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HomeMy WebLinkAbout7970RESOLUTION NO. 7970 A RESOLUTION APPROVING A LEASE AND OPERATING AGREEMENT BETWEEN THE CITY OF PUEBLO AND MARTINA A. ALGIN AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO THAT: SECTION 1 A certain Lease and Operating Agreement, a copy of which is attached hereto and made a part hereof by reference, after having been approved as to form by the City Attorney, by and between the City of Pueblo, a Municipal Corporation, as Lessor, and Martina A. Algin, as Lessee, relating to a Lease for the operation of the Dining Room, Bar, Kitchen, and Storage Space, located in the Terminal Building at the Pueblo Memorial Airport, be and the same is hereby approved, subject to the conditions as set forth in said Lease and Operating Agreement. SECTION 2 The President of the City Council is hereby authorized to execute said Lease and Operating Agreement on behalf of the City of Pueblo, a Municipal Corporation, and the City Clerk shall affix the Seal of the City thereto and attest the same. SECTION 3 All net proceeds derived from said Lease and Operating Agreement will be used for the operation, maintenance, and improvement of the Airport. INTRODUCED September 23, 1996 BY: Charles Jones Councilperson ATTEST: APPROVED: Cit Jerk Presid t of the City Council Pueblo Memorial Airport Restaurant Lease and Operating Agreement THIS LEASE made and entered into this 23rd day of September , 19 between THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, hereinafter referred to as the "LESSOR" and Martina A. Algin hereinafter referred to as the "LESSEE ". WITNESSETH: That in consideration of the payment of rent hereinafter provided and the keeping and performance of the covenants and agreements of the Lessee, as hereinafter set forth, Lessor has and does hereby lease unto the Lessee, a certain area in the Terminal Building located at Pueblo Memorial Airport, Pueblo County, Colorado (herein "AIRPORT") described in Exhibit A attached hereto and incorporated herein as if set out in full (herein "Property" or "Leased Premises ") for the sole purpose of conducting a restaurant business therein for a term of 5 years from October 7. 1996 to October 6, 2001 If not in default under this Lease, Lessee shall have the option to extend the term of this Lease for a 5 year period from October 7. 2001 to October 6. 2006 by giving to Lessor written notice of its exercise of such option on or before July 7, 2001 The extended term shall be upon the same covenants and conditions except (a) there shall be no further option to extend this Lease, and (b) the rent during the extended term shall be negotiated on a percent of gross revenues at the time of renewal. If Lessee does not timely exercise its option to renew, or if Lessor and Lessee are unable for any reason to mutually agree upon the rent for the extended term, the option to renew shall terminate and be of no further force and effect. Prior to the expiration of the initial term, hundred eighty (180) days written notice be forfeited. I. DEFINITIONS A. DIRECTOR OF AVIATION this lease can be terminated by either party by giving one . If notice is by Lessee, any deposits held by Lessor shall Person in charge of the Airport for the Lessor, his assistant or duly authorized agent. B. GROSS REVENUES 2. As used herein, the term "Gross Revenues" shall mean and include all money or other things of value received by or paid to Lessee, or to others for Lessee's use and benefit, or to Lessee's sublessees, subcontractors and concessionaires, and all credit extended by lessee or said other persons (regardless of whether collection is made) in connection with any and all business conducted by Lessee or said other persons in, about, or from the Leased Premises, including (but without in any wise limiting the foregoing), the sale of food, beverages, or merchandise of whatever kind and character for which any compensation is received or is payable, whether such sales or services are made, performed, or furnished on the Leased Premises or elsewhere or by vending machines or other mechanical devices or otherwise; provided, however, that in the computation of Gross Revenues the following shall be excluded to -wit: ME a. Sales or use taxes on the sale, performance or furnishing of any service or merchandise which are by law required to be imposed on and paid by the consumers thereof and are required to be separately stated. b. Meals to employees of Lessee when such are part of the compensation given by Lessee to such employees for services rendered in and about the Leased Premises. C. Sales of Lessee's furniture, furnishings, fixtures, and other improvements to or from the Leased Premises or to or from any other premises of Lessee. d. Federal entertainment taxes on the furnishing of any entertainment where such taxes are by Federal law required to be imposed on and paid by the customers to whom such entertainment is provided and are required to be separately stated. e. Gratuities or "tips" paid to employees if such gratuities or tips are not received by such employees for the benefit of Lessee or required to be paid by such employees to the Lessee. RIGHTS AND PRIVILEGES OF LESSEE A. Lessee shall engage in and conduct said Restaurant business at and on the Property for the convenience of patrons and tenants of the Airport and the general public desiring such services at the Airport; which right, without limiting the generality hereof, shall include: 1. The right, subject to necessary licensing, to serve food, soft drinks, and alcoholic beverages, and other items pertaining to the operation of a restaurant. The right to sell tobacco products, ice cream products, gum, candies, and similar items commonly offered for sale at a restaurant. 