CITY O[
TE}IACHAPI
LECAL DEPARTMENT
RESOLUTION NO
RESOLUTION OF THE CtW COUNCIL OF THE CITY OF TEHACHAPI
APPROVING THE ClW OF TEHACHAPI'S EMERGENCY
CONTINGENCY COMMITMENT OF FUND BALANCE FOR THE
GENERAL FUND AND REPEAIING RESOLUTION NO. 14.22
WHEREAS, the Governmental Accounting Standards Board (GASB) has issued its Statement No. 54, Fund Balance Reporting and Governmental Fund Type Definitions with the intent of improving financial reporting by providing fund balance categories that will be more easily understood; and
WHEREAS, the City Council of the City of Tehachapi has considered "Fund Balance policy for the Governmental Fund" ("Policy") which outlines the policy and procedures enacted to accurately categorize and report fund balance in governmental funds; and WHEREAS, the "Policy" provides that the City Council may commit General Fund balance for specific purposes by taking formal action and these committed amounts cannot be used for any other purpose unless the City Council removes or changes the specific use through the same formal action taken to establish the commitmenq and WHEREAS, the Finance Director has recommended to the City Council that the Emergency Contingency Commitment of General Fund balance be established at 51,346,099 for Fiscal Year 2022-23; and
WHEREAS, the city council has determined that the Emergency contingency Commitment of General Fund balance should be approved at 51,346,099 for Fiscal Year 2022- 23 as recommended by the Finance Director.
NOW, THEREFORE, BE tT RESOLVED by the city council of the city of Tehachapi as follows:
sEcTtoN L. The city council hereby establishes and approves the Emergency Contingency Commitment of General Fund balance of S1,346,099 for Fiscal Year 2022-23.
SECTION 2. The City Council has determined that the specific purposes for which the Emergency Contingency Commitment of General Fund may be used are the declaration of a state or federal state of emergency or a local emergency and these uses may only be changed by approval of a subsequent resolution.
SECTTON 3. The City Council hereby confirms that in any fiscal year in which recurring sources exceed recurring uses in the General Fund, the amount of the Emergency Contingency I
CITYOF
TEHACHAPI
LEGALDEPARTMENT
Commitment of General Fund balance will be estimated to be an amount equal to two (2) months of regular General Fund operating uses.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Tehachapi at a Regular Meeting this 6th day of March, 2023by the following vote:
AYES:
NOES
ABSENT:
ABSTAIN:
Michael Davies, Mayor of the
City of Tehachapi, California
ATTEST:
Tori Marsh
City Clerk of the City of Tehachapi
I hereby certify that the foregoing resolution was duly and regularly adopted by the City Council of the City of Tehachapi at a Regular Meeting thereof held on March 5, 2023.
Tori Marsh
City Clerk of the City of Tehachapi
2 CITY OF
TEHACHAPI
CALIFORNIA
COUNCIL REPORTS
MEETING DATE: MARCH 06,2023 AGENDA SECTION: AIRPORT
APPROVED
DEPARTMENT
CITY
TO HONORABLE MAYOR DAVIES AND COUNCIL MEMBERS
FROM: ASHTEY WHITMORE, AIRPORT MANAGER
DATE: FEBRUARY 28,2023
SUBJECT: AERONAUTICAL HANGAR GROUND LEASE AGREEMENT - HANGAR 56W
BACKGROUND
On April 30, 2023 the lease agreement with John Tumilowicz for hangar 56W located at the Tehachapi Municipal Airport will expire. Attached is a new Aeronautical Ground Lease Agreement with a term starting on May 1, 2023.
FTSCAL IMPACT
Rental Payment:
S175 /month
52,100 /year
RECOMMENDATION
APPROVE THE AERONAUTICAL HANGAR GROUND LEASE AGREEMENT FOR HANGAR 56W BETWEEN THE
CIW OF TEHACHAPI AND JOHN TUMILOWICZ
AERONAUTICAL GROUND LEASE AGREEM ENT
(Tehachapi Airport) 56W
THIS LEASE AGREEMENT, hereinafter referred to asthis "Lease", is made and entered into this 6th day of March 2023, by and between the CITY OF TEHACHAPI, hereinafter referred to as "LESSOR', and John Tumilowicz, hereinafter referred to as "LESSEE'.
IN CONSIDERATION OF THE MUTUALCOVENANTS CONTAINED HEREIN, THE PARTIES HERETO AGREE AS FOLLOWS:
1. PREMISES:
LESSOR does hereby denrise and lease to LESSEE, and LESSEE hereby hires frmr LESSOR, those certain premises situated in the City of Tehachapi, County of Kern, State of California, hereinafter referred to as the "premises" or "demised premises", and more particularly delineated on Exhibit A, attached hereto and by this reference made a part hereof.
2. TERM:
The term of this Lease shall be lor 20 years, commercing on May 1, 2023 and terminating on April 30,2043 (the "lnitial Term"). LESSEE is hereby granted option to renew the LEASE for an additional term of five years from the expiration of the lnitial Term, and for a second additional term of five years, provided LESSEE gives LESSOR written notice of LE$SEE'S exercise of its option to do so no more than 180 days and no less than 30 days prior to the expiration of the lnitial Term or the first additional term whichever applies. ln the event LESSEE exercises its option to renew the Lease, the renewalshall be such terms and conditions as determined by the LESSOR.
As to the rentalto be charged, same shall be calculated based on the rental rate or rentalformula then in effect by the LESSOR for new aeronautical hangar ground leases. ln addition, the rental terms for the renewal period shall include requirements for such increases as is then required by the LESSOR fornew aeronautical hangar ground leases.
