HomeMy WebLinkAboutC-1713 - Settlement agreement, Orange County Superior Court Case No. 222714M
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MINUTES OF THE BOARD OF SUPERVISORS
OF ORANGE COUNTY, CALIFORNIA
May 27, 1975
IN RE: SETTLEMENT AGREEMENT AND SUPPLEMENTAL AGREEMENT SERVICES AT
THE ORANGE COUNTY AIRPORT - EXTRA FLIGHTS CITY OF NEWPORT
BEACH HUGHES AIR COI:P., DBA HUGHES AIRWEST
On motion of Supervisor Schmit, duly seconded and unanimously
carried, the Chairman and the Clerk are authorized to sign the Settlement
Agreement dated May 27, 1975, between the County of Orange, Hughes Air
Corp., dba Hughes Airwest and the City of Newport Beach, providing
month -to -month tenancy rather than an Interim Agreement with Hughes
Airwest at the Orange County Airport, and the Supplemental Agreement
entitled "Definitions of Operational Requirements ", dated May 27, 1975,
between the County of Orange and Hughes Air Corp., dba Hughes Airwest,
providing for extra flights.
F 1013 -3.3
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OFFICE OF THE CITY CLERK
TO: CITY ATTORNEY
SUBJECT: SETTID[EN'f AMMINT BETWEEN M COUNTY OF ORANGE,
CITY OF NEWPORT BEACH AND HUGM AIM=
0-1913
Attached are the original and four copies of subject agreement.
Please transmit to the firm of Rutan and Tucker for filing in
the appropriate judicial agency.
Please return a fully conformed copy to this office.
Laura Lagos
City Cleric
LL:swk
enc.
/of CITY OF NEWPORT BEACH
CALIFORNIA
City Hall
3300 W. Newport Hivd.
Area Code 714
673 -2110
DATE June 5, 1975
T0: FINANCE DIRECTOR
FROM: City Clerk
SUBJECT: Contract No. 1713
Description of Contract Orange County Airport Settlement Agreement
Authorized by Resolution No. 8501 , adopted on May 27, 1975
Effective date of Contract May 28, 1975
Contract with Hughes Airwest and Orange County
Address
hnount of Contract
City Clerk
DEFINITIONS OF OPERATIONAL REQUIREMENTS
A Settlement Agreement, which creates a Month -to -Month
Tenancy, has been entered into contemporaneously herewith
between the County of Orange, as a settling party and lessor,
the City of Newport Beach, as a settling party, and Hughes
Air Corp., doing business as Hughes Airwest, as a settling
party and lessee. The County of Orange and Hughes Air Corp.,
doing business as Hughes Airwest, hereby agree that until the
Month -to -Month Tenancy created by said Settlement Agreement
is terminated that Hughes Airwest shall be entitled to operate
a maximum number of extra section, charter, maintenance and /or
ferry flights which, in the aggregate, do not exceed .29
average daily departures computed on an annual basis beginning
January 1, of each calendar year. For purposes of making such
computation for the year 1975, and only for such purposes, it
shall be deemed that this Month -to -Month Tenancy commenced
on January 1, 1975.
Date: May,2 , 1975.
ATTEST:
HUGHES AIR CORP., doing business
as HUGHES AIRWEST
By /
By
W, E. ST. JOHN, County Clerk
of the County of Orange and
ex- officio Clerk of the Board
of Supervisors of Orange County
By_L
Deputy
COUNTY.QF ORANGE
c
Date: May , 1975.
APPROVED AS TO FORM:
Adrian Kuyner
County Counsel
S'�jene al fvytnager
Leg & Assistant
Secretary
By
Chairmen
Board of Supervisors
SETTLEMENT AGREEMENT
RECITALS:
A. Hughes Air Corporation is a corporation doing
business under the name of Hughes Airwest, and will be
referred to in this Settlement Agreement as "Hughes ".
Hughes is an interstate and international commercial air
carrier certificated by the United States Civil Aeronautics
Board to service a number of airports in eight western
states, Canada and Mexico, all in accordance with applicable
Federal Aviation Act requirements. It operates as such at
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Orange County Airport. Hughes' operations at Orange County
Airport commenced, through a predecessor airline, Bonanza
Airlines, Inc. (hereinafter "Bonanza "), in 1952. Thereafter,
Bonanza was merged into Air West, Inc., (hereinafter "Air West "),
Hughes acquired substantially all of the assets of Air West
and its operations were thereupon continued by Hughes
commencing on or about April 1, 1970. In September of 1968,
Bonanza commenced jet aircraft operations at Orange County
Airport utilizing DC -9 aircraft. These operations have con-
tinued uninterrupted through the present date and the same
are now conducted by Hughes.
