will remain the same as the preceding year's Ground
Rent
C. Consumer Price Index Rent Adjustment:
Effective upon the first day of Years 11 through 19, Years 21 through 29, and
Years 31 through 39, the Ground Rent shall be adjusted by the change in
Consumer Price Index ("CPI") for the most recent one year period ending March
31. 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 Ground Rent be
decreased by a CPI adjustment. In the event there is a decrease in the CPI, the
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Ground Rent for the year in question shall be the same as the Ground Rent for
the preceding year. For example, if Year 11 of the Lease commences on
November 1, 2017, the CPI Index for June 2016 is 210.0, the CPI Index for June
2015 is 205.0, and the Ground Rent for Year 10 was revalued at $10,000.00, the
Ground Rent for Year 11 shall be increased from $10,000.00 (hypothetical Year
10 Ground Rent) to $10,243.90 per month ($10,000.00 X (1+(210.0-
205.0/205.0)). Continuing the example, if the CPI for June 2017 is 205.0, the
Ground Rent for Year 12 will be the same.as the Ground Rent for Year 11
($10,243.90). Then if the CPI for June 2018 is 210.0, the Ground Rent for Year
13 shall be increased by the CPI increase from June 2017 to June 2018, from
$10,243.90 to $10,493.75 [$10,243.90 x (1+(210.0-205.0/205.0))]. Lessor will
notify Tenant of the increase in Ground Rent when Lessor completes the
calculation of the increased rent. If the notice is after the effective date of the
increase, Tenant will pay any increased rent retroactively to the effective date.
D. Revaluation of Ground Rent. Ground Rent shall be revalued by Lessor on the
tenth anniversary of the Commencement Date of this Lease, and thereafter, at
the end of each succeeding ten (10)"year period of the Lease Term. Ground
Rent shall be revalued on , 2017, 2027, and 2037 ("Revaluation
Dates"). Ground Rent shall be revalued based upon the fair market rental value
of the Premises, 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
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decrease in the fair market rental. value for the year in question, the revalued
Ground Rent shall be the same as the Greund Rent for the preceding year. Prior
to each Revaluation Date, Lessor shall initiate a Ground Rent Revaluation
Process ("Revaluation Process") for the determination of Ground Rent for the
following period.
(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 Lessor 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 thirty (30) days
following the completion of the Revaluation Process.
c) Except as otherwise provided herein, no waiver by Lessor of any of
the provisions of this Section shall be deemed to have been made
by Lessor, 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.
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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 Lessor shall make an initial determination of the amount of the
Ground Rent revaluation ("Lessor Revaluation") and shall notify
Tenant in writing of the amount of the new monthly Ground Rent
("Revaluation Notice").
b) If Tenant disagrees with the Lessor Revaluation, the Tenant may
file with the Lessor a dispute of the amount of the Lessor
Revaluation ("Tenant Dispute"). The Tenant Dispute must be in
writing and delivered to the Director of Airports no later than twenty-
one (21) days after fhe Revaluation Notice is mailed to Tenant
("Dispute Period"). In the event that the Tenant does not file a
Tenant Dispute with the Lessor within the Dispute Period, the
Lessor 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 Lessor Revaluation, and the new Ground
Rent, as initially determined by the Lessor, shall become effective
on the applicable Revaluation Date, and the Revaluation Process
shall be concluded.
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c) If Tenant delivers a Tenant Dispute to the Lessor within the Dispute
Period, Lessor and Tenant shall have twenty-one (21) days
following Lessor'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) day period except by mutual
written agreement of the Tenant and the Director of Airports.
d) If Lessor and Tenant are unable to agree upon a new Ground Rent
during the Rent Negotiation Period, Lessor 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 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.
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In the event that Tenant does not appoint an appraiser and provide
Lessor with written notice of the appointment within the Selection
Period: A) the initial Lessor Revaluation shall automatically be
deemed to be accepted by Tenant, B) the new monthly Ground
Rent, as initially determined by the Lessor Revaluation, shall
become effective on the applicable Revaluation Date, C) Tenant
shall be deemed to have waived the right to further contest the
amount of the Lessor Revaluation by arbitration or in any other
manner, and D) the Revaluation Process shall be concluded.
In the event that Lessor does not appoint an appraiser and provide
Tenant with written notice of the appointment within the Selection
Period specified in this Section above, A) the new monthly Ground
Rent shall be the Ground Rent as determined by Tenant's
appraiser, or as determined in the preceding revaluation of Ground
Rent, whichever is greater, B) such new monthly Ground Rent shall
become effective on the applicable Revaluation Date, C) Lessor
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 D) the Revaluation Process shall be concluded.
e) If Lessor and Tenant. each properly appoint an appraiser during the
Selection Period, the issueof 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
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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 Lessor and
Tenant.
f) Upon completion of both of the above appraisals, Lessor and
Tenant shall make a final attempt to establish a new monthly
Ground Rent by negotiation. In the event that Lessor and Tenant
cannot agree on a revaluation of the monthly Ground Rent, either
Lessor or Tenant may declare an impasse in the negotiations by
providing written notice of the impasse to the other parry. The
written notice of impasse (referred to hereinafter as the "Final
Proposal") shall include all of the following information: A) a
statement that the declaring party has determined that negotiations
have reached an impasse; B) the declaring party's final proposed
Ground Rent revaluation figure; C) 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 parry; and D) 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
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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 parties shall jointly select an arbitrator who shall
make a binding determination as to which proposal is the closest to
the actual fair market value of the land underlying the Premises. If
the parties cannot agree on an arbitrator within fifteen (15) days
from rejection of the Final Proposal and the Counter Final Proposal,
either party may submit the matter to the American Arbitration
Association, or another professional arbitration firm as agreed in
writing by both parties, for the immediate selection of an arbitrator.
The arbitrator shall be an Al and have current aviation appraisal
experience in appraising property in the geographic real estate
market where the Premises is situated. The arbitrator shall conduct
the arbitration under the. 'provisions of the commercial arbitration
rules of the American ArbitratioH Association. The arbitration shall
be conducted in Contra Costa County, California, unless the parties
agree in writing to another location. The arbitrator shall not have
the right to combine, average, or otherwise modify the proposals,
but shall select from among them. The arbitrator shall have no
power to modify the provisions of this Lease. The arbitrator's
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decision shall be binding on all parties and shall apply retroactively
to the Revaluation Date:, The arbitrator's decision shall be subject
to challenge only 1) on the grounds set forth in California Code of
Civil Procedure section 1286.2 or 2) based upon the arbitrator's
incorrect application of the substantive laws of California.
E. Fuel Flowage Fees: On the first day of each calendar quarter, Tenant shall pay
to Lessor a fuel flowage fee for the preceding quarter equal to $0.08 per gallon.
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 Fuel Flowage Fee shall be �review�dl" and 'may be revised by Lessor in its
sole discretion every five (5) years after the Commencement Date of this Lease.
Lessor shall give notice to Tenant in writing of any revised fuel flowage fee,
which shall be effective the month after such notice is given.
Tenant may operate a fueling facility or fuel truck on the Premises for the
purpose of self-fueling of based aircraft only. All self-fueling must be in
compliance with Federal Aviation Administration Advisory Circular 150/5190-5.
No fueling is allowed for automobiles or trucks. With respect to non-Tenant
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.