3. HOLDING OVER:
ln the event LESSEE shall hold over after the term herein granted with the expressed or implied consent of LESSOR, such holding over shall be a tenancy only from month to month at twice the rental rate then charged for noncommercial hangar ground leases; provided, however, that if LESSEE is otherwise in default under this Lease at the time of holding over, nothing herein shallexpressly or impliedly curethe defaultand LESSORshall haveall rights to remedythedefault 1of15
in addition to all rights to the increased monthly rental provided for herein.
4. RENTALCONSIDERATION:
As and for rental, LESSEE agrees to pay to LESSOR, the sum cf $175 per month payable in advance on the first day of each month commercing May 1,2023. On January 1 of each calendar yearthereafter, the monthly rental shall increase or decrease forsaid calendaryear by the percentage increase or decrease between the Consumer Price lndex (All Urban Consumers) (Base Years 1982-1984=100) for Los Angeles-Anaheim-Riverside CMSA published by the United States Department of Labor, Bureau of Labor Statistics ("tndex") which is published immediately preceding the commercement of the prior calendar year and the lndex published immediately preceding the cmtmerrcernent of the new calendar year. LESSOR shall notify LESSEE in writing of said rental increase/decrease prior toJanuary 1. LESSOR shall bill LESSEEmonthly forthe rentaland rental shall be due on the date set forth on the billing and shall be deemed delinquent if not received by that date. Notwithstanding the foregoing, rental may also be increased as described in Paragraphs 15 and24.
5. INTEREST:
lf the payments required herein are not paid after they become due, then, in addition to such sums, LESSEE shall also pay interest at the rate of ten percent (10%) per month on the unpaid balance or portion thereof, until paid in full.
6. PURPOSE: NUISANCE:
(a) The demised premises shall only be used by the LESSEE foraeronautical purposes permitted by the Federal Aviation Administration's (FAA) Hangar Use Policy, or locally adopted Hangar Use Policy, which may be updated from time to time. These uses include:
o storing activeaircraft;
. maintenance, repair, or refurbishment of aircraft, but not indefinitely storing nonoperational aircraft; o constructing anateur-built or kit-built aircraft prwided that activities are condrcted safely;
o storing aircraft handling equipment, €.g., tow bar, glider tow equipment, workbenches, and tools and materials used to seryice, maintain, repair or outfit aircraft; items related to ancillary or incidental uses that do not affect the hangars' primary use;
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a storing materials related to an aeronautical activity, e.9., balloon and skydiving equipment, dfice equipment, teaching tools, and materials related to ancillary or incidental uses that do not affect the hangars' primary use, storing non-aeronautical items that do not interfere with the prinary aeronautbal purpose of the hangar, e.9., televisions and furniture;or parking a vehicle at the hangar while the aircraft usually stored in that hangar is f lying, subject to local airport rules and regulations.
a
a
(b) LESSEE shall not do or permit any act or thing to be done upon the premises which is in conflict with the Federal Aviation Adninistration's Hangar Use Policy whbh is incorporated herein by this reference and as amended from timeto-tine, or locally adopted hangar use policy, if any, and as adopted or amended from time-to-tine hereafter, whbh is incorporated herein by this reference. ln the event any of LESSEES uses are for commercial activities as determined by LESSOR in its sole discretion, LESSEE shallfirst obtain a business license from LESSOR prior to conducting any such cmrmercial activity. Additionally, LESSEE shall not permit any act or thing to be done upon the premiseswhich constitutes a nuisance or which may disturb the quiet enjoyment of LESSOR orany tenant of LESSOR on adjacent or neighboring property. LESSEE shallabate or cure any non-permitted use or nuisance on the demised premises or for which LESSEE is responsible within ten (10) days after written notice thereof frmr LESSOR. ln the ryent LESSEE has not taken corrective rction within ten (10) days, LESSOR may take any rction necessary to abate or cure such condition at LESSEE'S sole cost and expense, without further written notice and LESSOR shall have no liability to LESSEE therefore nor for any damages to the premises or to the hangar or to property therein or thereon. Notwithstanding the foregoing, if any such nuisance creates, in LESSOR'S reasonable determination, a condition immediately hazardous to health or safety, LESSOR may immediately, without written notice to LESSEE, enter the premises to abate or cure the condition at LESSEE'S sole cost and expense and LESSOR will use its reasonable best efforts to limit the physical damage incurred to hangar or property to cure such condition. (c) The demised premises shall not be used for residential purposes and neither LESSEE nor any principal, employee, or representative of LESSEE shall live or reside on the demised premises or any structure or hangar thereon nor shall LESSEE allow the demised premises or any structure or hangar thereon to be used for living or residential purposes. The determination of 3of15
whether someone is living or resided on the demised premises or structure thereon shall be made by the LESSOR in its sole and absolute discretion.
7. CONDITION OF PREMISES:
LESSEE has inspected the demised premises and knows the extent and condition thereto and accepts same in its present condition, as is, subject to and including all defects, latent and/or patent.
8. SAFETY:
Any area that is within the control of the LESSEE at the airport shall be kept clear d accumulation of oil, grease, fuel, trash and debris which are potential fire, environmental, or safety hazards, and LESSEE shall comply with all local, state and federal laws, statutes, rules and regulations with regard thereto. LESSOR shall maintain undeveloped grounds adjacent to demised property in a condition consistent with current city and county firecode.
9. ALTERATIONS:
LESSEE shall not construct any improvements or make any alterations of any kind (whether permanent or othenryise) on the demised premises without the written consent of the Cig Manager or designated representative first being obtained. Additionally, all federal, state, and local building regulations must be complied with for any inprwement or alteration to buildings or structures on the premises.
