RIGHT-OF-ENTRY AGREEMENT
(No. 5329)
San Carlos Airport
San Carlos, California
THIS AGREEMENT, entered into this 30th day of November, 2010, by and between the COUNTY OF SAN MATEO, a political subdivision of the State of California, (“County") and SYDNEY LEVIN and ZELDA LEVIN, Trustees of the Levin Living Trust dated July 31, 1984 (“Operator").
WITNESSETH:
WHEREAS, County is owner of the airport in the City of San Carlos known as the San Carlos Airport, (the “Airport"), a general purpose airport owned and maintained by County for use and benefit of the public and for servicing aviation needs; and
WHEREAS, Operator is the owner of Assessor’s Parcel Number 046-081-550 which is improved with office buildings and aircraft hangars (the “Property”), and Operator desires to provide hangar and tiedown space to tenants of the Property who are not engaged in revenue generating aeronautical activities, except as described in Section 20 of this Agreement; and
WHEREAS, Operator desires to offer its tenants the privilege of using the Airport; and
WHEREAS, County is willing to enter into a long-term agreement with Operator, authorizing non-revenue generating aircraft based on the Property, to use Airport's runway, taxiways, fueling facilities, and other services and conveniences open to the public on the Airport.
NOW, THEREFORE, it is hereby agreed by the parties hereto as follows:
1. TERM
a. County grants to Operator for term of five (5) years, commencing December 1, 2010, and ending December 31, 2015, permission for aircraft based on the Property to use portions of the Airport under the terms and conditions hereinafter set forth.
b. Operator shall have the option to renew this Agreement for one additional five (5) year period, expiring December 31, 2020. Operator may exercise the Extension Option, if at all, by giving written notice to County no later than June 30, 2015; provided, however, if Operator is in material default hereunder on the date of giving such notice and fails to cure such default as provided herein, County may reject such exercise by delivering written notice thereof to Operator promptly after such failure to cure.
2. RIGHT-OF-ENTRY TAXILANE
County has designated a taxi lane opening from the Property to the taxiway and runway system of the Airport. Subject to the conditions of Sections 18 (Closing of Airport) and 23 (Termination by County) of this Agreement, County will endeavor to keep this taxi lane free of obstructions at all times so aircraft may have ingress and egress.
3. RIGHT-OF ENTRY AIRCRAFT
As used in this Agreement, a Right-of-Entry Aircraft is: (1) An aircraft based on the Property or (2) An aircraft used by a person visiting a tenant of the Property. County agrees that occasionally aircraft doing business with a tenant of the Property may stay overnight in Operator's Hangars in a transient status; but Operator shall not engage in transient overnight storage of aircraft on a large-scale basis, which might become competitive with County's transient business.
4. USE OF AIRPORT FACILITIES
County shall:
a. Permit Right-of-Entry Aircraft to enter and exit the Airport through Taxiways at all reasonable times during the life of this Agreement.
b. Allow Right-of-Entry Aircraft full use of all facilities on the Airport which are normally open to and usable by the public subject to Airport rules and regulations. The right to use Airport facilities shall be non-exclusive and shall allow Right-of-Entry Aircraft to use the runway, taxiways, loading and transient aprons, fueling facilities, and any other facilities as required, if they are normally furnished to the public and if County receives payment for all services in accordance with fees charged users of these services and facilities.
5. RIGHT-OF-ENTRY FEES
Operator shall pay County seventy-five dollars ($75.00) per month for each hangar on Operator’s Property, and twenty-five dollars ($25.00) per month for each aircraft stored on a tiedown on Operator’s Property (the “Right of Entry” fee). The Right of Entry fee shall be paid in full for each month, or any portion thereof, without proration or offset for any partial month in which this Agreement is in effect or for any partial month in which a tiedown on Operator’s Property is occupied. Any Right of Entry Fee, if not paid within ten (10) days following the due date, shall bear interest from the due date until paid at the rate of ten percent (10%) per year or, if a higher rate is legally permissible, at the highest rate an individual is permitted to charge under law (the “Interest Rate”). However, interest shall not be payable on late charges incurred by Tenant as set forth in this Section, nor on any amounts on which late charges are paid by Operator to the extent this interest would cause the total interest to be in excess of that which an individual is lawfully permitted to charge. Payment of interest shall not excuse or cure any default by Operator.