B. On or about March 28, 1967, the County of Orange
and Bonanza entered into a "Certificated Passenger Airline
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Lease ". This Lease granted Bonanza the right to use, in
addition to portions of the airport terminal building, all
public airport facilities including "taxiways, runways,
aprons, navigational aids and facilities, which are or may
hereafter be provided at the Orange County.Airport relating
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thereto for purposes of landing, takeoffs and taxiing of
lessee's aircraft ". On or about March 31, 1970, Air West
and the County of Orange executed a document entitled
"Amendment of Certificated Passenger Airline Lease ". The
terms of the Amendment placed limitations on the hours of
operations, types of aircraft, number of operations and
approach and departure procedures which could be utilized
by Air West and also placed upon Air West an obligation to
utilize its best efforts in the use of the airport to reduce
and minimize environmental irritation, including noise and
air pollution, The Amendment provided that the Orange
County Board of Supervisors approve "an average number of
8.5 daily scheduled takeoffs for the calendar year 1970,
10.9 for 1971, and 13.7 for 1972, to be calculated at the
end of each such calendar ;year ". The Amendment did not
attempt to expressly define the rights of Hughes to conduct
flight operations in addition to those defined as daily
scheduled takeoffs, which flight operations are sometimes
classified as extra section, charter, maintenance or ferry
flights. The 1967 Certificated Passenger Airline Lease was
for a term of five years and expired on March 28, 1972.
Hughes succeeded to all of the rights and obligations of the
Certificated Passenger Airlines Lease, as amended.
C. Prior to the time the Certificated Passenger
Airline Lease expired, the County of Orange and Hughes
communicated with one another regarding the execution of a
new long -term lease which would define their respective
rights and obligations relating to Hughes' use of the Orange
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County Airport. These communications continued over a period
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of time, but did not result in the execution of a new long-
term lease. During the course of these communications, the
County of Orange and Hughes agreed that Hughes would operate
at Orange County Airport under a Month -To -Month Tenancy,
the terms and conditions of which would be the.same (except
as to rental and similar payments) as those set forth in'the
Certificated Passenger Airline Lease, as amended. In late
1972, the County of Orange advised Hughes that it was the
County's position that an Environmental Impact Report would
be required to be produced regarding the operations of Hughes
prior to entering into a long -term lease. Thereafter, Hughes
and the County of orange agreed that the County of Orange
would produce an Environmental Impact Report pertaining to
the totality of present and planned operations at Orange
County Airport, inclusive of those operations relating to
Hughes. In Spring of 1974 a preliminary study was done by
the County of Orange regarding Hughes' operations at the
Orange County Airport and, thereafter, a Negative Declaration
was executed and approved by the County of Orange. As con-
templated by this Negative Declaration, Hughes and the County
executed a document entitled "Interim Rental Agreement" on
November 19, 1974.
D. The City of Newport Beach for the past several
years has taken the position that aircraft operations at
Orange County Airport must be closely monitored by virtue
of what the City of Newport Beach believes to be the adverse
environmental impact of such operations. The City of Newport
Beach appeared and protested the various approvals of the
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Negative Declaration and the Interim Rental Agreement made
by various organs of the County of Orange, and contended
that no such Interim Rental Agreement could rightfully be
executed by the County of Orange and Hughes except and ,
unless an Environmental Impact Report were prepared.
E. After the execution of the Interim Rental
Agreement, the City of Newport Beach filed an action seeking
a writ of mandamus, which is now entitled "CITY OF NEWPORT BEACH,
a municipal corporation, Petitioner, vs. COUNTY OF ORANGE,
a political subdivision of the State of California; THE
BOARD OF SUPERVISORS OF THE COUNTY OF ORANGE, PLANNING
I COMMISSION OF THE COUNTY OF ORANGE, and DOES I through XX,
inclusive, Respondents, and HUGHES AIR CORPORATION dba
HUGHES AIRWEST, Real Party in Interest ", in the Superior
Court of the State of California, for the County of Orange,
bearing Case No. 222714.
F. This action has been actively prosecuted by
the City of Newport Beach, and has been actively defended
by the County of Orange and by Hughes. Each party of this
litigation firmly believes that its position, as set forth
in the various pleadings filed therein, is correct. All
parties, however, agree that the settlement set forth in
this.Settlement Agreement constitutes a practical solution
to the litigation, which will avoid all of the expenses
which would otherwise be attendant to its prosecution and
defense through the trial and appeal process, and they
therefore agree to enter into this settlement, the same
being without any prejudice to the respective positions they
have taken or may wish to take in the future.
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AGREEMENT:
The parties hereto covenant and agree that Hughes
and the County may and they hereby do enter into a Month -to-
Month Tenency, in accordance with the terms and conditions
set forth herein.
TERMS AND CONDITIONS
OF MONTH -TO -MONTH TENANCY
1. DEMISED PREMISES (N)
The premises rented to Hughes are hereinafter
referred to as the Demised Premises. Said premises shall
consist of the following:
A. Exclusive use of approximately 1,620 square
feet of space located in the Orange County Airport Passenger
Terminal Building as shown on Exhibit A, attached hereto and
by this reference made a part hereof.
B. Nonexclusive use in common with other tenants
of the following areas:
(1) Waiting and boarding areas.
(2) Passenger Terminal Building ramp areas.
(3) Return baggage -claim area.
(4) All other public areas.
The use of these areas shall be subject to the
reasonable control and regulation of the County of Orange's
Director of Aviation.