10. SIGNS:
LESSEE shall not construct or place or permit to be constructed or placed, signs, awnings, marquees, or other structures projecting frqn the exterior of the premises without LESSOR'S prior written consent thereof. LESSEE further agrees to remove signs, displays, advertisenrents, or decorations it has placed or permitted to be placed on the premises, which, in LESSOR'S opinion are offensive or otherwise objectionable. lf LESSEE fails to remo/e such signs, displays, advertisements or decorations within ten (10) days after haring receMed written notbe to rernore same from LESSOR, LESSOR reserves the right to re-enter the premises and remove them at LESSEE'S expense.
11. UTILITY EXTENSION OR MODIFICAT!ON:
LESSEE shall pay any and all expenses that may beincurred in obtaining the extension of public utility services to the demised premises from existing facilities or any modification of same. 4of15
12. UTILITIES:
LESSEE agrees to pay during the term of this Lease, or any holding over, all utilities used by LESSEE. The term "utilities" as used herein shall include, but is not limited to, gas, electricity, water, sewer, telephone, and trash and refuse disposal service.
13. MAINTENANCE:
LESSEE agrees to provide maintenance, repair, and upkeep on any structures situated on the demised premises and grounds around the structures in a good, clean, sanitary and safe condition.
,.4. FAILURE TO REPAIR:
ln the event LESSEE shall fail, neglect, or refuse to cmtmerce the repair or maintenarce work required herein within thirty (30) days after receipt of a written notice service by LESSOR, or in the event that LESSEE fails, neglects or refuses to pursue said repair or maintenance work with reasonable diligence to completion, LESSOR may perform or cause to be performed such repair or maintenance work and add the cost thereof to the installments of rent due for this Lease as a charge to LESSEE. lf such repair is determined by the LESSEE to be economically unfeasible, either party shall have the option of terminating the agreement with LESSEE, and at LESSES'S cost, returning the demised propefi to its original pre-agreementcondition.
15. SALE OR REMOVAL OF IMPROVEMENTS:
14 Unless otherwise agreed upon by the parties hereto, if LESSEE desires to sell or otherwise transfer any or all buildings, hangars and other improvernents (the "lmpro/ements") made to or constructed and placed on the premises during or prior to the term of this Lease, or any extensions thereof, LESSOR shall have a right d first rdusal (the "Right d First Refusal") to purchase the improvements and the LESSEE shall give LESSOR a notice in writing at least thifi (30) days before such sale or transfer of the terms d same (the "Lessee Notice'). Arry sale or transfer or agreement to sell or transfer the lmprovements without LESSEE first complying with the requirements of LESSOR'S Right d First Rdusal shall be void and, in addition thereto, shall constitute a breach and material default of this Lease. lf LESSEE has received an offer to purchase the Improvementsthat LESSEE is prepared to accept, the Lessee Notice shall contain a complete copy of the offer (the "Offe/'), or if LESSEE does not have any such Offer but nryertheless wishes to sell ortransferthe lmprovernents to a third party, the Lessee Notice shall include all of LESSEE'S terms and conditions for such sale or transfer. Lessor's Right of First Refusal to purchase the lmprovementsshall be under the same terms and conditions as described in the Lessee Notice. 5of15
The Lessee Notice shall be personally delivered or mailed to LESSOR by registered mail, return receipt requested. LESSOR shall have thirty (30) days from receipt of the Lessee Notice in which to exercise its Right of First Refusal (the "Exercise Period"). lf LESSOR wishes to exercise its Right of First Refusal, LESSOR shall do so in writing to LESSEE prior to expiration of the Exercise Period, provided however that if the Exercise Period terminates on a weekend or holiday, the Exercise Period shall be extended to 1 1:59 PM (California time) on the next business day thereafter. ln the event LESSOR exercises its Right of First Refusal, LESSOR shall complete the purchase of the lmprovenents within reasonable amount of time. lf LESSOR does not exercise its Right of First Refusal, LESSEE shall have the right, only for the next sixty (60) days, to complete the sale or transfer of the inprovements to the dfer or of the dfer, or, if none, to any other third party under thesametermsand conditionsasdescribed in the Lessee Notice, provided howeverthat if thesale or transfer is not completed within sixty (60) days of the expiration of the Exercise Period or if the terms and conditions of the sale or transfer are modified, then LESSOR'S Right of First Rdusal shall be revived and LESSEE shall once again give LESSOR the Lessee Notice containing the terms and conditions or, if applicable, the revised terms and conditions of the sale or transfer and LESSOR shall have all rights with regard thereto previously described herein. LESSEE shall not place a lien or otherwise encumber the lmprwements as part d any sale or tran$er without LESSOR'S prior written consent, whbh consent may be denied or conditioned in LESSOR'S sole and absolute discretion. lf a sale is completed during the term d this Lease, no assignment or subletting of this Lease or of the premises shall occur without cornpliance with paragraph 24 and, additionally, LESSOR shall have the right to increase the rental to the rental then being charged by LESSOR for new aeronautical ground leases as then determined by LESSOR. Notwithstanding the foregoing, if the purchaser of the lmprovements requests a new Lease, LESSOR may, in LESSOR'S sole and absolute discretion, enter into a new Lease with thepurchaser. (b) lf at the termination of this Lease a new Lease has not been entered into by the parties or their successors, then LESSEE shall remove the lmprovrnents and all fixtures and contents therein no later than 30 days after the expiration of the Lease Term without unnecessary damage to the premises and during the 30 day period after expiration of the Lease Term LESSEE shall pay rentalto Lessor as a holdover tenant pursuant to Paragraph 3 of this Lease. lf LESSEE does not effect such rernoral, LESSOR shall have the right to do so and LESSEE shall be obligated to LESSOR forthe costs thereof; provided, however, that all right, title and interest in and to the 6of15
lmprovernents without their removal may be acquired by LESSOR upon terms and conditions mutually agreeable to both LESSOR and LESSEE. Notwithstanding the foregoing, if LESSEE has failed to effect the remoral as required herein and LESSOR and LESSEE have not agreed upon the terms by which LESSOR would acquire the lmprovements, LESSEE shall be in breach of this Agreement and LESSOR shall have all rights described in Paragraph 28 of this Lease with regard thereto.