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F. 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 generally accepted accounting principles consistently
applied, including without limitation, a sales journal general ledger, and all bank
account statements showing deposits ,,of,.Gross Sales revenue. In addition,
Tenant shall keep all cash register receipts with regard to Gross Sales, credits,
refunds and other pertinent transactions, as well as record of any other
exclusions or deductions from Gross Sales.
G. Additional Rent: In addition to Construction Period Rent, Ground Rent, and Fuel
Flowage Fees, Tenant shall pay, as additional rent ("Additional Rent"), all other
charges, costs and fees required to be paid pursuant to the provisions of this
Lease.
7. ADDITIONAL PAYMENT PROVISIONS
A. Late Rental Payments: In the event Tenant fails to pay Lessor any amount due
under this Lease within five (5) days after such amount is due, Tenant shall pay
to Lessor a late charge of One Hundred and No/100 Dollars ($100) per
occurrence, 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 said late charge on or before next installment
of rent is due. Lessor and Tenant hereby agree that it is and will be
impracticable and extremely difficult.to ascertain and fix Lessor's actual damage
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from any late payments and, thus, that Tenant shall pay as liquidated damages
to Lessor the late charge specified in this Section, which is the result of the
parties' reasonable endeavor to estimate fair average compensation therefor.
B. Form and Place of Payment: All Rents 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
Lessor may designate from time to time.
C. Returned Checks: If a check written by Tenant is returned for insufficient funds,
Lessor may impose a reasonable service charge in addition to any charges
imposed by the bank. Lessor 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 Lessor the
sum of Sixteen Thousand Eight Hundred Fifty and No/100 Dollars ($16,850) in
cash as security ("Security Deposit") for the faithful performance of the terms,
covenants, and conditions of this Lease. If Tenant is in default of this Lease,
Lessor may in its sole discretion use the Security Deposit, or any portion of it, to
cure the default or compensate Lessor for damages sustained by Lessor
resulting from Tenant's default. Upon demand by Lessor, Tenant shall
immediately pay to Lessor a sum equal to the portion of the Security Deposit
expended or applied by Lessor as provided in this subsection so as to maintain
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the Security Deposit in the sum initially deposited. Upon final accounting by
Lessor, any balance of said deposit shall.be refunded to Tenant, without interest.
8. LESSOR PROCESSING AND TRANSACTION FEES
In the event that Tenant requires or requests Lessor's review, investigation, processing,
recordation, or any other action in connection with any Tenant document, proposal or
other matter (such as review of a proposed assignment, or other transfer, or estoppel
certificate or financing of Leasehold Estate), Tenant shall pay such costs and expenses
incurred by Lessor thirty (30) days after demand therefor by Lessor.
Tenant shall pay to Lessor a transaction fee ("Transaction Fee") of Two Thousand
Five Hundred and No/100 Dollars ($2,500.00), plus all Lessor's costs, including, but not
limited to, staff time at rates determined by the County Auditor, for Lessor's time spent
in connection with Lessor's reviewing a transaction until said transaction is completed.
The Transaction Fee shall be increased by $500.00 every five years after the
Commencement Date of this Lease.
9. USE OF PREMISES
The Premises shall be used only for the operation of a corporate hangar site and for no
other purpose.
A. Uses Permitted on the Premises:
The following are the only uses permitted on the Premises and may be provided
by Tenant only:
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(1) Storage of aircraft owned by Tenant.
(2) Maintenance on aircraft owned by Tenant or any of Tenant's subtenants,
provided that such maintenance is performed ONLY by (1) the owner of
the aircraft, (2) a bonafide employee or contractor of the owner of the
aircraft, or (3) an established Buchanan Field Airport Fixed Based
Operator.
(3) Operation of corporate aircraft on a non-commercial aviation basis.
(4) The initiation (start up or taxi out of aircraft) or (2) termination (taxi in and
shut down of an aircraft) for FAR Part 135 or Charter operations.
(5) Aviation-oriented use of office space.
(6) Hangar storage of aircraft other than Tenant-owned aircraft, only on a
month-to-month basis:
(7) Self-fueling of based aircraft, pursuant to Section 6.E.
B. Uses Not Permitted on the Premises:
The following uses of the Premises are specifically prohibited:
(1) All commercial activities, including but not limited to, Charter or FAR Part
135 operations, including enplanement or disemplanement of passengers,
except as, expressly permitted. in Section 9.A. above.
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(2) Maintenance, except as expressly permitted in Subsection 9.A.
(3) Use or subletting of any portion of the Premises for storage purposes,
except as expressly permitted in Subsection 9.A.
(4) Flight instruction for hire.
(5) Sale of aviation supplies or services.
(6) Aircraft fueling for commercial purposes.
(7) Any use not expressly permitted in Section 9.A.
Two violations of Section 9.13. within a twelve-month period shall be a default of this
Lease.
10. RENTAL OPERATIONS
Tenant may rent hangar space for the purpose of aircraft storage only, pursuant to such
rules and regulations adopted from time to time by Lessor, including but not limited to
the following:
A. All hangar rental agreements shall be subject to the terms and conditions of, and
be subordinate to, this Lease.
Such hangar rental agreements shall not create a landlord-tenant or any other
legal relationship between Lessor and Tenant's renter. Tenant is, and shall
remain, entirely responsible for the full performance of this Lease.
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B. No commercial operations are permitted by Tenant or Tenant's renters. In a
renter is found to be conducting any commercial activity, Tenant shall
immediately terminate that renter's agreement. Two violations of this subsection
in a 12-month period is a default of this Lease.
C. To the extent that Tenant engages in the rental of hangar space, Tenant or its
authorized representative shall be available during normal business hours, either
at the Airport or by telephone/facsimile to discuss rental terms and to conduct
business.
D, Hangar space rental rates shall be established and made available to the public.
The original established rates and' any and all changes or revisions in the
established rates shall be provided immediately in writing to the Director of
Airports.
E. Tenant shall, the first day of each calendar year, deliver to Lessor a copy of any
new, revised, or extended rental agreements entered into by Tenant in the past
twelve-month period, which rental agreements shall contain the name, address,
and telephone number of the renter, the identification and make of all of the
renter's hangared aircraft, and any other information that Lessor from time to
time may require.
F. Commencing on September 1, 2008, and annually thereafter, Tenant shall provide
the Director of Airports with an updated "Premises Occupancy and Active
Demand List" identifying current occupants of any improvements located on the
Premises, the status of any occupied improvements or portions thereof, and the
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identities of any persons then awaiting future occupancy of any of the hangar or
other spaces located on the Premises.
G. Tenant is responsible for all materials stored in the hangars, whether said
materials are stored by Tenant or by Tenant's agents, employees, or renters.
The Director of Airports shall have the right to determine, in his or her sole
discretion, what items may be stored in the hangar. Tenant shall inspect all
hangar space no less than once each year to determine if materials that violate
any applicable codes, or that have not been authorized by the Director of
Airports, are being stored in the hangar space, and shall require the immediate
removal of such materials. Tenant shall terminate the rental agreements of those
renters who have not removed such materials within ten (10) days following
Tenant's notice to remove such materials.
11. CONDITION OF PREMISES
Except as otherwise expressly stated in this Lease, Lessor hereby lets, demises and
leases, and Tenant takes the Premises in an "as is" physical condition with no warranty,
express or implied, on the part of Lessor as to the condition of any existing
improvements, the condition of the soil or the geology of the soil.