2. TERM
The County of Orange shall not in any way, directly
or. indirectly, seek to disturb Hughes' tenancy under such Month -
To- Month.Tenancy unless it shall have good cause to do so by
virtue of Hughes' breach of any of the terms or conditions of the
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month -to -month tenancy hereby established. All of the terms and
provisions of this Month -To -Month Tenancy shall be binding upon
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Hughes until such time as Hughes may elect to terminate the
Month -To -Month Tenancy established pursuant to this Settlement
Agreement, which election may be made upon the occurrence of
any of the following three events: (a) The completion of the
overall Airport Environmental Impact Report and the negotiation
and execution of a long -term lease for Hughes following the
completion of such overall Airport Environmental Impact Report;
or (b) an increase in the scope of allowed flight operations or
rights of Air California at Orange County Airport; or (c)
January 1, 1977. In the event this Month -To -Month Tenancy is
not earlier terminated in accordance with its terms the County
of Orange shall be bound by its terms until April 1, 1977, at
which time this Month -To -Month Tenancy shall terminate.
3. USE (N)
County of Orange rents to Hughes, and Hughes hires
from County of Orange, for the purpose of conducting a scheduled
commercial airline operation, those certain Demised Premises
as hereinafter set forth. This operation may, subject to
the limitations set forth in Clause 4 (OPERATIONAL REQUIREMENTS),
'include any or all of the following uses.:
A. Loading and unloading of passengers.
B. Loading and unloading of baggage.
C. Passenger ticketing operations.
D. Flight operations office.
E. Line servicing of aircraft subject to the
written approval of the Director of Aviation.
F. Freight and cargo operations subject to the
written approval of the Director of Aviation.
G. Air charter activities.
6.
H. Commissary services subject to prior written
approval of Director of Aviation.
All uses outlined above are also subject to any limitations
set forth by the federal or state government.
4. OPERATIONAL REQUIREMENTS.
Hughes agrees to abide by the following conditions
and requirements:
A. Flight Operations.
The number of scheduled passenger flight operations
shall not exceed 13.7 average daily departures (inclusive of
flights which replace scheduled departures) computed on an
annual basis beginning January 1 of each calendar year. For
purposes of making such computation for the year 1975, and
only for such purposes, it shall be deemed that this Month-To-
Month Tenancy commenced on January 1, 1975. Nothing contained
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in this subparagraph shall be deemed to in any way limit
or modify any rights which accrued to Hughes by virtue of the
1970 amendment to the Certificated Passenger Airline Lease,
as set forth in.Recital B herein.
B. Hours of Operation.
Hughes' aircraft shall not depart from the Airport
between the hours Of 10:00 P.M. and 7:00 A.M., and shall not
arrive at the Airport between the hours of 11 :00 P.M. and
7:00 A.M., except in the case of emergency and mercy flights
upon prior approval of the Director of Aviation if time
reasonably permits.
C. Aircraft Types.
Hughes shall operate only those types of aircraft
whose rated noise output measured in terms of decibels are
no noisier than the Boeing 737 or the DC -9. Hughes shall
not operate at the Orange County Airport aircraft which have a
gross weight in excess of 95,000 pounds.
7.
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D. Noise and Air Pollution.
Hughes shall use its best efforts at all times in
its use of the Airport to reduce and minimize environmental
irritants and pollutants. To this end:
(1) Hughes shall maintain smokeless engine.
installations on all its aircraft using Orange County Airport.
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(2) Hughes shall make its best effort to
develop and implement safe and effective noise abatement
takeoff and approach procedures at Orange County Airport.
(3) Hughes shall cooperate with the Director
of Aviation in efforts to minimize noise and air pollution.
E. Moving of Aircraft and Ramp Equipment.
If, in the opinion of County of Orange's Director
of Aviation, it becomes necessary to move Hughes' aircraft
or ramp equipment, in order to insure public safety, improve
ramp area efficiency, or otherwise, then Hughes shall immediately
move said aircraft or ramp equipment to the location designated
by County of Orange's Director of Aviation.
5. RENTAL (N)
Hughes shall pay One Thousand One Hundred Fourteen
Dollars ($1,114) per month in advance for the rental of
Demised Premises. Said sum is to be due on the first day
of the month and payable,on or before the fifteenth day of
each month. In the event the rental payment of this Month -To-
Month Tenancy commences on some day other than the first day of
the month, the first month's rent shall be prorated to reflect
the actual period of tenancy.
In addition to the above - mentioned rental, Hughes
shall pay concurrently with above - mentioned rental the
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following fees and percentages:
A. Tie -down and automobile parking fees based upon
the latest schedule established by County of Orange for each
and every tie -down space and automobile parking space that
may be made available by the Director of Aviation.
B. Landing fees based upon the latest schedules
established by County of Orange's Board of Supervisors
covering the operation of scheduled airlines and commercial
operations at Orange County Airport.
C. A fee per enplaning passenger as established
by County of Orange's Board of Supervisors, and as authorized
by Federal authority, to cover costs of maintaining armed
law- enforcement officers at the Airport boarding gates in
compliance with F.A.A. requirements.