2. The non - exclusive right to provide in- flight food service to scheduled and supplemental airlines, private and executive aircraft who have requested said services of Lessee, and the right to prepare food on the Property and deliver, or cause to be delivered, to and for the purpose of consumption elsewhere. 3. The right to use, operate, and maintain equipment owned by Lessor and shown in Exhibit C attached hereto and made a part hereof ( "Equipment "). 4. The right to equip, install, operate and maintain on the Airport, at Lessee's expense advertising facilities; provided however, that in all cases the number, size, location, general type and design, and the method of installation shall be subject to the prior approval of the Director of Aviation. This limitation shall apply to and include all signs, placards, posters, or other forms of identification or advertising media, installed, placed upon or affixed to the Property exclusively to Lessee hereunder. 5. The right, subject to prior approval of the Director of Aviation, of plans and specifications, location and inspection of same; to make improvements, modifications, revisions and other alterations to the Property. Costs of such improvements, modifications, revisions and alterations shall be borne solely by Lessee, and all such improvements, modifications, revisions or alterations shall become and remain the property of the Lessor. -2- 6. Lessee, its employees and invitees shall have the right of ingress and egress between the main entrance of the Airport as the same now exists or may hereafter be relocated and the Leased Premises over, upon and through such streets and no other as from time to time shall be designated by the Director of Aviation. Driveways from existing streets into the Leased Premises shall be located as designated by the Director of Aviation. II. RIGHTS AND PRIVILEGES OF LESSOR A. All rights not herein specifically granted to the Lessee are reserved to Lessor. B. Lessor also reserves the right to require Lessee to make any adjustments deemed necessary to improve the interior appearance of the Leased Premises or the quality of service rendered in connection with Lessee's operation. III. OBLIGATIONS OF LESSEE A. It shall be the obligation of Lessee to continuously operate and conduct the restaurant business as herein set forth in a first class manner, and to maintain the Property at all times in a safe, clean, orderly and attractive condition. B. Lessee, its officers, employees, agents or servants shall, at all times, comply with the Federal Pure Food and Drug Laws, Health Rules and Regulations and other applicable Laws and Regulations of the United States Government, and the State of Colorado and all applicable Ordinances, Codes and Regulations of the City and County of Pueblo, including the rules and regulations governing the operation of the Airport. C. All food, beverages, confections and other items sold and kept for sale by Lessee shall be of high quality, wholesome and pure and the service shall be prompt, attractive, clean, efficient and courteous. Violation of any provision of this paragraph by Lessee, its officers, employees, agents or servants shall cause this Lease to be subject to cancellation by Lessor, if not corrected immediately upon written notice by the Director of Aviation. D. Except as otherwise specifically provided herein, Lessee shall pay all costs of operating the restaurant business and maintaining the Property, including without restriction because of enumeration, necessary personnel, all licenses, permits or other similar authorizations as required under Federal, State or Local Laws and Regulations, insofar as they are necessary to comply with the requirements of this Lease and the rights and privileges extended against its property, situated on, or within, the Leased Premises or otherwise within the confines of the Airport. E. Lessee shall, at its sole expense, maintain and keep the Leased Premises, and all improvements thereon, including without limitation, the kitchen equipment, sewer and water lines and connections, in good condition, appearance, and state of repair and provide all interior building maintenance and custodial service for the Leased Premises. It being expressly understood and agreed that Lessor shall not be responsible for any defect in the Leased Premises or improvements thereon or obligated to make any repair, except for exterior maintenance and repairs to the exterior of the Property. 