Operator hereby acknowledges that late payment by Operator to County of rent or other sums due hereunder will cause County to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, administrative processing of delinquent notices and accounting charges. Accordingly, if any installment of the Right of Entry fee due from Operator is not received by County within ten (10) days after said amount is due, that payment shall be delinquent and Operator shall pay to County, in addition to interest as set forth in Section 6 hereof, a late charge equal to six percent (6%) of the total balance due at that time or Fifty Dollars ($50.00), whichever is greater. A late charge shall be applied for each month rent is delinquent. The parties hereby agree that such late charges represent a fair and reasonable estimate of the cost that County will incur by reason of the late payment by Operator. Acceptance of late charges by County shall in no event constitute a waiver of Operator's default with respect to such overdue amount, nor prevent County from exercising any of the other rights and remedies granted hereunder.
Operator agrees to pay County a special handling charge of Fifty Dollars ($50.00) for any check dishonored by the bank for any reason. This charge shall be added to and become part of Operator's obligations hereunder, and shall be in addition to any charge for late payment provided for herein. Operator agrees to pay County immediately upon request any and all charges for dishonored checks.
In the event any two payments are delinquent in a twelve-month period, County may require Operator to make future payments quarterly in advance for a 24-month probationary period. In calculating advance payments, payment shall be made for all hangars on Operator’s Property. If Operator fails to make any payments on time during the probationary period, such failure shall constitute a default as defined in Section 23 (Termination by County) of this Agreement.
If County changes the fees charged to owners of aircraft based on the Airport, County shall change the Right-of Entry fee so as to maintain equity between charges for aircraft based on County property and for aircraft based on Operator's property. County shall make any such change concurrently with changes in County fees charged for aircraft stored on County property and shall furnish Operator reasonable advance notice and explanation of changes.
6. ACCOUNTS AND RECORDS
Operator shall maintain locally a system of accounts, reports, statements and records satisfactory to County covering the transactions and operations under this agreement, which shall be preserved during the life of this Agreement and for three (3) years thereafter. In addition, County shall have the right to inspect and audit the books and records of Operator from which the report of fees due is prepared at any reasonable time upon request. Expenses of such audit shall be borne by County unless such examination shall disclose an additional amount owing to the County of greater than One Thousand ($1,000.00) for any one year, in which event all costs of audit shall be paid by Operator.
a. County shall have the right to accept and apply on account any amount tendered by Operator, as in full of all or any portion of additional rental without prejudicing County’s right to recover the full correct amount after reduction by the amount so accepted and applied on account. Operator hereby waives the right to insist upon any condition of any such tender that it be accepted in full, if at all.
b. If County’s audit or examination shall reveal that Operator has not paid the proper amount of additional fees, any increase of additional fees resulting from such audit shall be paid by Operator within fifteen (15) days after Operator has received a copy of such audit or examination, together with late fees as set forth hereinabove.
c. If Operator fails to prepare and deliver within the time specified any reports, statements or payments required by this Section, County may elect to treat Operator’s said failure as a substantial breach of this Agreement entitling County to terminate this Agreement, but only after County has given Operator ten (10) days written notice to submit said statement or payment.
7. LICENSES, FEES, TAXES
Operator shall pay all federal, state and local taxes that are levied or required with respect to its employees, such as, but not limited to, social security and workers' compensation. As between Operator and County, Operator shall be responsible for the payment of all sales or excise taxes on its operation. Operator shall also be liable for any special assessments levied against the Property. Operator reserves the right to challenge any tax and special assessments. Operator shall pay, or cause to be paid, before delinquency, any and all taxes and assessments levied against Operator's interest created by this Agreement. Operator recognizes and understands in executing this Agreement that its interest created by this Agreement may be subject to a "possessory interest tax" that the County Assessor may impose on such interest, and any such tax would be the liability of and be paid solely by Operator in addition to any fee or other charges due hereunder. Operator agrees to pay promptly when due, any possessory interest tax imposed on its interest created by this Agreement.