12. SITE IMPROVEMENTS
Tenant shall construct all site improvements shown on the Proposed Site Plan dated
August 13, 2004, prepared by Isakson and Associates, Inc., attached hereto as Exhibit
"C" and made -a part hereof by reference, together with such additional improvements
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as provided in final construction plans to be approved by Lessor as set forth below. The
improvements required by this section shall hereafter be referred to as the
"Improvements."
A. Construction of Improvements: Tenant shall construct Improvements in
accordance with both Exhibit "C" and any revisions thereto that are approved in
writing in advance by Lessor. ., At a minimum, Tenant shall construct the
following:
(1) Not more than a maximum of 33,000 square feet of hangar space capable
of handling aircraft;
(2) Not more than a maximum of 4,050 square feet for a mechanics area,
pilots lounge, and office and storage space to be associated with the
hangar space;
(3) No fewer than twenty (20) parking spaces for use by employees,
passengers, crew members, and other visitors to the Premises; and
(4) Not more than a maximum of 45,000 square feet of aircraft parking ramp
and taxi space.
B. Plans and Lessor's Approval: Tenant shall 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
Lessor and shall be constructed or installed in conformance with the Plans, and
all applicable statutes, ordinances, building codes, Buchanan Field Airport Policy
and Standards for Development, and rules and regulations of Lessor, and such
other authorities as may have jurisdiction over the Premises or Tenant's
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operations thereon, including, but not limited to, the Contra Costa County
Building Inspection Department, Contra Costa County Public Works Department,
the Contra Costa County Community Development Department, 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.
Lessor'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.
The Contra Costa County Board of Supervisor's has approved and adopted a
Negative Declaration in compliance with the California Environmental Quality Act
necessary for the development of the Improvements. Copies of the Negative
Declaration and Mitigation Monitoring Plan are attached hereto as Exhibit "D".
Tenant shall comply with all measures identified in the Mitigation Monitoring Plan.
C. Construction Schedule: Within one hundred fifty (150) days following the
Commencement Date, Tenant shall submit three (3) sets of Plans and a detailed
construction schedule to the Director of Airports for review and approval. Tenant
shall not submit the Plans to the Contra Costa County Building Inspection
Department 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 Director of Airports disapproves of the Plans, reasons for
the same must be given to Tenant, and Tenant shall have thirty (30) days to
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revise the Plans, and resubmit them to the Director of Airports. The Director of
Airports' review and approval or disapproval of the revised Plans shall be
completed within thirty (30) days oft. re=submission. The Director of Airports'
approval is separate and distinct from approvals Tenant is required to obtain from
Lessor, 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 the Plans to the Contra Costa County Building Inspection
Department for review and approval.
Tenant shall commence construction of the Improvements within forty-five (45)
days after receiving a grading permit for the Improvements from the Contra Costa
County Building Inspection Department, 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 Lessor 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 and the Ground Rent Commencement
Date may be extended upon written approval of the Director of Airports because
of time lost as a result of work stoppages, strikes, 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.
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D. 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 Lessor a payment bond of a surety company
licensed to transact business in the State of California, or other type of security
satisfactory to the Lessor, with Tenant as principal, in the penal sum of one
hundred percent (100%) of the. total estimated cost of the Improvements,
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. Simultaneously, Tenant shall also
provide Lessor a performance bond of a surety company licensed to transact
business in the State of California, or other type security satisfactory to Lessor,
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 12 months of the Commencement Date of all construction work associated
with the Improvements. Said bonds or other security shall be in a form
acceptable to Lessor and shall name Lessor as obligee.
E. 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 Building Inspection Department,
the Community Development Department 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
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Contra Costa County Public Works Department and Building Inspection
Department. Nothing in this Lease shall be construed as approval by Lessor 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.
F. 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
Lessor shall not constitute a warranty by Lessor, and shall not relieve Tenant of
its obligation to fulfill the provisions of this Lease and of the Plans as approved by
Lessor, nor shall Lessor be thereby estopped from exercising any of its remedies
provided at law or equity or under this Lease.
G. Engineering: Lessor 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 Lessor.
H. 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 se:rvide fees in connection therewith.
I. Paving and Concrete: Tenant shall upgrade the pavement for the aircraft
movement areas and concrete hangar floors such that they will accommodate
the heaviest aircraft expected to operate in the area, or fully loaded fuel trucks,
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whichever is of greater weight, with a minimum expected pavement life of no less
than twenty-five (25) years. The road access shall be in accordance with Contra
Costa County Public Works. Department standards.
J. Frontage Improvements: It is understood and agreed that Tenant shall, at
Tenant's sole expense, construct frontage improvements along Sally Ride Drive
in accordance with County Standards and Plans, immediately adjacent and
contiguous to the Premises, consisting of curbs, gutters and sidewalks. Said
frontage improvements shall be completed, according to specifications furnished
by Lessor and approved by the Public Works Department, no later than sixty (60)
days after Substantial Completion of the Improvements.
K. Hangar Setback: Hangar must be designed such that there is adequate ramp
space on the aircraft hangar door side(s) so that when the largest anticipated
airplane to be housed in the hangar is pulled.full out of the hangar, the aircraft
does not obstruct any adjacent taxiways used by the largest aircraft anticipated
to use that taxiway. Failure to design the hangar in compliance with this provision
shall be grounds for disapproval of the Plans by the Director of Airports pursuant
to Section 12.13.
L. Notice of Nonresponsibility: A notice of Lessor non-responsibility shall be posted
and recorded by Tenant during construction in accordance with Civil Code
Sections 3094 and 3129. A copy of notice is to be mailed to the Director of
Airport upon filing with the County Recorder.
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M. Signs: Tenant may erect signs and advertising media and place the same upon
the improvements in accordance with FAA and Buchanan Field Airport Policy
and Standards for Development, after obtaining the written approval of the
Director of Airports and of any other public agency having jurisdiction.
N. Landscaping: The landscaping on the Premises shall be installed by Tenant, at
Tenant's sole expense, in accordance with landscaping plans approved pursuant
to Section 12.B., and shall be maintained by Tenant in a first-class condition.
13. UTILITY OBLIGATIONS:
Tenant shall pay on Tenant's own account for all utilities used or consumed on said
Premises, including, but not limited to gas, water, electricity, garbage disposal, storm
and sanitary sewer services, janitorial services, and telephone services.
In the event Lessor, or any utility company, requires that any existing or new overhead
distribution system be installed underground, Tenant shall, at its own cost and expense,
provide all necessary facility changes on the+Premises; so as to receive such service.
14. ALTERATIONS AND ADDITIONS
Tenant shall not make any alterations, erect any additional structures, or make any
improvements on the Premises without prior written consent of the Director of Airports.
In the event Tenant makes alterations or constructs additions that violate the conditions
contained in this Lease, at the Director of Airports' sole discretion, Tenant shall remove
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those alterations and additions at Tenant'ta-sole cost and expense. Any such
alterations, additions, or improvements made shall remain on and be surrendered with
the Premises on expiration or termination of the Lease, except as otherwise provided in
Section 28. Surrender of Possession of this Lease. If Tenant is required to remove any
such alterations, additions, or improvements pursuant to Section 28. Surrender of
Possession, Tenant, at its sole cost and expense, shall restore the Premises to the
conditions existing immediately prior to the alteration, addition, or improvement, or such
other condition designated by Lessor in its election.