D. Three Hundred Twenty -Two Dollars ($322) per
month for Hughes' proportionate share of utility costs for
first -floor exclusive and non - exclusive areas of the Terminal
Building. On March 31, 1975, and each March 31 thereafter,
the utility charge shall be adjusted to reflect 17.01% of
actual utility costs for the prior 12 -month period, plus
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such amounts necessary to cover rate increases which come
into effect or which will be in effect for the next 12 -month period.
E. Four Hundred Ninety -Six Dollars ($496) per
month for Hughes' proportionate share of janitorial services
provided by private contract to all first -floor public and
non - exclusive areas of Demised Premises. Upon future awards
of new contracts for.janitorial services covering the public
and non - exclusive areas of Demised Premises, Hughes' janitorial
payments shall automatically be adjusted in accordance with
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the following formula:
X = A (.2238
(C +
0
.5223B)
X = Adjusted janitorial cost.
A = Monthly cost of janitorial services to
public and nonexclusive areas of Terminal Building under new
contract.
B = Hughes' proportion of total passenger
volume to other airlines at Orange County Airport calculated
at the time of adjustment for the preceding twelve (12)
operating months of the airline.
C = Number of commercial airlines operating
from the Passenger Terminal Building at the time of adjustment
of janitorial costs.
Hughes shall have the right to inspect all County
of Orange's records regarding Passenger Terminal Building
utility and janitorial service costs and proportional charges.
6. CHARGE FOR LATE PAYMENT (M12.1 S)
If any payment is not paid to County of Orange within
ten (10) days after due date, a late charge of one percent
(1%) of the payment due and unpaid plus $25.00 shall be added
to the payment and the total sum shall become immediately
due and payable to County of Orange. An additional charge
of one percent (1%) of said payment, excluding late charges,
shall be added for each additional month that said payment
remains unpaid.
7. RECORDS AND REPORTS
Hughes shall forward each month to County of Orange's
Director of Aviation no later than the fifteenth day of each
month an accurate list of the previous month's flight operations.
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Said list shall show all flights conducted by Hughes to
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or from Orange County Airport. Said list shall also segregate
flights into categories and contain a breakdown on the
number of enplaned and deplaned passengers and enplaned
and deplaned 'freight poundage into categories provided
for by County of orange's Director of Aviation.
Hughes shall submit to County of Orange's Director
of Aviation a list of all Hughes' employees who are
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employed at Orange County Airport. Said list shall include
the employee's name, address, telephone number, and job
position. Any change in this list shall be reported in
writing to County of Orange's Director of Aviation within
15 days after the date such change takes place.
B. AUDIT
County of Orange shall have the right to audit
Hughes' financial.and other records pertaining to its operation
on the Demised Premises. The cost of such audit shall be borne
by County of Orange unless the results of such audit reveal a
discrepancy of more than five percent (5%) between the total
rental due as reported by Hughes in accordance with this Month-
To -Month Tenancy and the total rental due as determined by
said audit. In case of a greater discrepancy, the full cost
of the audit, as determined by County of Orange's Auditor-
Controller, shall be borne by Hughes.
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9. RATES, RENTALS AND OTHER CHARGES (N)
Hughes shall furnish County of Orange's Director
of Aviation with a complete schedule of all prices for each
unit or service to be charged to the general public. Hughes
agrees to charge fair, reasonable, and not unjustly dis -,
criminatory prices for each unit or service.
10. ALTERATIONS (N)
Hughes may, having first obtained the written
consent of County of Orange's Director of Aviation, make such
improvements and changes in the Demised Premises, including
but not limited to the installation of such fixtures,
partitions, counters, and shelving in the exclusive -use areas
of the Demised Premises, as Hughes may deem necessary. Any
changes made in the Demised Premises permitted under this
clause are subject to inspection and approval by County of
Orange. It is agreed that any such items attached to or
placed in or upon the Demised Premises shall, upon installation
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in the Demised Premises, become the property of County of
Orange.
11. MAINTENANCE (N)
County of Orange shall furnish, subject to the pro-
visions of Clause 5 (RENTAL), complete janitorial services
and maintenance to all public areas within the Airport Terminal
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Building and all nonexclusive areas of the Demised Premises.
Hughes agrees to repair and maintain in good order,
at its own cost and expense, the exclusive -use areas of the
Demised Premises, including but not limited to any damage to
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plate glass windows, furniture, fixtures, and equipment
caused by acts of Hughes' employees or agents.
Hughes further agrees at its own expense to provide
janitorial services.to the exclusive -use areas of the Demised
Premises, including all necessary supplies, and to keep said
Demised Premises in a neat, clean and orderly condition.
This includes, but is not limited to, the prevention of the
accumulation of any rubbish or waste materials which might be
or constitute a fire hazard or a public or private nuisance.
Hughes shall not be liable to County of Orange for
failure to make any repairs or for improper maintenance or
for providing improper janitorial services until after written
notice from County of Orange's Director of Aviation. If,
however, within a reasonable time after receipt of said notice,
Hughes fails to make such repair or maintenance or provide
the required janitorial services, County of Orange may cause
to have such repairs, maintenance, or janitorial services
made and add the cost thereof to the rent thereafter accruing.
If said costs are not paid promptly by Hughes,
the Month -to -Month Tenancy shall be deemed to be in default and
County of Orange shall be entitled to all legal remedies provided
hereunder.