8. RIGHT OF INSPECTION
County reserves and shall at any and all reasonable times, with the accompaniment by authorized Operator personnel, have the right, upon reasonable notice to Operator, to inspect the Operator’s means of access, to post notices of non-responsibility, and to alter, improve, repair or restore the portions of the Airport affected by this Agreement as County may deem necessary or desirable, without abatement of fees. For each of the aforesaid purposes, County shall at all times have and retain a key with which to unlock any gate in the fence that separates the Property from the Airport, and County shall have the right to use any and all means which County may deem proper to open said gate in an emergency without liability to County except for any failure to exercise due care for Operator's property. Any such action by County shall not under any circumstances be construed or deemed to be a forcible or unlawful entry or a termination of this Agreement.
The occurrence of any one or more of the following events shall constitute a material default and breach of this Agreement by Operator:
(i) The vacating or abandonment of the Right of Entry by Operator. (Failure to use the Right of Entry for fifteen (15) consecutive days shall be deemed a vacation or abandonment.)
(ii) The failure by Operator to make any payment of any fee, or any other payment required to be made by Operator hereunder, as and when due, where such failure shall continue for a period of ten (10) days after notice thereof by County to Operator.
(iii) The failure by Operator to observe or perform any of the terms, covenants or conditions of this Agreement to be observed or performed by Operator, other than described in Sub-sections (A (i)) and (A (ii)) hereinabove, where such failure shall continue for a period of thirty (30) days after notice thereof by County to Operator; provided, however, that if the nature of Operator's default and breach is such that more than thirty (30) days are reasonably required for its cure, then Operator shall not be deemed to be in default and breach if Operator commences such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion within ninety (90) days.
(iv) The making by Operator of any general assignment or general arrangement for the benefit of creditors; or the filing by or against Operator of a petition to have Operator adjudged a bankrupt, or a petition or reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Operator, the same is dismissed within sixty (60) days); or the appointment of a trustee or a receiver to take possession of substantially all of Operator's personal property at the Property or of Operator's interest in this Agreement, where possession is not restored to Operator within thirty (30) days; or the attachment, execution or other judicial seizure of substantially all of a Operator's personal property at the Property or of Operator's interest in this Agreement, where such seizure is not discharged within thirty (30) days.
In the event of any such default and breach by Operator described hereinabove, County may at any time thereafter:
1. Terminate Operator's right of entry by any lawful means, in which case this Agreement shall. In the event Operator shall have abandoned the Right of Entry, County shall have the option to either (1) deny Right of Entry and recover from Operator the amount specified in this Section, or (2) proceed under the provisions of the following Sub-section (ii).
2. Maintain Operator's Right of Entry, in which case this Agreement shall continue in effect whether or not Operator shall have abandoned the Property or its Right of Entry. In such event County shall be entitled to enforce all of County's rights and remedies under this Agreement, including the right to recover any fee as it becomes due hereunder.
3. Pursue any other remedy now or hereafter available to County under applicable laws and judicial decisions.
County shall be in material default and breach of this Agreement if it fails or refuses to perform any of the terms, covenants or conditions of this Agreement that it is obligated to perform if the failure to perform is not cured within thirty (30) days after written notice of the default and breach has been given by Operator to County; provided, however, that if the default and breach of County is such that more than thirty (30) days are reasonably required for its cure, then, County shall not be deemed in default and breach if County commences to cure the default within thirty (30) days after the written notice and thereafter diligently prosecuted such cure to completion within ninety (90) days.
In the event of any such material default and breach by County described hereinabove, Operator may at any time thereafter: (a) Terminate this Agreement with a written notice to County and relinquish the right of entry on the date of termination; and/or (b) Pursue any other remedy now or hereafter available to Operator under the applicable laws and judicial decisions.
The notice requirements set forth in this Section modify and supersede the notice requirements of the unlawful detainer statutes of California.
10. WAIVERS
No waiver by County of any of the terms, conditions, or covenants of this Agreement shall be deemed or taken as a waiver at any time thereafter, nor of any other terms, conditions or covenants, nor of the strict and prompt performance thereof of Operator. Any waiver by County must be in writing.