If Tenant makes any alterations, erects any additional structures, or makes any
additional improvements to the Premises as provided in this Section, Tenant may not
commence construction until Tenant has provided Lessor ten (10) days advance written
notice thereof. In addition, a Notice of Lessor Non-Responsibility shall be posted and
recorded by Tenant during construction in accordance with Civil Code Sections 3094
and 3129. A copy of the notice shall be mailed to Lessor upon filing with the County
Recorder.
15. MAINTENANCE, REPAIR, AND STORAGE
A. Tenant shall, at its sole cost and expense throughout the term of this Lease,
maintain the Premises and all improvements thereon, including, but not limited
to, structures, signs, driveways, curbs, ' walkways, pads, aprons, taxiways,
mechanical equipment, utility lines, drainage and sewage lines, fuel storage and
dispensing facilities, environmental control equipment, irrigation systems and
landscaping, in a first-class condition. All maintenance, repairs, and
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replacements shall be of a quality substantially equal to the original material and
workmanship and consistent with approved plans. Lessor shall be the sole judge
of the maintenance standards required.
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.
B. No materials, supplies, products, equipment or other personal property, except
for assembled aircraft and ramp equipment and vehicles in regular use, shall be
stored or permitted to remain on any.portion of the Premises outside of buildings
or structures without the prior written consent of the Director of Airports. Tenant
shall store personal property items, supplies, materials and combustibles inside
the buildings in a safe, neat and sanitary manner.
C. Tenant shall provide or cause to be provided adequate enclosures, screened
areas and/or suitable covered metal receptacles within the Premises for the
short-term accumulation and storage of solid waste, such as rubbish, trash,
garbage, sludge, discarded machinery or parts and any other solid industrial
wastes. Such enclosures and/or screened areas shall be designed in such a
way as to prevent odors, fumes, attraction of pests, and dispersal of wastes due
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to wind or water runoff, and shall be serviced frequently by qualified waste
removal and disposal services.
16. LAWFUL CONDUCT
Tenant shall obey and observe, and shall ensure that all persons entering upon the
Premises obey and observe, all 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 Central Contra
Costa Sanitary District, the San Francisco Bay Regional Water Control Board, and any
other government agencies with jurisdiction over the Airport ("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 government
agency for any violation of an Applicable Law associated with activities on the
Premises.
17. WASTE, QUIET CONDUCT
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 Buchanan Field 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
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operation, including aircraft cleaning and oil change operations, will enter the
Airport storm drainage or sanitary system.
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.
18. 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 hazaYdous 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,
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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, Chapter 2.5 (Hazardous Substances Information and Training Act); (4)
any "hazardous waste" as that term is defined in Section 1104 of 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 Section
101 of 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, special nuclear, 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
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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 Lessor.
C. Notification to the Director of Airports.:.: If, during term of this Lease, Tenant
becomes aware of (a) any actual or rthreatened 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. Tenant shall also, by
the next business day after receipt, furnish to Lessor, copies of any claims,
notices of violation, reports, or other writings received by Tenant that concern
such release or investigation.
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 Lessor, indemnify, protect, defend, and
hold harmless Lessor and Lessor's officers, employees, agents, and
contractors from and against any and all demands, losses, claims costs,
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suits liability and expenses 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 18) ("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. This indemnification clause
shall survive any expiration or termination of this Lease.
19. STORMWATER DISCHARGE
Contra Costa 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 stormwater system at the Airport, and shall comply with the NPDEP
in all respects and be held responsible for any such discharge by Tenant or by any of
Tenant's officers, employees, agents, contractors, renters, guests, or invitees, during
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the entire term of this Lease. Any fine or cost of remedial action required of Lessor, 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 Lessor 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 termination.
20. RULES AND REGULATIONS
Tenant agrees to observe and obey all policies, rules, and regulations promulgated and
enforced by Lessor and any other governmental entity having jurisdiction over
Buchanan Field.
21. NOISE ORDINANCE
Tenant shall abide by all conditions of 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 to pilots of aircraft based on the
Premises.
22. SECURITY
Lessor shall have no obligation to provide security to the Premises. Tenant shall
provide, through the use of buildings, structures, walls, fences, and similar barriers, or a
combination thereof, positive uninterrupted on-site security at all times for the
prevention of unauthorized pedestrian andVe' thicular access to the aircraft operating
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area by way of the Premises. Direct or indirect points of entry to the aircraft operating
area to accommodate authorized individuals and authorized vehicles shall be controlled
by Tenant in compliance with FAA and Airport security requirements. Tenant shall also
provide security for on-site facilities, such as vehicular parking lots, aircraft tie-down
aprons, buildings, hangars, fuel storage areas and shops. Tenant shall provide
adequate lighting to provide for all-night illumination of the perimeter of all buildings on
the Premises, including, aprons, aircraft tie-down areas, vehicular parking lots and
pedestrian walkways surrounding the Premises. 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 Tenant's sole expense. If Airport is fined by FAA for a security violation
caused by Tenant, Tenant shall immediately reimburse Lessor upon demand.
23, HOLD HARMLESS AND INDEMNIFICATION
Tenant shall defend, hold harmless, and indemnify the indemnitees from the liabilities
as defined in this section:
A. The indemnitees benefited and protected by this promise are Lessor, its
governing body, elective and appointive boards, commissions, officers,
employees, representatives and agents;
B. The liabilities protected against are any liability or claim for damage of any kind
allegedly suffered, incurred or threatened because of actions defined below, and
including personal injury, death, property damage, inverse condemnation claims
of third parties or any combination of these, and including the defense of any
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suits or actions at law or equity concerning these;
C. The actions causing liability are any act, intentional or negligent, or omission by
Tenant, its agents, representatives, invitees, or contractors in connection with the
occupancy and use of the Premises by Tenant, its shareholders, or any renter or
assignee, or the matters covered by this Lease, or claimed to be attributable to
Tenant, its subcontractors, or any officers, agents, renters, assignees,
employees, or one or more of them;
D. Non-conditions: The promise and agreement in this Section are not conditioned
or dependent on whether Tenant or Lessor has prepared, supplied, or approved
any plans or specifications in connection with work performed pursuant to
Section 12. Site Improvements and Section 14. Alterations and Additions hereof,
or has insurance or other indemnification covering any of these matters.
24. INSURANCE
Tenant shall procure and maintain, at its own cost and expense, at all times during the
term of this Lease, the following policies issued by insurance companies authorized to
do business in California, with a financial rating of at least an A-status (unless otherwise
stated) as rated in the most recent edition of Best's Insurance Reports:
A. Commercial General 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
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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) 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.
Lessor shall also obtain and maintain, Hangarkeeper's Liability Insurance in the
minimum amount of One Million and no/100 Dollars ($1,000,000) 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. Lessor and its officers, agents, and
employees shall be named as additional insureds in such policy or policies.
C. Casualties: In the event of-dam' age-fo or. destruction of any buildings or other
improvements on the Premises ("Insured Improvements") in excess of twenty-
five percent (25%) of the then replacement value of such Insured Improvements,
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Tenant shall determine whether to repair or replace the Insured Improvements. If
Tenant determines to repair or replace the Insured Improvements, the proceeds
of any insurance policy paid on account of such damage or destruction shall first
be applied to the cost of repairing, or replacing the Insured Improvements. If
Tenant determines not to repair"or replace the Insured Improvements, Tenant
may terminate this Lease upon written notice to Lessor within thirty (30) days of
such damage or destruction. It Tenant. terminates this Lease pursuant to this
provision after deducting any proceeds payable to Tenant's mortgagee, as
defined in Section 34. Financinq of Leasehold Estate, the remaining proceeds of
any insurance policy paid on account of such damage or destruction shall be
distributed to Lessor and Tenant pursuant to the following formula: Lessor's
share shall be the product of the remaining proceeds multiplied by a fraction, the
numerator of which is the number of months since the Commencement Date of
this Lease until the date the casualty causing such damage or destruction, and
the denominator of which is two hundred'forty'(240) months, Tenant's share shall
be the excess of the remaining proceeds after subtracting Lessor's share. All fire
and extended coverage policies insuring the improvements may have a loss
payable clause in favor of any mortgagee of Tenant, as such mortgagee's
interest may appear.