12. MECHANICS LIENS (N)
Hughes shall at all times indemnify and save County
of orange harmless from all claims for labor or materials in
connection with construction, repair, alteration, or
installation of structures, improvements, equipment, or
facilities within the Demised Premises, and from the cost
of defending against such claims, including attorney's fees.
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In the event a lien is imposed upon the Demised
Premises as a result of such construction, repair, alteration,
or installation, Hughes shall procure and record a bond in
accordance with Section 3143, Civil Code, which frees the
Demised Premises from the claim of the lien and from any action
brought to foreclose the lien.
Should Hughes fail to procure and record said bond
within ten (10) days after the filing of such a lien, this
Month -to -Month Tenancy shall be in default and shall be subject to
immediate termination.
13. INSURANCE (M26.1 S)
Hughes shall maintain insurance acceptable to County
of Orange in full force and effect throughout the term of this
Month -to -Month Tenancy. The policy or policies of insurance
shall name County of Orange as an additional insured and shall,
as a minimum, provide the following forms of coverage in the
amounts specified:
A. Comprehensive Public Liability: $3,000,000
single limit coverage.
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B. Fire and Extended Coverage: Not less than 90%
of the cost of replacement of all insurable improvements within
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the Demised Premises. Water damage and debris cleanup pro-
visions shall be included.
Insurance shall be in force the first day of the
commencement of the Month -to -Month Tenancy. Additional fire
insurance in the amount stated above shall be in force upon
the date of completion of construction or installation of each
major insurable improvement by Hughes.
Each policy of insurance shall contain the following
clauses.
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"IT IS AGREED THAT THIS POLICY SHALL NOT BE
CANCELLED NOR THE COVERAGE REDUCED UNTIL THIRTY
DAYS AFTER DEPARTMENT OF REAL PROPERTY SERVICES,
COUNTY OF ORANGE, SHALL HAVE RECEIVED WRITTEN
NOTICE OF SUCH CANCELLATION OR REDUCTION. THE
NOTICE SHALL BE SENT BY CERTIFIED OR REGISTERED
MAIL AND SHALL BE DEEMED EFFECTIVE THE DATE
DELIVERED, AS EVIDENCED BY PROPERLY VALIDATED
RETURN RECEIPT."
"THE INCLUSION HEREIN OF ANY PERSON OR ENTITY
AS AN INSURED SHALL NOT AFFECT ANY RIGHT SUCH
PERSON OR ENTITY WOULD HAVE AS A CLAIMANT
HEREUNDER IF NOT SO INCLUDED."
Hughes agrees to deposit with County of Orange, at
or before the times at which required to be in effect,
certificate or certificates of insurance necessary to satisfy
County of Orange that insurance provisions of this month to
month tenancy have been complied with and to keep such insurance
in effect and the certificates therefor on deposit with County
of Orange during the month to month tenancy provided for herein.
County of Orange shall retain the right at any time
to review the coverage, form, and amount of the insurance
required hereby. If, in the opinion of County of Orange's
Insurance Division, the insurance provisions of this Month to
Month Tenancy do not provide adequate protection for County of
Orange and for members of the public using the Demised Premises,
County of Orange's Department of Real Property Services may
require Hughes to obtain insurance sufficient in coverage, form,
and amount to provide adequate protection.
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County of Orange's
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requirements shall be reasonable but shall be designed to
assure protection from and against the kind and extent of
the risks which exist at the time a change in insurance is
required.
County of Orange shall notify Hughes in writing of
changes in the insurance requirements and, if Hughes does not
deposit copies of acceptable certificate of insurance with
County of Orange incorporating such changes within a reasonable
time of receipt of such notice, the Month -to -Month Tenancy shall
be in default without further notice to Hughes, and County of
Orange shall be entitled to all legal remedies.
The procuring of such required certificates of
insurance shall not be construed to limit Hughes' liability
hereunder, nor to fulfill the indemnification provisions and
'requirements of this Month -to -Month Tenancy. Notwithstanding
said certificates of insurance, Hughes shall be obligated for the
full and total amount of any damage, injury or loss caused
by negligence or neglect connected with this Month -to -Month
Tenancy with use or occupancy of the Demised Premises.
14. INDEMNIFICATION (N)
Hughes shall indemnify and save Harmless County of
Orange, its officers, agents, and employees from and against
any and all claims, demands, loss, or liability of any kind
or nature which County of Orange, its officers, agents, and
employees may sustain or incur, or which may be imposed upon
them or any of them for injury to, or death of, any person
or persons or damage to property as a result of, arising out
of, or in any manner connected with the Month -to -Month Tenancy
or with the occupancy and use of Hughes; provided, however,
that this covenant shall not extend to liabilities incurred
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from any negligence, acts, or omissions on the part of County
of Orange, its officers, agents, or employees.
15. ASSIGNMENT AND SUBLETTING (N)
Any mortgage, pledge, hypothecation, encumbrance,
transfer, sublease, or assignment (hereinafter in this clause
referred to collectively as "Encumbrance ") of Hughes' interest
in the Demised Premises, or any part or portion thereof,
shall first be approved in writing by County of Orange. Any
Encumbrance which has not been approved by County of Orange
in writing shall be void. Occupancy of the Demised Premises
by a prospective transferee, sublessee, or assignee before
approval of the transfer, sublease, or assignment by County
of Orange shall constitute a breach of this Month -to -Month
Tenancy.