11. INDEMNIFICATION AND INSURANCE
A. Hold Harmless
Operator shall at all times relieve, indemnify, protect and hold harmless, County, its officers, agents, employees, and servants from all claims, suits, or actions of every name, kind, and description, brought for, or on account of injuries to or death of any person, including Operator, or damage to property of any kind whatsoever and to whomever belonging, that may in whole or in part arise from, or be caused by:
(i) The operation, maintenance, use, or occupation of the Premises and defects on the property in which the County has no control;
(ii) The acts or omissions of Operator, its officers, agents, employees, servants, invitees or permittees; or
(iii) The failure of Operator, its officers, agents, employees, servants, invitees or permittees, to observe or abide by any of the terms, covenants and conditions of this Agreement or any applicable federal, state, county or municipal law, rule, or regulation.
(iv) Any other loss or cost, including but not limited to, the concurrent active or passive negligence of County, its officers, agents, employees, or servants resulting from the performance of any work required of Operator or payments made pursuant to this Agreement, provided that this shall not apply to injuries or damage for which the County has been found in a court of competent jurisdiction to be solely liable by reason of its own negligence or willful misconduct.
The duty of Operator to relieve, indemnify, protect and hold harmless, as set forth hereinabove, shall include the duty to defend as set forth in Section 2778 of the California Civil Code.
B. Fire legal Insurance
Not Used
Operator shall secure, and shall maintain at all times during the term of this Agreement, insurance against damage or destruction by fire, windstorm, riot or civil commotion on Operator’s improvements at the Premises, if any, in the full amount of their replacement value, with such provision in the policies issued to cover the same, or in riders attached thereto, as shall provide for payment for losses thereunder sustained by Operator.
Operator at its cost shall maintain Comprehensive Liability insurance for the following coverages with the following limits insuring against all liability of Operator and its authorized representatives arising out of and in connection with Operator’s use or occupancy of the Premises:
(i) Airport Premises Liability with a minimum limit of $1,000,000 Combined Single Limit (CSL) each occurrence; and
(ii) For Operators who operate aircraft, Aircraft Liability with a minimum limit of $1,000,000 CSL each occurrence with a minimum sub-limit $100,000 each person. The policy shall include coverage for Owned, Non-Owned or Leased aircraft;
(iii) For Operators who operate vehicles on the airport, Commercial Automobile Liability for all Owned, Non-Owned and Hired automobiles with a minimum limit of $1,000,000 each accident;
(iv) For Operators who take control of customers aircraft, Hangarkeepers’ Liability with a minimum limit of $100,000 each aircraft and $300,000 each occurrence;
(v) For Operators who provide repair or maintenance services, fuel service, or sales, Products and Completed Operations Liability with a minimum limit of $1,000,000 CSL each occurrence;
(vi) All Comprehensive Liability insurance shall insure performance by Operator of the Hold Harmless Sub-section of this Agreement;
(vii) County shall be named as "additionally insured";
(viii) All required insurance shall contain a Separation of Insureds or Severability of Interests provision; and
(ix) The policy shall not be cancelled or non-renewed unless the County has received 30 days prior written notice. (Ten days prior notice in the event of cancellation for nonpayment of premium is acceptable). Written notice shall be sent to: County of San Mateo, Attn: Airport Manager, 620 Airport Drive, San Carlos, CA 94070.
During the entire term of this Agreement, Operator shall have in effect Workers' Compensation coverage providing full statutory benefits and employer’s liability in the minimum amount of $1,000,000. In executing this Agreement, Operator makes the following certification:
I am aware of the provisions of Section 3700 of the California Labor Code, which require every employer (1) to be insured against liability for Workers' Compensation or (2) to undertake self-insurance in accordance with the provisions of the Code. I will comply with such provisions.
Operator shall pay the premiums for maintaining the insurance required hereinabove. All the insurance required under this Agreement shall:
(i) Be issued by insurance companies authorized to do business in the State of California, with a financial rating of at least an AV status as rated in the most recent edition of Best's Insurance Reports. Coverage provided by State Fund Insurance shall satisfy this requirement.
(ii) Be issued as a primary policy.
(iii) Contain an endorsement requiring thirty (30) days' notice from the insurance company to both parties before cancellation or change in the coverage, scope, or amount of any policy.
(v) County shall be named as "additionally insured" on each policy.
A certificate of insurance, together with evidence of payment of premium, shall be deposited with County at the commencement of this Agreement, and on renewal of the policy not less than twenty (20) days before expiration of each policy.