16. COMPLIANGE WITH LAW:
LESSEE shall, at its expense, promptly conply with any and all laws, ordinances, rules, regulations, requirements and orders whatsoever, present or future, of the national, state, county, or city goverrrnents whbh may in any way apply to the use, maintenance, or occupation of, or operations on the demised property.
17. RIGHT OF INSPECTION:
LESSOR shallhavethe rightto enter uponthedemised premises at allreasonable timesto inspect the premises and LESSEE'S operations thereon. LESSOR reserves all rights in and with respect to the premises, not inconsistent with LESSEE'S use of the premises as in the Lease provided, including (without limiting the generality of the foregoing) the right of LESSOR to enter upon the premises for the purpose of installing, using, maintaining, renewing, and replacing such underground oil, gas, water, sewer, and other pipelines, and such underground or aboveground telephone, telegraph, and electric power conduits or lines as LESSOR may deem desirable in connection with the dwelopment or use of the denrised premises or any other property on the airport or in the neighborhood of the premises. LESSOR shall compensate LESSEE for any and all damage to LESSEE'S improvernents and personal property caused by the exercise of the rights reserved in this paragraph.
18. INDEMNIFIGATION:
LESSEE agrees to indemnify, defend (upon request by the LESSOR) and save harmless the LESSOR, its Council persons, agents, offbers and employees, and each of them, from any and all losses, costs, expenses, claims, liabilities, actions, and damages, including liability for injuriesto person or persons, or damage to property of third persons arising out of or in any way connected with (a) the LESSEE'S use, occupancy and/or operation of the demised premises during the term of this Lease or any holding over, and (b) the construction or the remoral of any facilities or improvements on the demised premises during the term of thisLease or any holding over. The '7 of 15
foregoing obligations of Lessee shall survive the expiration or earlier termination of this Lease.
19. WORKERSCOMPENSATlON:
LESSEE agrees to observe and obey the Workers' Compensation Act of the State d California as from timeto time amended and will indemnify and save and hold harmless LESSOR from any and all liability hereunder.
20. LIABILITYINSURANCE:
LESSEE, in orderto protect LESSOR, its agents, officers and employees, against allclaims and liability for death, injury, loss, and damage as a result of LESSEE'S use, occupancy and/or operation of the demised premises or in a connection therewith, shall secure and maintain in force during the entire term of this Lease and covering all LESSEE'S operations and activities on the airport, a ComprehensMe General Liability insurarce policy in the amount d $1,000,000 with a reliable insurance carrier apprwed by the City and authorized to do such public liability and property damage insurance business in the State of California. Said policies of insurance. (a) shallexpressly name LESSOR, Councilpersons, agents, officers, and employeesas additional insured; and
(b) shall be primary insurance as regards any other valid and collectible insurance LESSOR possesses, and any other insurance that LESSOR may possess shall be considered excess insurance only: and
(c) shall contain a Severability of lnterest or cross liability clause, which is to say, srrh policy shall act as though a separate policy were written for each insured and additional named insured in the policy;and
(d) shall not be subject to cancellation and/or coverage reduction without thirty (30) day's prior written notice to LESSOR.
Within ten (10) days from the date of the Lease, LESSEE shallfile with the City Manager a duly certified Certifbate of lnsurance evidencing that the hereinabove mentioned public liability and property damage (and hangar-keeper liability, where applicable) provisions have been complied with, and setting forth that LESSOR, its councilpersons, agents, officers, and employees are named as additional insured. ln the event that LESSEE shall fail to obtain or thereafter maintain such policies or to furnish evidence thereof to LESSOR, LESSOR may, in LESSOR'S sole discretion, (1) procure the same, pay the premium therefore, and collect same with the next payment of rental due from LESSEE, or (2) terminate this Lease pursuant to Paragraph 28 hereof. 8of15
21. TAXES AND ASSESSMENTS:
LESSEE agrees to pay all taxes and/or assessments levied by any governmental agency upon any interest acquired by LESSEE under the terms of this Lease. Providing further, that LESSEE is aware that certain possessory interests may be created by entering into this Lease and that LESSEE will be subject to the payment of property taxes levied on such interests.
22. LEASE SUBORDINATE TO AGREEMENTS WITH UNITED STATES
GOVERNMENT:
This Lease shall be subordinate to the provisions and requirements of any existing or future agreements between the LESSOR and the United States relatMe to the dorelopment, operation or maintenance of the Airport.
23. AERONAUTICALRESTRICTIONS:
(a) There is hereby reserved to LESSOR for the use and benefit of the public a right of f light for the passage of aircraft in the air space above the surface of the dem ised prem ises.
This public right of flight shall include the right to cause in said air space any noise inherent in the lawfuloperation of any aircraft used for navigation or flight through the said air space or landing at, taking off from, or operation on the TehachapiAirport.
(b) LESSEE shall not erect or permit the erection of any structure, building, or object of natural growth or other obstructions on the demised premises above the maximum elevation permitted by the Federal Aviation Administration. ln the srent the aforesaid covenant is breached, same shall be deemed a nuisance and a material breach of this Agreement and City shall have all rights described under Paragraph 6 (b) to abate the nuisance and City shall have all other rights and remedies available at law or inequi$.
(c) LESSEE shall not make use of the demised premises in any manner, which might interfere with lawful air navigation and communbation, the landing or taking off of aircraft frsn Tehachapi Airport, or otherwise constitute an airport hazard. ln the event the aforesaid covenant is breached, LESSOR reserves the right to enter on the demised premises and cause the abatement of such interference at the expense of LESSEE. (d) LESSOR reserves the right to further develop or improve the landing area at the Tehachapi Airport as it sees fit regardless of the desires or views of LESSEE, and without interference or hindrance.