16. BILLBOARDS AND SIGNS (N)
Hughes agrees not to construct, maintain, or allow
upon the Demised Premises any billboards or signs except
those approved in writing in advance by County of Orange's
Director of Aviation.
17. NONDISCRIMINATION (M47.1 S)
Hughes agrees not to discriminate.against any person
or class of persons by reason of sex, race, color, creed, or
national origin. Hughes shall make its accomodations and
services available to the public on fair and reasonable terms.
18. NONEXCLUSIVE RIGHT (M50.1 S)
It is understood and agreed that nothing herein
contained shall be construed to grant or authorize the
granting of an exclusive right within the meaning of Section
1349, Title 49, of the United States Code.
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19. DEVELOPMENT OF LANDING AREA (M51.1S)
County of Orange reserves the right to further develop
or improve the landing area of the Airport as it sees fit,
regardless of the desires or view of .Hughes, and without
interference or hindrance.
20. MONTH TO MONTH TENANCY SUBORDINATE TO AGREEMENTS
WITH U.S.A. (N)
This month to month tenancy shall be subordinate to
the provisions and requirements of any existing or future agreement
between County of Orange and the United States of America
relative to the development, operation, or maintenance of the
Airport.
21. WAR OR NATIONAL EMERGENCY (M48.1S)
This Month -to- .Month Tenancy and all the provisions
hereof shall be subject to whatever right the United States
Government has affecting the control, operation, regulation,
and taking over of said Airport, or the exclusive or nonexclusive
use of the Airport by the United States during the time of war
or national emergency.
22. USE OF PUBLIC AIRPORT FACILITIES (M54.1S)
Hughes is granted the nonexclusive use of all public
Airport facilities, including, but not limited to, taxiways,
runway, aprons, navigational aids, and facilities relating
thereto for purposes of landings, takeoffs, and taxiing of
Hughes' and Hughes' tenants' aircraft. All such use shall
be in accordance with the laws of the United States of America,
the State of California, and the rules and regulations
promulgated by their authority with reference to aviation
and air navigation, and in accordance with all reasonable and
applicable rules, regulations, and ordinances of County of
Orange now in force or hereafter prescribed or promulgated
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by ordinance or by law.
23. RESERVATION OF NAVIGATIONAL EASEMENT (M56.1 S)
There is hereby reservedto County of Orange, its
successors and assigns, for the use and benefit of the public,
a right of flight for the passage of aircraft in the air space
above the surface of the premises hereby leased, together
with the right to cause in said air space such noise as may
be inherent in the operation of aircraft now known or here-
after used for navigation of, or flight in the air, using
said air space, or landing at, taking off from, or operating
.on Orange County Airport.
24. AIRCRAFT TIDEDOWNS AND AUTOMOBILE PARKING (N)
It is hereby agreed and understood by the parties
hereto that Hughes will make separate arrangements with
County of Orange's Director of Aviation for each and every
tie -down facility and automobile parking space that may be
made available to Hughes. Rental for each tie -down space
and automobile parking space will be in accordance with
Clause 5A of this Month -To -Month Tenancy.
25. INSPECTION (N)
County of Orange or its authorized representative
shall have the right at all reasonable times to inspect the
Demised Premises to determine if the provisions of this Month-
To-Month Tenancy are being complied with.
26. PERIODIC REVIEW
The County of Orange shall have the right to review
the performance of Hughes on a periodic basis which shall be of
no greater frequency than monthly, and the Orange County
Board of Supervisors may delegate such right of review to
its Director of Aviation or such other responsible Orange
19
County employee as it may choose. If after any such review, good
cause appearing by virtue of Hughes' breach of the terms or condi-
tions of this Month -to -Month Tenancy, the County of Orange may
terminate this Month -to -Month Tenancy by giving thirty (30) days'
prior written notice.
27. ADDITIONAL GROUNDS FOR TERMINATION.
This Month -to -Month Tenancy shall be subject to termina-
tion by County of Orange upon the happening of any one of the
following events:
A. The abandonment by Hughes of its conduct of
air transportation at the Airport for a period of ninety days.
B. The lawful assumption by the United States Govern-
ment or any authorized agency thereof of the operation, control,
or use of the Airport and facilities or any substantial part
or parts thereof .in such a manner as substantially to restrict
Hughes for a period of at least ninety days from operating
thereon for the .carrying of passengers, cargo, property, or the
United States air mail.
C. All rights, privileges, or interests acquired
hereunder by Hughes may, at the option of County of Orange,
following thirty days' written notice, be suspended or finally
terminated if such suspension or termination is found by
County of Orange acting in good faith and using its best
efforts to avoid such termination or suspension to be necessary
to secure federal financial aid for the development of the
Airport or for the development or promotion of aeronautical
operation thereon.
28. PREMISES CONDITION UPON TERMINATION (N),
Hughes agrees that the premises shall be left in good
condition, reasonable wear and tear and repairs which are
the obligation of County of Orange excepted.