In the event Operator fails to deliver the certificate of insurance verifying insurance coverage as required in this Section, County shall have the option, after a ten (10) day notice to Operator requesting a certificate, either (a) to terminate this Agreement immediately thereafter with a notice to Operator, or (b) to take out all or part of the required insurance and pay the premium thereon on behalf of Operator. If County opts to take out the insurance on behalf of Operator, the cost of the premium paid by County shall be deemed additional rent due and payable by Operator with the next regular rent payment.
12. COMPLIANCE WITH AIRPORT RULES AND REGULATIONS AND FAA STANDARD PROVISIONS.
Operator agrees to comply with all San Mateo County Airport ordinances, rules and regulations, and at all times to cooperate with County in its operation and management of said airport. Operator shall notify all users of its facilities of all applicable rules and regulations.
Operator shall comply with the standard provisions for all leases of airport land promulgated by the Federal Aviation Administration, as set forth in the attached Exhibit D, and as those provisions may be revised from time to time.
Operator shall comply with Standards for Fixed Base Operators adopted from time to time by the Board of Supervisors affecting all operators on County Airports holding agreements similar to Operator's. The standards currently in effect are set-forth in County of San Mateo, Airport Business Operating Standards dated May 1994. Operator recognizes that it has full responsibility for meeting these Standards.
Operator shall notify all users of its facilities and pilots of aircraft as to all applicable rules and regulations and require users and pilots to comply with them.
13. NON-ABROGATION OF UNITED STATES GOVERNMENT RIGHTS
The provisions of this Agreement in no way abrogate any rights vested in the United States of America relative to the airport as such rights exist between the United States of America and the County of San Mateo.
14. AGREEMENT BINDING ON SUCCESSORS
The terms and conditions of this Agreement shall apply to and bind the heirs, successors, executors, administrators, and assignees of all the parties hereto and all of the parties hereto shall be jointly and severally liable hereunder provided, however, that Operator may as applicable. The tenancy shall continue until terminated by County.
15. HOLDING OVER
The holding over after the expiration of the term of this Agreement with County's consent shall be construed to be a tenancy from month to month, with fees prorated accordingly, on the terms and conditions herein specified so far as applicable. This tenancy shall continue until terminated by County.
16. MOTOR VEHICLES
Vehicles owned or operated by Operator or customers or employees of Operator shall be parked on the Property. County may from time to time grant permission to Operator to park in areas at the Airport, but permission shall be revocable at will without reason and no rights shall accrue to Operator on account of such revocation.
17. OPERATION OF RADIO EOUIPMENT
Operator shall not operate any radio equipment transmitting electronic signals on the Airport which might interfere with operations of the Airport Control Tower, UNICOM, County radios or other electronic transmissions essential to the operation of the airports.
18. CLOSING OF AIRPORT FOR MAINTENANCE AND CONSTRUCTION
County may from time to time be required to close the runway, taxiways, Right-of-Entry taxilane, roads, parking lots, buildings and other facilities for purposes of necessary maintenance, repair or new construction. Operator shall not be entitled to any compensation or damages from County for loss of the use of the whole or any part of the Airport facilities, loss of revenue, or any inconvenience or annoyance as a result of such maintenance or construction.
19. NOTICE OF CORPORATE OFFICIALS
Operator, if incorporated, shall furnish County at the beginning of the terms of this Agreement the names and positions of the officers and directors of the corporation. It shall promptly advise County in writing of any changes which occur in its officers or Board. Operator shall furnish County a copy of any annual report made by the corporation.
20. NON-CONDUCT OF AIRPORT RELATED COMMERCIAL ACTIVITIES BY OPERATOR'S OPERATORS
a. Operator affirms that it has requested access to the Airport so that it may provide its Operators having airplanes with the convenience of having a hangar close to their office in which they can store their aircraft.
b. Operator recognizes that in operating the Airport for use and benefit of the public, it is necessary for County to have a system of fees by which funds needed to operate the airport are raised, and that the County Board of Supervisors has determined that fees are to be charged for all commercial activities conducted in conjunction with the Airport.
c. Unless operating under an airport concession agreement and in conformance with the above, Operator shall not conduct, nor permit any of its Operators to conduct:
(i) Any aeronautical activity as defined by the Federal Aviation Administration (FAA) in its current regulations. FAA Advisory Circular 150/5190-1 or subsequent revisions thereof, which applies on commencement of this Agreement, defines Aeronautical Activity as follows: "Any activity which involves, makes possible, or is required for the operation of aircraft, or which contributes to or is required for the safety of such operations." "The following activities, commonly conducted on airports, are aeronautical activities within this definition: charter operations, pilot training, aircraft rental and sightseeing, aerial photography, crop dusting, aerial advertising and surveying, air carrier operations, aircraft sales and services, sale of aviation petroleum products whether or not conducted in conduction with other included activities, repair and maintenance of aircraft, sale of aircraft parts, and any other activities which because of their direct relationship to the operation of aircraft can approximately be regarded as 'aeronautical activity'.