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(e) LESSOR reserves the right, but shall not be obligated to LESSEE, to maintain and keep in repair the landing area at the TehachapiAirport and all publicly owned frcilities at the airport, together with the right to direct and control all activities of the LESSEE in this regard.
Provided, however, that in the event of the taxiways or runways at the airport are determined to be unfit for aeronautical use by the FAA or by LESSOR or by the Aeronautical Division of the California Department of Transportation, or the airport ceases to be operated as an airport, then this Lease may be terminated by LESSEE, at its option, by its giving of at least thirty (30) days written notice thereof LESSOR.
(0 Nothing herein contained shall be construed to grant or authorize the granting of an exclusive rightwithin the meaning of Section 308 of the Federal Aviation Act.
24. SUBLETTING:
(a) LESSEE shall not assign this Lease or sublet the premises, or any part thereof, withoutthe prior written consent of the LESSOR, which consent shall not be unreasonably withheld but may be reasonably conditioned to include but not be limited to the following:
0 Any assignment or sublease shall be in writing and shall provide that the assignee or sublessee shall agree to and be bound by all of the terms and conditions of the Lease; (iD The assignee or sublessee shall secure and maintain in force during the entire term of such sublease or assignment a liability insurance policy or policies in conformity with the requirements of Paragraph 20, liability lnsurance, with respect to any aircraft hangered on the premises that are owned by sublessee or assignee or other third party; and (iii) A rental adjustment, which shall be, based on the rentalthen in effect by LESSOR for new aeronautical ground leases.
(b) ln the event of an attempted assignment or subletting in violation of the foregoing provisions, then in addition to any and all other rights and remedies available to it, the LESSOR may, at its option, by written notice to the LESSEE, either (1) declare such sublease, assignment, transfer, mortgage, orotherconveyancevoid, or(2)terminatethis Lease and allrights and interest of LESSEE and all other persons hereunder pursuant to Paragraph 28. Any consent by the LESSOR to any assignment or sublease, shall not be deemed orconstrued as a consent to any different or subsequent assignment or sublease. The remedies available herein are cumulative with all other remedies available under this Lease or at law or in equity and the exercise of any 10 of 15
remedy herein or under this Lease or at law or in equity shall not preventthe exercise of any other remedy provided herein or in this Lease or at law or in equity.
25. RIGHT OF INGRESS AND EGRESS:
LESSEE shall have the reasonable right-of-way o/er property owned andcontrolled by LESSOR for ingress thereto and egress there from for pedestrian, vehicular, and air travel, togetherwith the right to use in common with other LESSEE'S or licenses or LESSOR the airplane landing field adjacent to the demised premises. None of these rights are exclusive but shall be exercised in common with and subject to possible similar rights of other users of the airport. All the forgoing is subject to such reasonable rules and regulations as the LESSOR or its authorized agents may makefrmr timetotime. Such rules and regulations, however, shall be reasonable and shall not conflict in any way with similar rules and regulations adopted from time to time by the Federal Aviation Administration or its successor.
26. BANKRUPTGY:
ln the event that (a) LESSEE shall file a voluntary petition in bankruptcy or shall be adjudged a bankrupt in any voluntary bankrupby proceeding; (b) any voluntary or irvoluntary proceeding for the reorganization of LESSEE shall be instituted by anyone other than LESSEE under any of the provisions of the bankruptcy laws d the United States; or (c) a receiver or judicial trustee or custodian shall be appointed for LESSEE, or any lien or any writ of attachment, garnishment, execution or distrait shall be levied upon any LESSEE'S rights or interest under this Lease; or (d) there shall be any other assignment of any LESSEE'S rights or interests under this Lease by operation of law, then in addition to any and all other rights and remedies available to it, LESSOR may, at its option by written notice to LESSEE, terminate this Lease and all rights and interest of LESSEE and all other persons under this Lease. The term 'LESSEE', as used in this paragraph, includes any individual, partnership, or corporation who is a LESSEE hereunder, even though several individuals, partnership, or corporations are such, and includes each partner of any partnership, which is LESSEE hereunder.
27. WAIVER OF BREACH:
Thewaiver by LESSOR of any breach by LESSEE of any provision contained herein shall not be deemed to be a continuing waiver of such provision, or a waiver of any other prior of subsequent breach thereof , or a waiver or any breach of any other provisions contained herein. 11 of 15
28. BREACH:
(a) In the event of a brerch by LESSEE of any term, condition, or agreement herein contained, LESSEE shall have 30 days to cure the breach after written notice has been given to LESSEE by LESSOR, prwided however that if any such breach cannot be reasonably cured within 30 days of such notice, then LESSEE shall have commenced reasonable efforts to cure same within said period. ln the event of LESSEE'S failure to cure or commence the cure d any such breach within 30 days this Lease and all privileges herein granted shall be terminated and be of no further force or effect, and LESSEE shall immediately surrender to LESSOR possession of the premises, and in addition to all other remedies available to LESSOR hereunder or at law or equity, LESSOR shall have the renredies either to remove the lmprwements on the premises at the expense of LESSEE or to retain the lmprwernents and to thereafter be the sole and exclusive owner of same. Notwithstanding the foregoing, in the event LESSEE allows a nuisance to exist on the premises as described in Paragraph 6 of this Lease, LESSEE shall abate the nuisance as required therein and nothing herein shall be deemed to waive or modify the requirements and remedies described in Paragraph 6. Providing further, that in the event LESSEE breaches this Lease and abandons the property before the end of the term, if LESSEE'S right to possession is terminated by LESSOR because of breach of this Lease, LESSOR shall have the right to recover damages from LESSEE as provided in the State of California Civil Code Section 1951.2.