1. If Lessee should fail to keep and maintain the Leased Premises or improvements thereon in such good order and repair as is reasonably required, Lessor may, without -3- any obligation to do so, enter the Leased Premises, without such entering causing or constituting a termination of the Lease, or an interference with the possession of the Leased Premises by Lessee, and perform the necessary maintenance and /or restoration work to the Leased Premises to the condition required by the Lessor, the cost of which shall be borne solely by Lessee. All such costs shall be paid by Lessee to Lessor in addition to rents, within thirty (30) days after completion of the work. F. The Lessee shall, at its own expense, keep the Leased Premises neat, clean, safe and orderly at all times, free of waste, rubbish and debris, and shall provide a complete and proper arrangement for the sanitary handling and disposal of all trash, garbage, and other refuse resulting from its activities at the Airport. All trash, garbage, and other refuse shall be out of view of the public. G. Lessee shall pay all utilities supplied to and used in the Leased Premises, and shall enter into separate agreements with the utility organizations for metering such services; except that the Lessor shall furnish at its expense water and sewer services for the Leased Premises. H. Lessee shall at all times retain an active, qualified, experienced and competent manager to supervise the restaurant business who shall be authorized to represent and to act for and on behalf of the Lessee. 1. Lessee's personnel shall be courteous, efficient, clean and neat in appearance, and shall be trained and qualified to perform any and all services to the public required or contemplated under the terms of this Lease. 2. Lessee shall not employ any person or persons in or about the Leased Premises who shall use improper language, or act in a loud, boisterous, or otherwise improper manner. Lessee, except as may be otherwise provided in other contracts entered into with the Lessor, shall not engage in any business at the Airport other than that which is expressly authorized herein. J. Lessee shall repair all damages to the Leased Premises caused by its officers, employees, invitees, agents or patrons or arising out of Lessee's operations thereon. K. Period of Restaurant operation: 1. Except as herein set forth, the dining room area of the Restaurant shall remain open for service to the public seven (7) days per week during the hours of 6:00 a.m. to 9:00 p.m., with adequate service to meet the public demand. The Director of Aviation may allow the change of operating hours. The Director of Aviation may also allow the closure of the Restaurant during construction modifications. 2. Alcoholic beverages shall be available to the public during dining room hours of operation; except, that the hours of the sale of alcoholic beverages shall be subject to Regulations as provided by the Statutes of the State of Colorado and Local Ordinances, Rules and Regulations, whichever may apply to the Premises under the Agreement. -4- 3. Any change in the minimum hours or days of operation of the Restaurant is prohibited without the prior approval of the Director of Aviation. IV. OBLIGATIONS OF LESSOR A. Lessor, at its cost, shall provide water and sewer services for the Leased Premises, unless conditions beyond the Lessor's control shall prevent Lessor from so supplying such water and sewer services. B. Lessor shall provide periodic washing of windows on the outside only. C. Lessor shall not be responsible for any damage to, or loss of property of Lessee, its officers, employees, agents, servants, patrons, or any other person or persons at the Airport. V. RENTALS AND FEES A. Lessee agrees to pay to the Lessor, without offset or deduction, at such places as the Lessor may designate from time to time, for the use of the premises, facilities, concession rights and privileges, a monthly rent of 7.5% of monthly gross revenue or $1,000.00 whichever is greater. 1. Rent during the renewal term is to be negotiated. B. Lessee shall make a monthly report of all gross revenues to the Lessor at such places as may from time to time be designated by Lessor, on a form or forms approved by the Director of Aviation. Said report to be used as the basis for computation of rents. Said report shall be submitted no later than the tenth (10th) day of each month for the preceding month, and all rents shall be paid no later than the fifteenth (15th) day of the following month. C. Lessee shall keep and maintain at the Leased Premises accurate and complete books and records of its Restaurant operation and gross receipts. Lessee shall permit the duly authorized representative of the Lessor to examine Lessee's books at any time during business hours. VI. The Lessee by accepting this Lease expressly agrees for itself, its successors and assignees that it will not make use of the Leased Premises in any manner which might interfere with the landing and taking -off of aircraft from Pueblo Memorial Airport or otherwise constitute a hazard to aviation. In the event the aforesaid covenant is breached, the Lessor reserves the right to enter upon the Leased Premises and cause the abatement of such interference at the expense of the Lessee. VII. Lessor and Lessee understand and agree that the General Provisions consisting of Paragraph 1 though 18, attached hereto as Exhibit B are incorporated herein and shall be binding upon and inure to the benefit of Lessor and Lessee as if set out herein full, except that Lessee shall maintain at its expense, comprehensive general, liability, products liability, and property damage insurance with limits of not less than $1,000,000 per occurrence rather than $500,000 per occurrence as provided in Paragraph 9 of the General Conditions. In the event of a conflict between the provisions of the General Provisions and this Lease, the provisions of this Lease shall control -5- VIII. If Lessee defaults in the payment of rent or any part thereof or fails to perform or observe any of the conditions and covenants on its part to be performed or observed hereunder, and such default or failure shall continue for a period of ten (10) days after written notice thereof has been mailed to Lessee by first class mail addressed to Lessee at its last known address at Pueblo Memorial Airport, then, in that event , and as often as same may happen, it shall be lawful for City, at its election, with or without notice, to terminate this Lease without prejudice to any claim for rent or for breach of covenants, or without being guilty of trespass or forcible entry or detainer. City is hereby granted a lien and security interest for payment of rent and damages for breach of covenants upon all Lessee's goods and personal property which is or may by placed upon the Property including without limitation business fixtures, equipment, inventory and proceeds thereof and such lien may be enforced by the taking and sale of such property in the same manner and as provided for the disposition of collateral under the Colorado Uniform Commercial Code. IX. If the Property is left vacant and any part of the rent remains due and unpaid, City may, without being obligated to do so, and without terminating this Lease, retake possession of the Property and rent the same for such rent and upon such terms as City may think best, making such changes and repairs as may be required, giving credit for the amount of rent received less all expenses of such changes and repairs, and Lessee shall be liable for the balance of the rent until expiration of this Lease. X. Lessee agrees to pay to City all costs, including reasonable Attorney Fees, of any action brought by City to enforce the Lease or to recover rent or other money due and unpaid under the Lease or to recover possession of the Property, whether such action proceeds to judgement or not. XI. No waiver of any breach of any one or more of the conditions or covenants of this Lease by City shall be deemed to imply or constitute a waiver of any succeeding or other breach hereunder. The acceptance of rent by City shall not constitute a waiver of any breach then existing. XII. If Lessee remains in possession of the Property after termination of the Lease without written agreement, such possession shall be deemed to be a tenancy from month to month upon the same covenants and conditions set forth herein and at a monthly rental equal to two times the average of the monthly rent payable hereunder for the prior twelve months. XIII. In the event of a fire or other casualty in or to the Leased Premises, Lessee shall immediately give notice to Lessor. If the Leased Premises, through no fault nor neglect of Lessee, its agents, employees or invitees, shall be damaged by fire or other casualty so as to render the Leased Premises untenantable, and Lessor elects to repair the same, the rent herein shall abate thereafter until such time as the Leased Premises are made tenantable by Lessor. In the event the Leased Premises or the Terminal Building shall be damaged by fire or other casualty and Lessor shall decide not to rebuild or repair (which decision Lessor may make in its sole discretion) then all rent owed up to the time of such damage shall be paid by Lessee and this Lease shall terminate. XIV. Lessee will on or before October 7, 1998, at Lessee's sole cost and expense, cause the patio area adjacent to the Leased Premises to be enclosed in accordance with plans and specifications approved by Lessor and all applicable laws and building codes. All such improvements shall be and remain the property of Lessor. -6- IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of this day and year. DATED THIS 23rd day of September , 1996. Attest: City Clerk APPROVED AS TO FORM: _ -1 - 1 City Attorn y PUEBLO, A MUNICIPAL CORPORATION B 4 N • Presi ent of the City Council LESSEE: Martina A. Algin -7- Exhibit B General Provisions 1. This Lease is subject and subordinate to the provisions of any existing or future agreement between the City and the United States Government or any agency thereof relating to the operation or maintenance of the Pueblo Memorial Airport. The United States Government has reserved the right of immediate re -entry in, to and upon the Pueblo Memorial Airport including the Property in the event of a National Emergency. If such a right is exercised, the Lease shall terminate and Lessee shall immediately quit and vacate the Property and remove all its property and equipment therefrom. If the Lease is so terminated, neither City nor Lessee shall be liable or responsible to the other party for any damages or account of any covenants of the Lease or herein otherwise contained. 