(ii) Any non-aeronautical activity designed to provide to users of Airport services available at locations on the Airport including sale of pilots' supplies. Operator shall inform all Operators of this condition of the Right-of-Entry Agreement prior to their operation of aircraft from the Airport and shall further inform them that non-compliance with this condition of the Right-of-Entry Agreement shall be a basis for termination of their right to use Operator’s facilities.
d. Operator also recognizes that County must have a procedure for investigating alleged violations and agrees to the procedure stated herein. Upon receipt of an allegation that the provisions of this section are being violated, County will set forth the allegations in a letter to Operator.
Operator will refer the matter to the alleged violator and make all reasonable efforts to obtain a reply to be sent to County within ten (10) days after receipt of letter containing allegations. If Operator determines a violation of this paragraph of the Agreement has occurred, it will take any action it considers appropriate and will advise County of such action.
Should the violation continue, County may deny access to the Airport to the violator's aircraft until County receives reasonable assurance the situation will not recur. Operator shall, if requested by County, take whatever action is necessary to make available entries from log-books of aircraft based on Operator's property.
e. Nothing in this Agreement shall operate to deny the owner of any aircraft the right to personally perform on the owner's aircraft any and all types of aircraft maintenance and repair that owner is authorized by the FAA to perform. If an aircraft owner wishes to have such work performed for remuneration of any sort, the owner shall be subject to the same policies and rules as those applying to all other operations and aircraft based on the Airport. The Airport Manager shall keep Operator advised of such policies and changes thereto.
21. MISCELLANEOUS RESPONSIBILITIES OF OPERATOR
a. Airport security shall be maintained at all times. Operator shall take all steps to restrict unauthorized access onto airport property and the Airport Operations Area (AOA), including controlling thoroughfare access through the Property. Operator shall comply with all current and/or future gate, fencing and security requirements. Operator shall ensure that all gates remain closed and locked at all times and that any mechanical problems with the gates are promptly repaired by Operator. Operator shall take steps to ensure there is no access/egress through the Right-of-Entry taxilane by any vehicles, pedestrians, animals, bicycles or any other traffic except Right-of-Entry Aircraft. All access and security procedures shall be coordinated with and approved in advance by County.
b. Operator shall submit to County concurrently with payment of fees, a monthly listing of all aircraft based on the property. Such listing shall contain the aircraft description including make, model, year, color, registry number, owner’s name, address, contact telephone number and the date the aircraft began using Operator’s Property. This report may be accomplished by reporting additions or deletions to prior lists, except that complete lists shall be submitted in April of each year.
c. Operator shall prevent any aircraft from being fueled on its property except by concessionaires holding a valid fueling concession agreement with County for the fueling of aircraft on San Carlos Airport.
22. CLOSING OF RIGHT-OF-ENTRY TAXIWAY
Upon the expiration of the term of this Agreement, or upon any sooner termination, Operator shall immediately stop operations under this Agreement, and County may block off the area set aside for Operator’s ingress and egress to the Airport and may use this land formerly reserved for the right of ingress and egress for whatever use it desires. If Operator fails to make payments when due as provided in Sections 5 of this Agreement, County may furnish Operator written notice of its intent to close the Right-of-Entry Taxiway in thirty (30) days unless Operator pays all fees due and owing County. If Operator does not pay all fees due and owing within the thirty-day period, County may close the taxiway on the date stated.