(b) ln the event of a breach by LESSOR of any term, condition, or agreement herein contained, that deprives LESSEE in any manner, in whole or part, of its quiet enjoyment of the demised premises or its rightto utilize them fully as described in Paragraph 6 hereof, or of its rights of ingress and egress described in Paragraph 25 hereof, LESSEE shall not be obligated to LESSORfoT any rental payments otherwise due and payable forthe period of such breach.
29. NEGATION OF PARTNERSHIP:
LESSOR shallnot become or be deemed a partner or joint venture with LESSEE or in any other relationship with LESSEE other than that of landlord and tenant by reason of the provisions of this Lease nor shall LESSEE for any purpose be considered an agent, offber, or employee of LESSOR.
30. SURRENDER OF PREMISES:
On the last day of the term, or extension thereof , or sooner term ination of this Lease, and subject to the rights and remedies of LESSOR and LESSEE described in paragraph 15 hereof , 12 of 15
LESSEE shall peaceably and quietly leave, surrender and yield up to the LESSOR the demised premises in as good condition and repair as at the commencement of LESSEE'S ccuparcy, reasonable wear and tear thereof excepted.
31. ENTIRE AGREEMENT:
This Lease contains all agreements of the parties with respect to the subject matter described herein. No prior agreements or understandings whether oral or in writing pertaining to any such mattershall be effectiveorof any forceoreffect.
32. VENUE AND GOVERNING LAW:
This agreement is made, entered into and is to be performed in Kern County, California. This Lease shall be governed by and construed in accordance with the laws of the State of California.
33. COVENANTS AND CONDITIONS:
Each provision of this Lease performable by LESSEE shall be deemed both a covenant and a condition.
U. TIME OF THE ESSENCE:
Time is hereby expressly declared to be the essence of this Lease and of each and every prwision thereof, and each such provision is hereby made and declared to be a material, necessary and essential part of this Lease.
35. SEVERABILITY:
lf any provision of this Lease is determined by a Court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall in no way be affected thereby and same shall remain in full force andeffect.
36. AUTHORTZED AGENT OF LESSOR:
The City Manager of the City d Tehachapi is the duly authorized agent of LESSOR for purposes of this Lease, and as to any obligations assumed herein by LESSEE, they shall be performed to the satisfaction of the City Manager.
37. NOTICES:
All notices required or permitted under this Agreement or at law shall be deemed to be given when personally served on the party to be noticed or when deposited in the United States mail, Registered or Certified, postage prepaid and addressed asfollows:
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TO LESSOR: City Manager
City of Tehachapi
115 South Robinson Street
Tehachapi, CA 93561
TO LESSEE: John Tumilowicz
25720 Skyline Drive
Tehachapi, CA 93561
(661) 821-0s58
Any party may change its or their address by providing notice of same in the manner herein prescribed.
38. BINDING:
This Lease shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors, and assigns.
39. CAPTIONS:
The captions appearing in this Lease are for convenience only, are not part of this Lease and shall not be considered in interpreilng this Lease.
40. AMENDMENTS:
This Lease may not be altered, amended, or modified except by a writing executed by duly authorized representatives of all parties.
41. ATTORNEY'S FEES:
ln the event any action or proceeding is instituted arising out of or relating to this Lease or for the purpose of enforcing this Lease, the prevailing party shall be entifled to its reasonable attorney's fees and actual costs.
42. RECORDATION:
LESSEE acknowledges its understanding that the law of the State of California authorizes LESSOR to record this Lease or a memorandum of same. ln that regard, LESSEE agrees to execute a memorandum of this Lease for the purposes of recordation in such reasonable form and content as may be proposed by Lessor.
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43. COUNTERPARTS:
This Lease may be executed in counterparts and the respective signature pages for each party may thereafter be attached to the body d this Lease to constitute one integrated agreement which is as fully effective and binding as if the entire Lease had been signed at one time.
lN WTNESSWHEREOF, the parties have hereunto set their hands the day and yearfirst above written.
LESSOR: LESSEE:
CIry OF TEHACHAPI John Tumilowicz
Michael Davies
Mayor
City of Tehachapi, California
Aircraft
N24785 Piper J3C-65
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CITY OF
TEHACHAPI
CALIFORNIA
COUNCIL REPORTS
MEETING DATE: March 5,2023 AGENDA SECTION: Assistant City Manager
APPROVED
DEPARTMENT
crry
TO: HONORABLE MAYOR SMITH AND COUNCIL MEMBERS
FROM: COREY COSTELLOE, ASSISTANT CITY MANAGER
DATE: March 6,2023
SUBJECT: REQUEST TO AMEND RESOLUTION NO. LO.zL TO CORRECT CLERICAL ERROR
BACKGROUND
On March 15,2021, the City Counciladopted resolution No. 10-21 modifying the publicfacilities impactfees relating to police and civic facilities and providing for annual increases based on the consumer price index following the study by Lechowitz & Sengh consultants.
\Mtile the new rates proposed in the staff report were correct, the adopted resolution had one incorrect number for commercial development that that did not match. This inconsistency was noticed when updating the new fees per the consumer price index. Staff has been charging the adopted fees per the report (page attached for reference). The correct totals that should be listed in the resolution for police and civic facilities are as follows:
Commercial $3,631.81 per 1,000 sq ft
AMEND RESOLUTION NO. 1O-21 TO REFLECT THE ACCURATE ADOPTED POLICE AND CIVIC FACILITIES IMPACT FEES TO $3,631.81 FOR COMMERCIAL DEVELOPMENTS PER l,OOO SQUARE FEET.