2. The terms and provisions of the Lease and these General Provisions are subject to the provisions of Chapter 1 of Title III of the 1971 Code of Ordinances by the City in effect at the time of execution of the Lease or as same may be hereafter amended. In the event of a conflict between the provisions of said Chapter 1 of Title III and any provision of the Lease or these General Provisions, the provisions of said Chapter 1 of Title III shall control. 3. City reserves for the use and benefit of the public, a right of flight for the passage of aircraft above the surface of the property, together with the right to cause in said airspace such noise as may be inherent in the operation of any aircraft now known or hereafter used, for navigation of or flight in said airspace, and for use of said airspace for landing on, taking off from, or operation on or over the Pueblo Memorial Airport. 4. City reserves the right, without any obligation on its part to do so, to maintain and keep in repair the landing area of the airport or other public areas or facilities and to develop, modify, change, relocate, abandon or improve the Pueblo Memorial Airport, or any part thereof, as it may determine, in its sole and absolute discretion, at any time. Lessee hereby releases and forever discharges City from any and all damages or injuries resulting from or occasioned by any such actions taken or omitted to be taken by the City. 5. Lessee in performing its operations or providing services under the Lease shall: a. furnish good, prompt, and efficient services. b. operate and furnish services on a fair, equal, and nondiscriminatory basis to all users thereof. C. charge fair, equal, reasonable and nondiscriminatory prices for each unit of sale or service, including parts, materials, and supplies, provided Lessee may be permitted to make reasonable and nondiscriminatory discounts, rebates or other similar type of price reductions to quantity purchases. 6. The Lessee, as a part of the consideration hereof does hereby further covenant and agree, as a covenant running with the property, that in the event facilities are constructed, maintained, or otherwise operated on the Property for a purpose for which a Department of Transportation program or activity is extended or for another purpose involving the provisions of similar services or benefits, the Lessee shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally - Assisted Programs of the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964, and as such Regulations may be amended (herein "Regulations "). The Lessee does further hereby covenant and agree, as a covenant running with the Property, that: a. no person on the grounds of race, color, national origin, age, or disability shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of the Property. b. that in the construction of any improvement on, over, or under the Property and the furnishing of service thereon, no person on the grounds of race, color, national origin, age, or disability shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination. C. the Lessee shall use the Property in compliance with all other applicable requirements imposed by or pursuant to the Regulations. That in the event of breach of any of the above nondiscrimination covenants, the City shall have the right to terminate the Lease and to re -enter and repossess the Property and the facilities thereon, and hold the same as if the Lease had never been made or issued. 7. Lessee, its officers, agents and employees shall faithfully observe all rules and regulations affecting the use of the Pueblo Memorial Airport or motor vehicles thereon or the use and occupancy of the Property, whether established by the Director of Aviation, the City, the State of Colorado, or the United States or agencies thereof and Lessee's use and occupancy of the Property and improvements thereon are subject to all ordinances of the City located within the jurisdictional limits of the City. 8. Lessee shall indemnify and save harmless the City, its officers, agents, and employees from and against any and all claims, demands, actions, suits and expenses (including reasonable attorney fees) of any nature including those based upon injury to persons including death, or damage to property, including loss of use, arising out of, caused by, or sustained by the acts or omissions of Lessee, its officers, agents, or employees, or in connection with the performance of the Lease, or by conditions created thereby, or by conditions of the Property, or based upon any violation of any statute, ordinance, or regulation, except those caused by the negligence of the City, its officers, agents or employees. 