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29. TERMINATION OF PRIOR AGREEMENTS (N)
It is mutually agreed that this Month -to -Month Tenancy
shall terminate and supersede any prior Agreements between the
parties hereto coverng all or any portion of the Demised Premises.
30. TAXES AND ASSESSMENTS (M28.1 S)
All taxes and assessments which become due and payable
upon the Demised Premises or upon fixtures, equipment, or
other property installed or constructed thereon, shall be
the full responsibility of Hughes, and Hughes shall cause
said taxes and assessments to be promptly paid.
31. UNLAWFUL USE (M 29.1 S)
Hughes agrees no improvements shall be erected,
placed upon, operated, nor maintained within the Demised
Premises, nor any business conducted or carried on thereon or
therefrom, in violation of the terms of this Month -to -Month
Tenancy or of any regulation, order of law, statute, by -law
i
or ordinance of a governmental agency having jurisdiction.
32. DISPOSITION OF ABANDONED PERSONAL PROPERTY (M32.1 S)
If Hughes abandons the Demised Premises or is dis-
possessed thereof by process of law or otherwise, title to anv
personal property belonging to Hughes and left on the Demised
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Premises 45 days after such abandonment or dispossession
shall be deemed to have been transferred to County of Orange.
County of Orange shall have the right to remove and to dispose
of such property without liability therefor to Hughes or to
any person claiming under Hughes, and shall have no need to
account therefor.
33. SUCCESSORS IN INTEREST (M36.1 S)
Unless otherwise provided in this Month -to -Month Tenancy,
the terms, covenants and conditions contained herein shall apply
to and bind the heirs, successors, executors, administrators,
21
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and assigns of all the parties hereto, all of whom shall be
jointly and severally liable hereunder.
34. COSTS OF SUSTAINING AN ACTION FOR BREACH OR DEFAULT (N)
In the event either County of Orange or Hughes
commences legal action against the other claiming abreach
or default of this Month-to-Month Tenancy, the prevailing party
in such litigation shall be entitled to recover from the other
costs of sustaining such action, including reasonable attorneys'
fees, as may be fixed by the Court.
35. COUNTY OF ORANGE'S RIGHT TO RE -ENTER (M38.1 S)
Hughes agrees to yield and peaceably deliver possession
of the Demised Premises to County of Orange on the date of ter-
mination of this Month -to -Month Tenancy, whatsoever the reason
for such termination.
Upon giving written notice of termination to Hughes,
County of Orange shall have the right to re -enter and take
possession of the Demised Premises on the date such termination
becomes effective without further notice of any kind and
without institution of summary or regular legal proceedings.
Termination of this Month -to -Month Tenancy and re -entry of
the Demised Premises by County of Orange shall in no way alter
or diminish any obligation of Hughes under this Month -to -Month
Tenancy and shall not constitute an acceptance or surrender.
Hughes waives any and all right of redemption under
any existing or future law or statute in the event of eviction
from or disposition of the Demised Premises for any reason
or in the event County of Orange re- enters and takes possession
of the Demised Premises in a lawful manner.
Hughes agrees that should the manner or method
employed by County of Orange in re- entering or taking possession
of the Demised Premises gives Hughes a cause of action for damages
22
or in f .Drcible entry and detainer, the total amount of damages
to which Hughes shall be entitled in any such action shall be
One Dollars. Hughes agrees that this clause may be filed in
any such action and that when filed, it shall be a stipulation
of Hughes fixing the total damages to which Hughes is
entitled in such an action.
36. CIRCUMSTANCES WHICH EXCUSE PERFORMANCE (N)
If either party hereto shall be delayed or prevented
from the performance of any act required hereunder by reason
of acts of God, restrictive governmental laws or regulations,
or other cause without fault and beyond the control of the
party obligated (financial liability excepted), performance
of such act shall be excused for the period of the delay;
and the period for the performance of any such act shall be
extended for a period equivalent to the period of such delay.
However, nothing in this clause shall excuse either party from
the prompt payment of any rental or other charge required of
them except as may be expressly provided elsewhere in this
Month -To -Month Tenancy.
37. AMENDMENT (N)
This Month -To -Month Tenancy sets forth the entire
agreement between County of Orange and Hughes and any modification
must be in the form of a written agreement.
38. AGREEMENT ORGANIZATION (N)
The various headings of this Month -To -Month Tenancy,
the numbers thereof, and the organization of the Month -To -Month
Tenancy into separate sections and paragraphs are for purposes
of convenience only and shall not be considered otherwise.
39. PARTIAL INVALIDITY (M45.1 S)
If any term, condition, covenant or provision of
23.
a
this Month -TO -Month Tenancy is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, the remainder
of the provisions hereof shall remain in full force and effect
and shall in no way be affected, impaired, or invalidated
thereby.
40. WAIVER OF RIGHTS (N)
The failure of County of Orange or Hughes to insist
upon strict performance of any of the terms, conditions, and
covenants in this Month -To -Month Tenancy shall not be deemed a
waiver of any right or remedy that County of Orange or Hughes
may have and shall not be deemed a waiver of any right or
remedy for a subsequent breach or default of the terms, con-
ditions, and covenants herein contained.