RECOMMENDATION
AGENDA
5.3 Recommended Fee Summary
A summary of the current and proposed development impact fees is provided in Table 15 Fee Current Proposed
Parks & Recreation (City share)
Single Family
Multifamily
52,137.00
s1,267.00
53,40L.47
52,288.O4
per dwelling unit
per dwelling unit
Parks & Recreation (TVRPD share)
Single Family
Multifamily
s2,137.00
s1,257.00
s3,255.60
s2,189.92
per dwelling unit
per dwelling unit
Civic (includes Police)
Single Family
Multifamily
Commercial
lndustrial
s3,814.32
s2,565.75
s3,631.81
s1,808.11.
Sz,oss.oo
s1,354.00
s2,128.0O
s1,059.00
per dwelling unit
per dwelling unit
per 1,000 sqft
per 1,000 sqft
Table 15: Current and Proposed Fee Comparison
Parks and Civic Facilities Development lmpact Fee Study City of Tehachapi
City of Tehachapi
Parks & Recreation and Civic Fmilities Development lmpact Fee Study
CITYOF
TEHACHAPI
LEGAL DEPARTMENT
RESOLUTION NO.
A RESOTUTION OF THE CITY COUNCIT OF THE CITY OF TEHACHAPI AMENDING RESOTUTION NO. 10-21 MODIFYING PUBTIC FACITITIES
IMPACT FEES RELATING TO POTICE AND CIVIC FACIIITIES FOR NEW DEVELOPMENTS.
WHEREAS, the City Council of the City of Tehachapi adopted resolution No. 10-21 modifying impact fees relating to police and civic facilities for new developments; and WHEREAS, the City Council wishes to amend the public facilities impact fees due to a clerical error, as more particularly described hereinafter.
NOW, THEREFORE, BE lT RESOTVED by the City Council of the City of Tehachapi as follows:
1. That the foregoing recitals and findings are true and correct and are hereby incorporated herein.
2. That the Police and civic lmpact Fees shall henceforth be as follows:
Commercial 53,631.81 Per 1,fi)0 sq ft
3. Except as amended herein, Resolution No. 10-21 shall continue in fullforce and effect. pASSED AND ADOPTED by the City Council of the City of Tehachapi this 6th day of March 2023.
AYES:
NOES:
ABSENT
ABSTAIN
CITYOF
TEHACHAPI
LEGALDEPARTMENT
MICHAEL DAVIES, MAYOR
City of Tehachapi, California
ATTEST:
TORI MARSH, CMC, CITY CLERK
City of Tehachapi, California
I hereby certify that the foregoing resolution was duly and regularly adopted by the City Council of the City of Tehachapi at a regular meeting thereof held on March 6,2023.
TORI MARSH, CMC, CITY CLERK
City of Tehachapi, California
CITY OF
CALIFORNIA
COUNCIL REPORTS
MEETING DATE: MARCH 6,2023 AGENDASECTION: POLICE
DEPARTMENT H
CITY MANAGER
APPROVED
TO HONORABLE MAYOR DAVIES AND COUNCIL MEMBERS
FROM: JASON DUNHAM, (ACTING LIEUTENANT)
DATE: FEBRUARY 28,2023
SUBJECT: CIVICA lAw GROUP AGREEMENT
BACKGROUND
ln 20!6, the City of Tehachapi entered into an agreement with Silver and Wright LLP to provide legal services and representation in code enforcement related litigation, and have utilized them for various legal services since.
ln February of 2023, the law firm Silver and Wright LLP notified the City of Tehachapi the firm would be bifurcating with Matt Silver creating a new firm, the Civica Law Group. Specialized attorneys and the existing team who currently service the City of Tehachapi are transitioning to the Civica Law Group beginning March 1, 2023.
As you may be aware, the City of Tehachapi has no legal obligation to retain either company; however, to maintain continuitywith current practices and obligations, it is recommended thatthe Cityof Tehachapi retain the Civica Law Group and have all current files transferred to them.
The City Attorney, Tom Schroeter, has evaluated the terms of services presented by the Civica Law Group with the previous one for Silver and Wright and found the only substantive difference is in the compensation. ln the earlier agreement, the attorney's fee was St9Z.O0 per hour and S120.00 per hour for paralegals and law clerks.
The Civica Law Group attorney's fees are SZSA.OO per hour for attorneys and 5143.00 per hour for paralegals and law clerks. This is approximately a 2OYoincrease or approximately 3% increase per year since 2017.
RECOMMENDATION
APPROVE THE AGREEMENT BETWEEN CIVTCA LAW GROUP AND THE CITY OF TEHACHAPIAND AUTHORIZE THE MAYOR TO S!GN, SUBJECT TO CITY MANAGER APPROVAL
TE HACHAPI
AGREEMENT FOR CODE ENFORCEMENT LEGAL SERVICES
CITY OF TEHACHAPI
1. PARTIES DATE
1.1. This agreement ("Agreement") is entered into and made effective on March l, 2023, by and betweln the City of Tehachapi ("City"), a California municipal corporation, and CIVICA LAW GROUP, APC, a California Professional Corporation engaged in the practice of law in the State of California. The City and Consultant are sometimes individually referred to herein as 'oParty" and collectively as'oParties."
2. RECITALS
2.1. The City wishes to engage the services of Consultant to provide legal services for code enforcement-related matters as described further in this Agreement. Consultant wishes to provide all such services and has the necessary expertise and competency to provide such services.
3. TERMS
3.1. Scope of Services. Consultant shall provide legal advice, representation and assistance to the City on code enforcement matters as assigned to Consultant. Consultant shall report on a regular basis to the City and City Attorney regarding matters assigned to Consultant, and shall handle matters subject to the input, oversight and direction of City staff and City Attomey.