Upon the expiration of the term of this Agreement, or upon sooner termination, Operator shall immediately stop operations under this Agreement. County may also terminate this Agreement in its entirety immediately upon the happening of any of the following events:
a. Making by Operator of any general assignment for the benefit of creditors.
b. Occurrence of any act by Operator, which might deprive Operator permanently of the ability to perform its obligations under this Agreement.
c. Abandonment and discontinuance by Operator of activities at the Airport.
d. Failure of Operator to pay fees and/or rentals within thirty (30) days of due date.
e. Assignment, subleasing or other transfer of Operator's rights under this Agreement, or any part thereof, or entering into other agreements or arrangements contrary to the terms of this Agreement, without County's prior written approval.
f. Failure of Operator to cure breach or default of a covenant or condition hereunder within thirty (30) days after written notice of breach or default has been given by County.
Except as provided in Subsections (d) and (f) of this Section 23, this Agreement shall terminate immediately upon delivery of written notice of such termination to Operator. In the event of any such termination of this Agreement, this Agreement shall terminate on the same terms and conditions as if the Agreement had otherwise expired, and the County shall take whatever action deemed necessary for the protection and enforcement of County's rights.
24. TERMINATION BY OPERATOR
a. Operator may terminate this Agreement upon thirty (30) days' written notice if the Board of Supervisors by resolution applicable to all like concession agreements at County Airports raises fees to a level unacceptable to Operator. Under these conditions, Operator shall be liable only for the fees due up to the date of termination.
b. Operator may cancel this Agreement upon assumption by the United States or the State of California or any authorized agent of the operation, control, or use of the Airport or its facilities or any substantial part in a manner substantially restricting Operator's activities.
25. SPECIAL REOUIREMENTS/CONDITIONS
a. Acceptance by County of any statement made or information furnished by Operator with respect to fees or operations shall not preclude County from thereafter questioning its accuracy or completeness. If any statement is found to be inaccurate or incomplete, adjustments shall be made forthwith in accordance with the terms of this Agreement. Operator shall pay forthwith any additional fees which may be due.
b. Operator agrees to provide to the Airport Office a Hazardous Materials Business Program approved by the County of San Mateo Department of Environmental Health. Failure to comply shall result in the termination of this Agreement.
c. Operator agrees to comply and cooperate with the Airport Storm Water Pollution Prevention Plan. Failure to comply shall result in the termination of this Agreement.
d. Operator agrees to operate and encourage the operation of all aircraft covered under with this Agreement with all airport noise abatement procedures. Operator shall comply with all reasonable requests from the airport manager to address noise issues related to its flight operations including, but not limited to: flight procedures, flight routes, take-off and landing routes, engine break-in procedures and hours of operation. Failure to comply shall result in the termination of this Agreement as described in Section 23 of this Agreement.
26. NOTICES
Any notices shall be by certified mail, return receipt requested, prepaid and addressed as follows:
County:
County of San Mateo
County Manager’s Office
Real Property Services
400 County Center
Redwood City, CA 94063
Operator:
Mr. Sidney Levin
c/o Law Office of Martin M. Eisenberg
177 Bovet Road, Suite 600
San Mateo, CA 94402
Notices shall be effective when so mailed, properly addressed, postage prepaid. Either party may change its address by giving written notice to the other. Nothing herein contained shall preclude or render inoperative service of notices on either party in the manner prescribed by law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written.
OPERATOR
SYDNEY LEVIN AND ZELDA LEVIN, Trustees of the Levin Living Trust dated July 31, 1984
By
Sydney Levin
Trustee
By
Zelda Levin
Trustee
COUNTY
COUNTY OF SAN MATEO,
a Political Subdivision of the State of California
By Mark Church
Richard S. Gordon
President, Board of Supervisors
ATTEST:
Clerk of the Board
APPENDIX "A"
OPERATIONAL ACTIVITIES
a. The concession shall be limited to:
(1) Right of Entry Aircraft payments as prescribed in Appendix "B" (Right of Entry Fees) of this Agreement.
APPENDIX "B"
ACTIVITY MINIMUM MONTHLY FEE
Right of Entry |
$75.00 per month for each hangar. $25.00 per month for each aircraft stored on a tiedown. |
All business enterprises conducted at County Airports are subject to concession fees. Aviation activities are prohibited as specified in this Agreement.
APPENDIX “C”
STANDARD PROVISIONS FOR ALL LEASES,
USE, AND OTHER AGREEMENTS AND PERMITS
SAN MATEO COUNTY AIRPORTS
4. Operator/Lessee for itself, its heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree "as a covenant running with the land" that in the event facilities are constructed, maintained, or otherwise operated on the said property described in this lease, agreement or permit for a purpose for which a DOT program or activity is extended or for another purpose involving the provision of similar services or benefits, Operator/Lessee shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, Code of Federal Regulations, DOT, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-assisted Programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended.