D. Worker's Compensation: Tenant shall obtain workers' compensation insurance
as required by law, covering all employees of Tenant, and said insurance shall
be kept in force during the entire term of this Lease.
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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 Lessor. Evidence of such insurance shall be provided by Tenant
by filing with Lessor a copy of the policy and policies, together with a duly
executed certificate of insurance to the effect that the insurance required by this
Lease is extended in favor and consistent with the terms set forth herein. All of
such certificates shall specifically state that "Contra Costa County, its officers,
agents, and employees" are named as additional insureds under such policy or
policies. Said policy or policies or certificates shall contain a provision that written
notice of policy lapses, cancellation or any changes thereto shall be delivered to
Lessor no fewer than thirty (30) days in advance of the effective date thereof.
F. Notice: Tenant shall give Lessor prompt and timely notice of any claim made or
suit instituted coming to its knowledge which in any way directly, contingently or
otherwise, affects or might affect either, and both shall have the right to
participate in the defense of the same to the extent of its own interest.
25. TAXES
Tenant agrees to pay before delinquency all taxes (including, but not limited to,
possessory interest tax), assessments, license fees, and other charges which 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, by Contra Costa County or other
legally authorized governmental authority. Tenant may pay any taxes and assessments
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under protest, without liability, cost or expense to the Lessor, to contest the amount in
good faith.
26. INSPECTION, ACCESS AND NOTICE
Insofar as the same may be necessary for the protection of Lessor's rights, Lessor and
its agents shall at any and all times have the right to go upon and inspect the Premises
and any and every building, structure, or improvement erected or constructed or in the
course of being erected or constructed, repaired, added to, rebuilt or restored thereon.
Lessor 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 bf the Civil Code. Lessor shall not be liable
in any manner for any inconvenience, disturbance, loss of business, or other damage
arising out of Lessor's entry on the Premises as allowed in this Section. Lessor shall
conduct its activities as allowed in this Section in a manner that will cause the least
possible inconvenience, annoyance, or disturbance to Tenant, and shall not materially
interfere with access to or use of the Premises. Tenant shall provide an access gate
through the Premises for emergency vehicles.
27. ASSIGNMENT AND ENCUMBRANCES
Tenant shall not voluntarily assign or encumber its interest in this Lease or in the
Premises, or allow any other person.: or! entity (except Tenant's authorized
representatives) to occupy or use all or any`part of the Premises, without first obtaining
Lessor's written consent, which shall not unreasonably be withheld. Any encumbrance
without Lessor's consent shall be voidable and, at Lessor's election, shall constitute a
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default. No consent to any assignment or encumbrance shall constitute a further waiver
of the provisions of this Section.
If Tenant is a corporation, any (i) dissolution, merger, consolidation, or other
reorganization of Tenant, or (ii) the sale or other transfer of a controlling percentage of
the capital stock of Tenant, or (iii) the sale of fifty ,percent (50%) of the value of the
assets of Tenant, shall be deemed a voluntary assignment. The phrase "controlling
percentage" means the ownership of, and the right to vote, stock possessing at least
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.
If Tenant is in default of monetary obligations to Lessor pursuant to this Lease, Tenant
immediately and irrevocably assigns to Lessor, as security for Tenant's monetary
obligations under this Lease, all rent from any subletting of all or part of the Premises as
permitted by this Lease, or a receiver for Tenant appointed on Lessor's application, may
collect such rent and apply it toward Tenant's obligations under this Lease.
28. SURRENDER OF POSSESSION
Title to all improvements constructed upon the Premises, including all alterations or
additions thereto, shall remain in Tenant until the expiration, cancellation, or other
earlier termination of this Lease. Upon such expiration, cancellation or other earlier
termination of this Lease, title to said improvements shall automatically vest in the
Lessor and, except as otherwise provided herein, said improvements shall remain upon
and be surrendered with the Premises as part thereof.
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If Lessor does not desire title to said improvements, Tenant shall, upon written notice by
Lessor, and at Tenant's sole cost and expense, return the Premises to Lessor clear of
any or all improvements, above or below ground level, constructed by Tenant and
identified in such notice. Tenant shall complete its removal of such improvements at its
expense within one hundred twenty (120) days of the effective date of such notice. If
Tenant fails to remove the improvements, Lessor may remove them at Tenant's
expense, and Tenant shall immediately reimburse to Lessor, in full, all of Lessor's costs
and expenses incurred in removing those improvements upon written demand by
Lessor.
Title to personal property belonging to Tenant shall at all times during the term of this
Lease remain in Tenant, and Tenant shall have the right at any time to remove any or
all personal property of any kind and nature whatsoever that Tenant may have placed or
installed upon the Premises, provided that upon any such removal, Tenant shall repair,
at its sole cost and expense, any damage resulting therefrom and leave the Premises in
a clean and neat condition.
Upon expiration or within thirty (30) days after cancellation or earlier termination of this
Lease, Tenant shall surrender to Lessor the Premises and all improvements, including
alterations and additions, in good condition (except for ordinary wear and tear and
destruction to the Premises covered by Section 31. Destruction), except for those
improvements, alterations and additions that Tenant has the obligation to remove under
the provisions of this Section and Section 14. Alterations and Additions. If Tenant fails
to remove its personal property from the Premises within sixty (60) days after expiration,
cancellation, or termination of this Lease, said property may be removed by Lessor at
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Tenant's expense, by use of the deposit, as provided in Section 7. If Lessor's cost to
remove Tenant's personal property exceeds'the amount of the Security Deposit, then
Tenant shall reimburse Lessor the difference between Lessor's cost and the amount of
the Security Deposit, immediately upon Lessor's written demand.
If Tenant fails to surrender the Premises to Lessor on expiration or within thirty (30)
days after cancellation or termination of the Lease, Tenant shall defend, indemnify, and
hold Lessor harmless from any and all claims, liability, costs, and damages resulting
from Tenant's failure to surrender the Premises, including, without limitation, claims
made by a succeeding Tenant or renter.
29. DEFAULT
The occurrence of any of the following shall constitute a default by Tenant:
(1) Failure by Tenant to pay any Rent or other charges when due, if the failure
continues for thirty (30) days after notice has been given to Tenant.
(2) Abandonment and vacation of the Premises. Failure to occupy and
operate the Premises for one year shall be deemed abandonment.
(3) Insolvency, adjudication of Tenant as bankrupt, or the loss of possession
of the Premises, or any portion thereof, by virtue of any attachment,
execution, or receivership, if the bankruptcy proceedings are not
terminated in Tenant's favor within, or the insolvency or the loss of
possession continues for, sixty (60) days thereafter.
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(4) Assignment for the benefit of creditors.
(5) Failure to comply with any of the provisions of Section 35. Non-
Discrimination.
(6) Any act, condition, event, or failure of performance constituting a default
under any other provision of this Lease.
(7) 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 Lessor'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.