3.2. Compensation. For all legal services provided in this Agreement, the City will pay Consultant at the blencled rate of $238 per hour for attorney representation and $143 per hour for paralegals and law clerks, which fees shall increase by three percent annually on January l, rounded to the nearest dollar, to offset rising costs.
3.3. Cost Reimbursement. The City shall reimburse Consultant for all costs and expenses in..r*.d by Consultant in providing legal services under this Agreement, including "ou.t
filing fees, proiess server fees, courier and messenger fees, postage expenses, property title research costs, litigation guarantee costs, legal research costs, printing and document reproduction at $0.16 for black and white and $0.60 for color, travel costs, automobile mileage at the prevailing IRS rate, litigation costs, and other costs necessary for legal representation.
3.4. Billine. Consultant shall submit monthly invoices to the City for the legal services provided under thii Agreement. The City shall pay Consultant in full for all legal services rendered and costs incuned as provided for in this Agreement within thirty days of the date of the invoice upon approval of the City Council. If attomeys' fees or costs incurred for a particular matter are minimal, at Consultant's discretion the invoice for that matter may be held and combined with the invoice for the following month.
I
3.5. Performance of Services. The City hereby requests and consents to the transfer of all files to Consultant for matters handled by Consultant. The services of Consultant shall be performed expeditiously in light of the purposes of this Agreement. Consultant shall follow all procedures as established by the City consistent with its duties. Consultant shall work cooperatively with staff and keep them informed on all matters of importance as they arise.
Consultant shall keep the City Attorney informed on the services performed and include the City Attorney in all emails.
3.6. Independent Contractor. Consultant shall perform all legal services required under this Agreement as an independent contractor of the City and shall remain a wholly independent contractor of the City with only such obligations as are required under this Agreement. Neither the City, nor any of its employees, shall have any control over the manner, mode, or means by which
-Consultant, its agents or employees, render the legal services required under this Agreement or its internal employment or compensation decisions, except as otherwise set forth herein.
3.7. Responsibilities of Parties. Consultant will fully cooperate with the City and will keep the City;d its staff informed of the status and progress of all pending matters and all legal *utt.r, of importance. Consultant will manage and control the delivery of all legal services described hereunder in a professional, competent, and cost-effective manner. The City agrees to provide all information and documentation necessary for the attorneys at Consultant to perform their obligations under this Agreement.
3.8. Insurance. Consultant shall carry errors and omissions insurance as required by law of not less than $ 1,000,000 per year in the aggregate. Consultant shall furnish to the City proof of insurance required by this Agreement upon request, and shall notift the City of any changes to the insurance.
3.g. Term of Agreement. The term of this Agreement shall commence on the Effective Date set forth in this Agreement and shall continue in full force and effect until terminated as provided herein.
3.10. Termination. This Agreement may be terminated at any time upon thirty days written notice, from the date of receipt, from either Party, with or without cause. In the event of such termination, the City shall pay Consultant all outstanding fees and costs in accordance with this Agreement for all services provided and costs incurred through the date of termination at the rate pr-ovided in this Agreemeni. The City agrees to execute, upon request, a stipulation in such form as to permit Consultant to withdraw as attorneys of record in any legal action then pending.
Consultant shall make available to the City, or to counsel designated by the City, all documents and records of the legal services provided to the City and shall assist to the fullest extent possible in the orderly transition of all pending matters to the City's new counsel.
3.11. Transfers. The experience, knowledge, capability, and reputation of the attorneys at Consultant were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not transfer its responsibility to provide the legal services required under this Agreement without the written approval of the City. In addition, neither this Agreement, nor any -2-
interest, right, duty, or obligation herein, may be transferred, assigned, delegated, conveyed, hypothecated, or encumbered without the prior written approval of the City.
3.12. Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of California.
3.13. Legal Notices. Notices relating to this Agreement must be in writing and sent to the physical addresses set forth below. A party may change its address for notices by giving notice as required by this provision. Written notice will be considered effective: (a) the day it is personally delivered or actually received; (b) five business days after deposit with the United States Post Office as certified first-class mail with return receipt requested and postage prepaid; or (c) one business day after deposit with a reputable overnight delivery service for next business day delivery.
City:
City of Tehachapi
Attn: City Manager
115 South Robinson Street
Tehachapi, California 93 56 I
Consultant
4000 Barranca Parkway
Suite 250, PMB #782
Irvine, CA92604
(949) s92-016s
Attn: Chief Operating Officer
3.14. Modification. This Agreement can only be changed, modified, amended, supplemented, or rescinded in a separate writing signed by all Parties.
3.15. Waivers. A waiver of any provision of this Agreement must be in writing. Failure to insist upon strict performance of any provision, right, duty, or obligation in this Agreement is not a waiver of the right to future enforcement of that provision, right, duty, or obligation, nor any other provision, right, duty, or obligation.
3.16. Severabilitv. If any of the provisions of this Agreement are found to be unenforceable, those provisions shall be reformed to prevent the unenforceable result in a manner that best preserves the original intent of the provision to the fullest extent possible, and all other provisions of this Agreement shall remain in full force and effect.
3.17. Integration. This Agreement constitutes the final, complete, and exclusive expression of all the terms and provisions of the agreement between the Parties. This Agreement supersedes any previous agreements or negotiations between the parties, whether oral or written.
3.18. Effective Date. The effective date of this Agreement is the date indicated herein. _J
IN WITNESS WHEREOF, City and Consultant have executed this Contract on the days and year set forth below:
CITY OF TEHACHAPI,
A Municipal Corporation
Dated: 2023
Michael Davies
Mayor
Attest:
By:
Tori Marsh
City Clerk
Approved as to Form
By:
Tom Schroeter
City Attomey
Consultant
CIVICA LAW GROUP, APC
Dated: 2023
By: Matthew R. Silver
Managing Partner
Tax ID No.: 92-2415447
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