5. Operator/Lessee for itself, its personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that: (1) no person on the grounds of race, sex, sexual orientation, color, national origin, religion, age or disability 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 lands and furnishing of services thereon, no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subject to discrimination, (3) that Operator shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, CFR, DOT, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-assisted Programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended.
6. In the event of breach of any of the above nondiscrimination covenants, County may terminate the lease, agreement or permit and re-enter and repossess the land and the facilities thereon and hold them as if the lease, agreement or permit 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.
7. Operator/Lessee shall furnish its accommodations and/or services on a fair, equal and not unjustly discriminatory basis to all users and shall charge fair, reasonable and not unjustly discriminatory prices for each unit or service; provided that Operator/Lessee may make reasonable and nondiscriminatory discounts, rebates or other similar type of price reductions to volume purchasers.
8. Non-compliance with Provision 4 above shall constitute a material breach of the lease, agreement or permit. In the event of such non-compliance, County may terminate this lease, agreement or permit and the estate hereby created without liability thereof; or, at the election of County or the United States either or both of these governments may judicially enforce the provision.
9. County may further develop or improve the landing area of the airport as it sees fit, regardless of the desires or view of Operator/Lessee and without interference or hindrance.
10. County may, but shall not be obligated to Operator/Lessee to, maintain and keep in repair the landing area of the airport and all publicly owned facilities of the airport. County also may direct and control the activities of Operator/Lessee in this regard.
11. The lease, agreement or permit shall be subordinate to the provisions and requirements of any existing or future agreement between County and the United States relative to the development, operation or maintenance of the airport.
12. There is hereby reserved to County, 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 covered by the lease, agreement or permit. This public right of flight shall include the right to cause in this airspace any noise inherent in the operation of any aircraft used for navigation of flight through the airspace or to land at, take off from or operate on the San Carlos or Half Moon Bay Airport, as the case may be.
13. Operator/Lessee shall comply with the notification and review requirements covered in Part 77 of the Federal Aviation Regulations if future construction of a building is planned for the premises covered by the lease, agreement or permit or in the event of any planned modification or alteration of any present or future building or structure on the premises.
14. Operator/Lessee, by accepting this lease, agreement or permit, expressly agrees for itself, its successors and assigns that it will not erect nor permit the erection of any structure or abject nor permit the growth of any tree on any land leased that would be in conflict with the provisions of Part 77 of the Federal Aviation regulations. If these covenants are breached, County may enter upon the land and remove the offending structure or object and cut the offending tree, all of which shall be at Operator/Lessee’s expense.
15. Operator/Lessee, by accepting this lease, agreement or permit, agrees for itself, its successors and assigns that it will not make use of the premises covered by the lease, agreement or permit in any manner which might interfere with the landing and taking off of aircraft from the airport or otherwise constitute a hazard. If this covenant is breached, County may enter upon the premises and cause the abatement of such interference at Operator/Lessee’s expense.
16. Nothing contained in the lease, agreement or permit shall be construed to grant or authorize the granting of an exclusive right within the meaning of Section 308 of the Federal Aviation Act of 1958 (49 U.S.C. 1349A).
17. The lease, agreement or permit and all 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 or the exclusive or non-exclusive use of the airport by the United States during the time of war or national emergency.
18. Operator/Lessee will conduct its programs and operate its facilities in accordance with the requirements of the Americans with Disabilities Act of 1992 and will assure that no qualified disabled person shall, solely by reason of his or her disability be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination, including discrimination in employment. Operator/Lessee will conduct its programs and operate its facilities in compliance with all the requirements imposed by or pursuant to 49 CFR Part 27.
19. Operator/Lessee shall insert the above provisions in any lease, agreement, contract, permit, etc., by which it grants a right or privilege to any person, firm or corporation to render accommodations and/or services to the public on the premises covered by the lease, agreement or permit, including any subleases, and hereby assures that the above provisions will be included in any agreement, contract, permit or further sub-lease granted or entered into by any sub-lessee of the Operator/Lessee.