Safety hazards must be cured immediately.
30. LESSOR'S REMEDIES
Lessor shall have the following remedies if Tenant commits a default. These remedies
are not exclusive; they are cumulative and in addition to any remedies now or later
allowed by law.
A. Lessor may terminate this Lease and Tenant's right to possession of the
Premises at any time. No act by Lessor other than giving written notice to
Tenant shall terminate this Lease. Acts of maintenance, efforts to re-let the
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Premises, or the appointment of a receiver on Lessor's initiative to protect
Lessor's interest under this Lease shall not constitute a termination of Tenant's
right to possession. On termination, Lessor 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
Lessor for all detriment proximately caused by Tenant's default.
"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
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rate of the Federal Reserve Bank of San Francisco at the time of the
award, plus one percent (1
B. Lessor, at any time after Tenant commits a default, can cure the default at
Tenant's cost, provided Lessor has given Tenant thirty (30) days notice and (1)
Tenant. has failed to cure such default within such thirty (30) days or, (2) if the
default is of such a nature that it cannot be cured within such thirty (30) day
period, Tenant fails to pursue such cure diligently to completion. If Lessor at any
time, by reason of Tenant's default, pays any sum to cure the default or does any
act that requires the payment of any sum, the sum paid by Lessor shall be due
from Tenant to Lessor within thirty (30) days from the time the sum is paid, upon
notice given by Lessor to Tenant, and Jf paid by Tenant at a later date, shall bear
interest at the rate of twelve percent (12%) per annum or the maximum rate
permitted by law, whichever is greater, from the date the sum is paid by Lessor
until Lessor is completely reimbursed by Tenant. The sum, together with interest
on it, shall be Additional Rent
In the event of default by Tenant in connection with the construction of the
Improvements pursuant to Section 12. Site Improvements, Lessor may exercise
its rights as an obligee against the surety company on the performance bond
required by Subsection 12.C. Performance and Payment Bonds, and may take
such steps as are necessary to cause the cure of said default by the principal,
the surety company, or others.
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31. DESTRUCTION
If any Improvements erected on the Premises are damaged or destroyed as a result of
any uninsurable cause or risk at the time of destruction, in the amount of at least
twenty-five percent (25%) of the replacement.cost.of all Improvements, Tenant shall
have the option to either terminate this Lease or to replace and rebuild the
Improvements so they are in substantially the same . condition as they were in
immediately before damage or destruction. Tenant shall give written notice of such
election to Lessor within forty-five (45) days of the date of the loss or destruction of the
Improvements. If Tenant elects to terminate this Lease, this Lease shall terminate. If
Tenant elects to rebuild, only Ground Rent will be abated in an amount proportional to
the damage for a period not to exceed three (3) months from the date of such written
notice, unless otherwise extended by mutual and written agreement by Lessor and
Tenant. If damage is less than twenty-five percent (25%) of the replacement cost of
Improvements, Tenant shall rebuild the Improvements, and no Ground Rent abatement
shall apply.
Tenant shall have one hundred eighty (180) days to commence repair or restoration of
the Improvements, and shall diligently pursue the completion of such Improvements.
32. CONDEMNATION
A. If any part of the Premises shall be taken as a result of the exercise of the power
of eminent domain or be conveyed to any entity having such power under threat
of exercise thereof (both of such actions being hereinafter referred to as
"condemnation"), this Lease shall automatically terminate as to the portion of the
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Premises which is condemned as of the date physical possession of such portion
is taken by condemnor. Any damages to the remainder of the Premises
sustained by the Tenant and or Lessor as a result of said condemnation action
shall be decided in court or by negotiation and agreement with the condemnor.
B. If the remaining part of the Premises will not be reasonably suitable for the use
described in Section 9. Use of Premises, this Lease may be terminated by either
Lessor or Tenant, at any time by written notice within thirty (30) days after the
date possession of the condemned portion is taken by condemnor. If the
remaining part of the Premises will be reasonably suitable for the operation of the
business described in Section 9. Use of Premises, this Lease shall continue in
full force and effect as to such remaining part. If this Lease is not so terminated,
as of the date of such taking, the Ground Rent shall continue to be the rate then
in effect per square foot per year pursuant to Section 6. Rent, but the total
number of square feet shall be reduced by the number of square feet of the
Premises taken and the monthly and annual rent shall reflect such reduction.
Lessor shall be entitled to the condemnation award attributed to the real property
and the Tenant for the taking of its fixtures and equipment, leasehold
improvements, relocation expenses, and other award not related to the value of
the real property. Nothing herein contained shall prevent Lessor and Tenant
from prosecuting claims in any condemnation proceedings for the value of their
prospective interests.
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33. CANCELLATION BY LESSOR
If at any time ten (10) years or more after the Commencement Date of this Lease,
Lessor requires the Premises for purposes other than a Corporate Hangar, Lessor shall
have the right to cancel this Lease and to acquire full title, control and possession of
said Premises and all Improvements thereon by giving one (1) year's written notice to
Tenant of the effective date of such cancellation.
In the event of such cancellation, Lessor and Tenant shall attempt by negotiation to fix
the value of Tenant's interest in the Premises and the Improvements thereon,
considering the fair market value of the remaining term of the Lease and the then
existing fair market value of the Improvements installed by Tenant on the Premises, and
any other factors that might be used in making such a determination. In the event that
diligent and good faith negotiations fail to establish an agreement on the amount of
compensation to be paid to Tenant, either Lessor or Tenant may give written notice
("Appraisal Notice") to the other, declaring an end to negotiations and requiring the
amount of compensation to be paid to Tenant to be determined by the appraisal method
set forth in this Section 33. The appraisal method shall be as follows: Two qualified and
licensed real estate appraisers shall be selected, one by Lessor and one by Tenant.
Each appraiser shall be a member of the American Institute of Real Estate Appraisers,
have the designation of MAI, and have'C'urrent aviation appraisal experience in
appraising property in the geographic real estate'market where the Premises is situated.
Lessor and Tenant shall each appoint one appraiser within fifteen (15) days of the
Appraisal Notice, and the name of the appraiser so appointed shall be given to the other
party. In the event that either Lessor or Tenant defaults in the appointment of an
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appraiser within said fifteen (15) days, the appraiser elected by the non-defaulting party
shall name a second appraiser. Upon completion of appointment, said appraisers shall
proceed to determine the then existing fair market rental value of Tenant's interest in the
Leased Premises within forty-five (45) days. In determining the then existing fair market
value of the Tenant's interest in the Premises, the appraisers shall consider the
remaining term of the Lease and any other factors then currently in use for standard real
estate appraisals as fixed by the American Institute of Real Estate Appraisers. Such
determination of value shall be binding on both Lessor and Tenant.
In the event said appraisers cannot agree upon fair market value within forty-five (45)
days, they will mutually appoint a third appraiser, who shall be a member of the
American Institute of Real Estate Appraisers, have the designation of MAI and have
current aviation appraisal experience in appraising property in the geographic real
estate market where the Premises is situated. Said third appraiser shall be appointed
within fifteen (15) days. If a third appraiser is not selected within said fifteen (15) day
period, a third appraiser shall be selected by a presiding judge of the Contra Costa
County Superior Court. Within thirty (30) days of selection of the third appraiser, the
first two appraisers shall inform both parties in writing of their fair market value
determinations. Upon completion of the appointment, said third appraiser shall
proceed to determine the fair market value in accordance with the foregoing standards
within forty-five (45) days. The determination made by said third appraiser shall be
binding upon both Lessor and Tenant. Each party shall bear the expense of the
appraiser appointed by that party and one=half the expense of the third appraiser, if
appointed.