9. Lessee shall maintain at its expense during the effective period of the Lease: a. comprehensive general liability, products liability, and property damage insurance against liability for injuries to or death of any person for damage to or loss of property with limits not less than $500,000 combined single limit per occurrence. b. workmen's compensation insurance with policy provisions as required by Colorado State Law. Lessee shall furnish to the City a certificate from an insurance company acceptable to the City certifying such insurance to be in force during the effective term of the Lease. All such insurance shall provide for a minimum of ten (10) days notice to the City in the event of cancellation or material change in the terms thereof. The City reserves the right to reasonably increase the minimum insurance limits set forth in (a) above. 10. The Lease and these General Provisions are intended as the complete integration of all understandings and agreements between the parties. No prior or contemporaneous addition, deletion, or other amendment shall have any force or effect whatsoever unless specifically included in the Lease. No subsequent renovation, renewal, addition, deletion, or other amendment to the Lease or hereto shall have any force or effect unless embodied in a written agreement and approved by Resolution or Ordinance of the City Council of the City. 11. Lessee shall not assign or otherwise transfer the Lease or any of Lessee's interest therein or sublease the Property or any portion thereof without the prior written consent of the City. If Lessee is a corporation or partnership, a majority interest in the partnership shall not be sold or otherwise transferred without the prior written consent of the City. Any such assignment, transfer or sublease made without prior written consent of the City shall be void and ineffective as to the City and shall constitute grounds to terminate the Lease. 12. In case any one or more of the provisions contained herein or in the Lease shall be invalid, illegal or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein or in the Lease shall not be affected or impaired thereby. 13. Whenever in the Lease or in these General Provisions any of the Parties hereto is named or referred to, the successors and assignees of such party shall be deemed to be included and all the covenants, promises and agreements contained herein or in the Lease by or on behalf of the Lessee, or by and on behalf of the City, shall bind and inure to the benefit of the respective successor and assignees, whether so expressed or not. 14. It is the intention of the parties hereto that the Lease and these General Provisions and the rights and obligations of the parties hereunder shall be governed by and construed and enforced in accordance with the laws of the State of Colorado. 15. Lessee shall at its expense, throughout the term of this Lease, maintain and keep in force the following insurance: Contractual liability insurance to insure the performance by Lessee of the indemnification agreement of paragraph (8) hereof. All such insurance shall provide for a minimum of ten (10) days notice to the City in the event of cancellation, non - renewal or material modification. Lessee shall provide the City with certificates of such insurance. 16. Neither the City nor Lessee shall be liable to the other for any business interruption or any loss or damage to property or injury to or death of persons occurring on the Airport, or in any manner growing out of or connected with the Lessee's use and occupancy of the Property or the condition thereof, whether or not caused by the negligence or other fault of City or Lessee, or their respective officers, agents or employees. This release shall apply to the extent such business interruption, loss, or damage to property or injury to or death of persons is covered by insurance regardless of whether such insurance is payable to or protects the City or Lessee or both. Nothing herein shall be construed to impose any other greater liability upon either City or Lessee than would have existed in the absence of this provision. This release shall be in effect so long as the applicable insurance policies contain a clause to the effect that this release shall not affect the right of the insured to recover under such policies. Such clauses shall be obtained by the parties whenever possible. The release in favor of City contained herein, is in addition to, and not in substitution for, or in diminution of the hold harmless and indemnification provisions hereof. 17. The Lease and any amendment or modification thereto are subject to the prior written approval of the Federal Aviation Administration. Lessee agrees to comply with notification and review requirements of construction, modification, or alteration of any building or structure on the Property. -1v-