41. HOLDING OVER
In the event Hughes shall continue in possession
of the Demised Premises after the termination of this Month-To-
Month Tenancy such possession shall be considered in light
of the applicable facts and law.
42. NOTICES (M8.1 S)
All notices pursuant to this Month -To -Month Tenancy
shall be addressed as set forth below or as either party may
hereafter designate by written notice and shall be sent through
the United States mail.
TO: COUNTY OF ORANGE TO: HUGHES
Dept. of Real Property Services
County of Orange
400 Civic Center Drive West
Santa Ana, California 92701
and
Director of Aviation
Orange County Airport
19051 Campus Drive
Santa Ana, California 92707
24
Hughes Airwest
San Francisco
International Airport
San Francisco,
California 94128
43. TIME (N)
Time is of the essence in this Month -To -Month Tenancy.
ADDITIONAL SETTLEMENT TERMS
44. The City of Newport Beach shall not in any way, directly
or indirectly, seek to disturb Hughes' tenancy under such
Month -To -Month Tenancy prior to its termination unless it shall
have good cause to do so by virtue of Hughes' breach of any of
the terms or conditions of the Month -To -Month Tenancy hereby
established. In no event shall the City of Newport Beach be
bound by any terms of this Agreement or Month -To -Month Tenancy
after April 1, 1977.
45. As set forth in Recital F, this Settlement Agreement
is designed to provide a practical solution to the litigation
now pending. It is the position of Hughes that airport
authorities and others have no legal right to restrict commercial
jet operations in any way whatsoever, due to federal preemption
of that area and for numerous other legal.reasons. This
Settlement Agreement is being executed by Hughes without any
prejudice of any kind to its legal position, and is being
executed by the City of Newport Beach and the County of Orange
without prejudice to any position which either of them may
have with regard to Hughes' stated position or otherwise. In
the event that an Environmental Impact Report and any long -term
lease are not concluded prior to the time the Month -To -Month
Tenancy is terminated or in the event that some alternative
solution cannot be achieved, then all parties to this settlement
shall be free to assert the legal positions which they possessed
prior to entering into this Settlement Agreement, together with
any legal positions which may arise during the period this
Month -To -Month Tenancy is in existence.
25.
46. The Interim Rental Agreement, referred to in Paragraphs
C and D of this Settlement Agreement, is hereby deemed to be
supplanted by the Month -To -Month Tenancy established by this
Settlement Agreement, and the Interim Rental Agreement shall
be deemed to be void and of no further force or effect.
47. Hughes, the City of Newport Beach and the County of
Orange agree that the County of Orange shall make adequate
provision in the Environmental Impact Report presently being
formulated by the County of Orange and its contractor for
the development of adequate information for an assessment
of the environmental impact of scheduled commercial jet air
carriers, including Hughes, at Orange County Airport. All
parties hereto reserve any and all rights that they might
have to challenge the adequacy or preparation or otherwise
challenge, defend or comment upon any Environmental Impact
Report prepared or approved by the County of Orange or its
contractor.
48. The.action filed by the City of Newport Beach
referred to in Recital E shall be dismissed without prejudice
by the City of Newport Beach upon the execution of this
Settlement Agreement, Such dismissal shall in no way affect
the right or ability of any party to assert any legal position
it deems appropriate, all as provided in Paragraph 45. Each
party hereto shall bear its own costs in such litigation.
Date;
May-.20 , 1975. HUGHES AIR CORP., doing
business as HUGHES AIRWEST
(Lessee and Setting Party)
e
cretary
ATTEST:
W. E. ST. JOHN, County Clerk
of the County of Orange and
ex -offic o Clerk of the Board
of Superv'iso'rs of Orange County
By
Deputy
COUNTY OF ORANGE
APPROVED AS TO FORM: (Lessor and Settling Party)
Adrian Kuyper Chairman
County Counsel Boa of Supervisors
By
TY OF NEWPORT BEACH
i n ettlipg Party)
ATTEST: /�
Pro Tempore
APPROVED AS TO FORM
Date: w
A c -3 ly7s�
CITY ATTORNE4
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RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH AUTHORIZING THE MAYOR AND CITY CLERK
TO EXECUTE A SETTLEMENT AGREEMENT IN THE CASE OF
CITY OF NEWPORT BEACH V. COUNTY OF ORANGE (HUGHES
AIRWEST) ORANGE COUNTY SUPERIOR COURT NO. 222714
WHEREAS, there has been presented to the City Council
a Settlement Agreement in the case of City of Newport Beach v.
County of Orange (Hughes Airwest) Orange County Superior Court
No. 222714; and
WHEREAS, the City Council has reviewed said agreement
and found it to be fair and equitable and in the best interest
of the City;
NOW, THEREFORE, BE IT RESOLVED that the Mayor and
City Clerk are hereby authorized to execute the Settlement
Agreement in the case of City of Newport Beach v. County of
Orange (Hughes Airwest) Orange County Superior Court No. 222714.
ADOPTED this 27th
ATTEST:
City Clerk
day of May , 1975.
Mayor
DDO /bc
5/21/75
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