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For purposes of Section 33. hereof, the value of Tenant's interest in the Premises shall
include, but is not limited to, (a) the fair market value of this Lease, valued without the
Improvements on the Premises and valued as if the Lease were not to be canceled and
(b) the fair market value of Tenant's Improvements, were they to remain on the
Premises. Also considered shall be the Lessor's current pro rata interest in the
Improvements as described in Section 24.C. Casualties. Lessee shall be entitled to
payment of the amount fixed by the above appraisal method as of the date Lessor
acquires full title, control and possession of the Premises. Lessee shall have no right to
recover the value of its Improvements in the event that the Lease is terminated as the
result of Lessee's default or for any reason other than as specified in this Section 33.
34. FINANCING OF LEASEHOLD ESTATE
Subject to the conditions set forth below, Tenant shall have the right to encumber its
leasehold estate ("Leasehold Estate"), and/or the Improvements thereon, with only
one Mortgage (as defined below) at any one time. For example, Tenant may subject
only the Leasehold Estate to a Mortgage, or:Tenant may obtain one Mortgage covering
both the Leasehold Estate and the Improvembnts;��but Tenant shall not subject the
Leasehold Estate and the Improvements to separate Mortgages at the same time.
Further, Tenant may not then take out additional Mortgages, such as second loans, on
either the Leasehold Estate or the Improvements, or both together. Tenant shall have
the above rights to finance, subject to the following terms and conditions:
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A. The Mortgage and all rights acquired `under it shall be subject to all of the
covenants, conditions, and restrictions contained in this Lease and to all rights
and interests of Lessor;
B. Tenant shall give Lessor prior written notice of any Mortgage, and shall
accompany the notice with a true copy of the note, Mortgage, or other financing
documents;
C. Lessor shall not exercise its remedies under Section 30. Lessor's Remedies, of
this Lease unless:
(1) Lessor sends a written notice of default to both Tenant and Mortgagee
setting forth the nature and extent of the default, and
(2) Within sixty (60) days after service of the notice of default, the Mortgagee
fails to do either of the following:
a. Cure the default if it can be cured by the payment of money; or
b. If Mortgagee does not elect to cure the default by the payment of
money, or if the default cannot be cured by the payment of money,
the Mortgagee commences foreclosure proceedings and thereafter,
in Lessor's sole opinion, diligently prosecutes the foreclosure
proceedings to conclusion.
D. The Mortgagee shall not be liable to perform Tenant's obligations under this
Lease until the Mortgagee acquires the Leasehold Estate by foreclosure, as
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described herein or by transfer in lieu of or under threat of foreclosure. However,
after the Mortgagee acquires the Leasehold Estate, Mortgagee shall be liable to
pay any Rent or other payments due by Tenant, and to cure any default. After the
Mortgagee acquires the Leasehold Estate by foreclosure, the Mortgagee shall be
liable to perform Tenant's obligations under this Lease only until the Mortgagee
thereafter assigns or transfers the Leasehold Estate. Any assignment or transfer
of the Leasehold Estate by the Mortgagee shall first require the written consent of
Lessor. Any such assignee or transferee shall then be liable to perform Tenant's
obligations under this Lease.
E. The time in which the Mortgagee is allowed to cure any default under this Lease
shall be extended by any period during which the Mortgagee is precluded by
current law from foreclosing due to the bankruptcy of Tenant or any court order
prevents the Mortgagee from so acting.
F. (1) As used in this Section:
(a) "Tenant" shall include all assignees and renters of Tenant;
(b) "Mortgagee" shall include the Trustee and beneficiary under a
deed of trust;
(c) "Mortgage" shall a deed of trust, or any other form of real property
security; and
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(d) "Foreclosure" shall include any judicial foreclosure or sale under
the power of sale in lieu of foreclosure, or any transfer in lieu or
under threat of foreclosure.
(2) Estoppel Certificates. Upon written request by Tenant, Lessor shall
execute, acknowledge, and deliver to Tenant or to any lender or
Mortgagee, a written statement stating (a) whether the Lease is
unmodified and is in full force and effect, and if modified, whether the
modified Lease is in full force and effect, and stating the nature of the
modification), (b) the dates to which all rents and other payments due
hereunder have been paid, (c) whether Lessor is aware of any Tenant
default in the performance or observance of any term or condition hereof,
and whether any notice has been given to Tenant of any default which has
not been cured (and, if so, specifying the same), (d) such other
information as Lessor agrees to provide.
35. NON-DISCRIMINATION
A. Tenant hereby covenants and agrees thk in the event facilities are constructed,
maintained, or otherwise operated on the Premises for a purpose for which a
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
other requirements imposed pursuant to Title 49, Code of Federal Regulations,
DOT, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally
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Assisted Programs of the Department oft ran sportation, Effectuation of Title VI of
the Civil Rights Act of 1964, and as said Regulations may be amended.
B. Tenant hereby covenants and agrees that (1)'no person on the grounds of race,
color, sex, 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, (2) that in the construction of any improvements on, over, or under the
Premises and the furnishing of services thereon, no person on the grounds of
race, color, sex, or national origin shall be excluded from participation in, denied
the benefits of, or be otherwise subjected to discrimination, and (3) that Tenant
shall use the Premises in compliance with all other requirements imposed by or
pursuant to Title 49, Code of Federal Regulations, DOT, 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.
C. In the event of breach of any of the above non-discrimination covenants, Lessor
shall have the right to terminate this Lease and to re-enter and repossess said
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 expiration
of appeal rights.
D. Tenant shall furnish its accommodations and/or services on a fair, equal, and not
unjustly discriminatory basis to all users thereof and it shall charge fair,
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reasonable, and not unjustly discriminatory prices for each unit or service,
provided that Tenant may be allowed to make reasonable and nondiscriminatory
discounts, rebates, or other similar types of price reductions to volume
purchasers.
E. Noncompliance with Subsection D. above shall constitute a material breach
thereof and, in the event of such noncompliance, Lessor shall have the right to
terminate this Lease 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 the provisions of said Subsection D.
F. Lessor agrees that it shall insert the above five Subsections in any lease
agreement by which Lessor grants a right or privilege to any person, firm, or
corporation to render accommodations and/or services to the public on the
Premises.
G. Lessor assures that it will undertake an Affirmative Action program as required by
14 CFR Part 152, Sub-part E ("Sub-part E") to ensure 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 Sub-part 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 this Sub-
part E. Tenant assures that it will require that its covered suborganizations
provide assurances to Tenant that they similarly will undertake Affirmative Action
programs, and that they will require assurances from their suborganizations, as
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required by Sub-part E, to the same effort.
36. OPERATION OF AIRPORT BY LESSOR
A. Aviation Hazards: Lessor 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 Lessor or the Federal Aviation Administration, would limit the usefulness of
the Airport or constitute a hazard to aircraft.
B. Navigational Aids: Lessor reserves the right during the term of this Lease or any
renewal and/or extension thereof to install air navigational aids including lighting,
in, on, over, under, and across the Premises. In the exercise of any of the rights
hereof, Lessor agrees to give Tenant no less than ninety (90) days written notice
of its intention to install such air navigational aids.
37. AIRPORT USE AND DEVELOPMENT
A. Lessor reserves the right to further develop or improve the landing area of the
Airport as it sees fit, regardless of the desires or view of Tenant and without
interference or hindrance.
B. Lessor reserves the right, but shall not be obligated to Tenant, to maintain and
keep in repair the landing area of the Airport and all publicly-owned facilities at
the Airport, together with the right to direct and control all activities of Tenant in
this regard.
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C. This Lease shall be subordinate to the provisions and requirements of any
existing or future agreement between'Lessor and the United States, including but
not limited to the Federal Aviation Administration, relative to the development,
operation, and maintenance of the Airport.
D. There is hereby reserved to Lessor, 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. 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 at the Airport.
38. DEVELOPMENT OF PREMISES
A. Tenant shall comply with the notification and review requirements covered in 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, Lessor reserves
the right to enter upon the Premises and to remove the offending structure or
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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, Lessor
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 within the meaning of Section 308a of the Federal Aviation Act of
1958 (49 U.S.C. § 1349a).
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.-
39, INSTRUMENT OF TRANSFER
This Lease shall be subordinate and subject to the provisions and requirements of the
Instrument of Transfer by and between the United States and Lessor dated the 9th day
of October, 1947, and recorded in Book 1137, at page 114 of the Official Records of the
County of Contra Costa, State of California.
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40. 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.
41. NOTICES
Any and all notices to be given under this Lease,: or otherwise, may be served by
enclosing same in a sealed envelope addressed to the party intended to receive the
same, at its address, and deposited in the United States Post Office as certified mail
with postage prepaid. When so given, such notice shall be effective from the date of the
mailing of the same. For the purposes thereof, unless otherwise provided in writing by
the parties hereto, the address of Lessor, and the proper party to receive any such
notices on its behalf, is:
Director of Airports
Contra Costa County Airports
550 Sally Ride Drive
Concord, CA 94520-5550
and the address of Tenant is:
Seecon Builders, Inc.
4021 Port Chicago Highway
Concord, CA 94520
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42. TIME IS OF THE ESSENCE
Time is of the essence for each provision of this Lease.
43. BINDING ON SUCCESSORS
The covenants and conditions herein contained shall, subject to the provisions as to
assignment, apply to and bind the heirs, successors, executors, administrators and
assigns of all of the parties hereto.
44. 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 Lessor or Tenant in
their respective rights and obligations contained in the valid covenants, conditions and
provisions of this Lease.
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45. PROVISIONS
All provisions, whether covenants or conditions, on the part of Tenant and/or Lessor
shall be deemed to be both covenants and conditions.
46. ENTIRE AGREEMENT
This Lease and all exhibits referred to in this Lease constitute the entire agreement
between the parties relating to the rights herein granted and the obligations herein
assumed and supersedes all prior or contemporaneous understandings or agreements
of the parties. No alterations or variations of this Lease shall be valid unless they are in
writing and signed by Lessor and Tenant.
47. 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.
48. NO THIRD-PARTY BENEFICIARIES
Nothing in this Agreement, express or implied, is intended to confer on any person,
other than Lessor and Tenant, and their respective successors-in-interest, any rights or
remedies under or by reason of this Lease.
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49. NO CONTINUING WAIVER
The waiver by Lessor of any beach of any of the terms or conditions of this Lease shall
not constitute a continuing wailver or a waiver of any subsequent breach of the same or
of any other terms or conditions of this Lease. The receipt by Lessor of any Rent with
knowledge of the breach of any term or condition of this Lease shall not be deemed to
be a waiver by Lessor, unless such waiver is specifically expressed in writing by the
Director of Airports. No payment by Tenant or receipt by Lessor of a lesser amount
than specified in this Lease shall be deemed to be other than a payment on account of
such Rent and shall not be deemed a waiver of notice of termination and of forfeiture of
this Lease.
50. COVENANT AGAINST LIENS
Neither Tenant nor Lessor shall 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, the party charged with causing the lien will cause the same to be
discharged, provided howeveIr, that either party may contest any such lien, so long as
the enforcement thereof is stayed.
51. ATTORNEY'S FEES
In the event suit is brought to: enforce or interpret any part of this Lease, the prevailing
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party shall be entitled to recover as an element of his costs of suit, and not as damages,
a reasonable attorneys fee to be fixed by the court. The "prevailing party" shall be the
party who is entitled to recover its costs of suit, whether or not the suit proceeds to final
judgment. A party not entitled to recover its costs shall not recover attorney's fees. No
sum for attorney's fees shall be counted in calculating the amount of a judgment for
purposes of determining whether a party is entitled to recover his costs or attorney's
fees.
52. LEASE AUTHORIZATION
This Lease is made and entered into by Lessor in exercise of authority as recognized in
Section 25536 of the Government Code of the State of California.
53. LEASE 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.
54. CONSTRUCTION
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
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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 th.is,Lease.
55. SIGNATURES
LESSOR TENANT
CONTRA COSTA COUNTY SEECON BUILDERS, INC..
a political subdivision of the State of California A California corporation
By B
Keith Freitas Albe . Seeno,
Director of Airports President
RECOMMENDED FOR APPROVAL: By2�QL
Jeanne C. Pavao
Secretary
By
Beth Lee
Airport Business and Development Manager Note: Two officers must sign on behalf of
corporations. The first signature must be that of the
chairman of the board,president,or vice president;the
second signature must be that of the Secretary,
assistant secretary, chief financial officer or assistant
controller.
APPROVED AS TO FORM:
Silvano B. Marchesi
County Counsel
By
Pamela Zaid
Deputy County Counsel-
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Exhibit A:
Property Description
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Buchanan Field Airport
Seecon Builders, Inc. Hangar Lease
EXHIBIT"A"
Real property in the unincorporated area of the County of Contra Costa, State of
California, being a portion of Rancho Monte Del Diablo, described as follows:
Commencing at the northerly of two found standard Contra Costa County monuments
on Sally Ride Drive as shown!on the drawing titled "Right of Way Marsh Dr.", on file with
the Contra Costa County Public Works Department at file number "BF XI 176"; thence
southerly between the two monuments south 01012'22" east, 27.60 feet (the bearing of
south 01012'22" east being taken for the purposes of this description); thence north
88°46'29" east, 31.40 feet to the Point of Beginning; thence from said Point of Beginning
north 02012'48" west, 46.47 feet; thence north 10029'06" west, 50.56 feet; thence north
23057'31" west, 60.03 feet;j thence north 02049'19" east, 43.80 feet; thence north
57050'07" east, 27.65 feet; thence north 84005'22" east, 34.63 feet; thence north
85036'31" east, 309.87 feet,i thence south 25°30'23" east, 243.05 feet; thence south
88°46'29" west, 216.91 feet; thence south 01013'31" east, 16.31 feet; thence south
88046'29" west, 188.52 feet; thence north 01013'31" west, 8.28 feet; thence south
88046'29" west, 33.10 feet to the Point of Beginning.
Containing an area of 89,2241,square feet of land, more or less.
Bearings are based on the California Coordinate System Zone III (CCS27).
Exhibit "A-1" attached and by this reference made a part hereof.
This real property description has been prepared by me or under my direction, in
conformance with the Professional Land Surveyors Act.
Signature: f' if �� ZW RL
LicensedCard Surveyor
Contra Costa County Public Works Department 12-31-Oua
No.5999 Q
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2255 YGNACIO VALLEY ROAD. SUITE C WALNUT CREEK. CA. 94598-3349
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Exhibit B:
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