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HomeMy WebLinkAbout8149RESOLUTION NO. 8149 A RESOLUTION APPROVING AN AMENDMENT TO THE HANGAR GROUND LEASE BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND CLIFFORD HOYLE, AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, THAT: WHEREAS, the City of Pueblo, A Municipal Corporation, and Clifford Hoyle entered into a Hangar Ground Lease on December 12, 1994; and WHEREAS, both parties wish to amend the provisions of the Hangar Ground Lease; NOW, THEREFORE BE IT RESOLVED THAT, SECTION 1 A certain Amendment to the Hangar Ground Lease, 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, and Clifford Hoyle, relating to the lease of ground on Airport property for the purpose of constructing and occupying a new Hangar, is hereby approved, subject to the conditions as set forth in said Amendment. SECTION 2 The President of the City Council is hereby authorized to execute said Amendment on behalf of Pueblo, a Municipal Corporation, and the City Clerk shall affix the Seal of the City thereto and attest the same. INTRODUCED Milne 9, 19W BY Al Gurul e ATTEST: APPROVED: �S. I . �� City Clerk Presfdent o the City Council AMENDMENT TO HANGAR GROUND LEASE THIS AMENDMENT entered into this 9th day of June , 19 97 A.D. between the City of Pueblo, a municipal corporation (the "Lessor "), and Clifford Hoyle (the "Lessee "), WITNESSETH: WHEREAS, Lessor and Lessee entered into a Hangar Ground Lease dated December 12, 1994 relating to the lease of a tract of ground on Airport property for the purpose of constructing and occupying a new Hangar, approximately 70 ft. wide by 60 ft. deep in size, and WHEREAS, Lessor and Lessee are desirous of modifying the provisions of the Lease, NOW THEREFORE, in consideration of the mutual covenants contained herein, Lessor and Lessee agree as follows: 1. Section 1 of the Agreement is amended to read as follows: The Lessor hereby leases unto the Lessee and Lessee hereby leases from Lessor for the term and upon the rental and conditions hereinafter stated, the real property described in Exhibit "A ", attached hereto and made a part hereof, situated in the City of Pueblo, State of Colorado. The attached Exhibit "B" consists of a diagram of the Hangar. The term "leased premises" means and includes the real property, hangar and other improvements located on the real property. 2. Section 2A of the Agreement is amended to read as follows: The term on this Lease is for a period of twenty (20) years commencing December 12. 1994 and ending December 12, 2014 unless sooner terminated as herein provided. 3. Section 2B of the Agreement is amended to read as follows: Lessor grants unto Lessee the right and option to extend the lease term for two consecutive ten (10) year periods immediately following the original twenty (20) year lease term. Such option shall be exercised no later than one hundred eighty days before the end of the original term or the first extended term, as the case may be. Exercise of such options to extend, shall be in writing but in no event shall Lessee be entitled to exercise this option, even though such notice be timely given, unless Lessee shall have timely performed all of its obligations hereunder and not be in default hereunder. 4. Section 2C of the Agreement is deleted in its entirety. 5. Section 3A of the Agreement is amended to read as follows: Lessee shall pay rent to the Lessor for the ground lease herein granted a sum per month equal to one - twelfth (1/12) of the initial annual rent during the original term, payable in advance without notice, offset or deduction, and shall be due quarterly on the first day of each quarter at the Director of Aviation's Office. The commencement date of this lease, as set forth in paragraph 2, Term, shall be the date upon which rent begins. The initial annual rent is $ 410.00, calculated by multiplying the gross leased land area by .05 per square foot. The amount of rent the Lessee pays will be adjusted based upon the consumer price index for all urban consumers, CPI -U (all items 1982 -1984 =100). The rent shall be adjusted on the 5th, 10th, 15th, and 20th anniversary of the commencement date of this lease and each five (5) year increment of any extended term. The rent will be increased by a percentage equal to the percentage increase in the CPI -U for the preceding 5 -year period over the comparable CPI -U for the first month of said 5 -year period. Any rent overdue for more than thirty (30) days will have an additional fee added to cover extra administrative costs. The additional fee will equal ten percent (10 %) of the gross amount of all overdue rents. In the event the Lessor initiates any proceedings to collect any unpaid rent from Lessee or to enforce any other provision of this Lease, Lessee shall pay all of the Lessor's expenses in connection therewith, including reasonable attorney's fees. 6. Section 4C of the Agreement is amended to read as follows: The leased premises shall be used and occupied by Lessee as a Hangar facility for the storage of aircraft owned or leased by Lessee and for such incidental purposes directly related to such use. Lessee shall have no right to utilize the leased premises, or any improvement thereon, other than as specifically allowed under this subsection, and it is specifically understood that the leased premises shall not be used for any commercial purpose including, without limitation, an aviation fixed base operation or other commercial aviation operation or the sale of aviation fuel. 7. Section 4D of the Agreement is amended to read as follows: No aircraft service or maintenance shall be performed on the leased premises on any aircraft not owned or leased by the Lessee or Subtenant of the Lessee, provided, however, in no event shall Lessee or any Subtenant of Lessee conduct or operate an aircraft service or maintenance business on the leased premises. 8. Section 6 of the Agreement is amended to read as follows: It is hereby stipulated and agreed that the Hangar and all improvements erected and constructed on the leased premises by Lessee shall be attached to the leased premises and title to same shall remain in the Lessee while this Lease is in effect. 9. Section 7 of the Agreement is amended to read as follows: If Lessee desires to sell the Hangar and other Lessee improvements during the term of this Lease, Lessee shall first offer in writing to sell same to Lessor upon the price, terms and conditions Lessee would be willing to accept in a good faith arms - length sale to a third party (the "Offer "). Lessor shall have thirty (30) days after receipt of the Offer to accept the Offer. If Lessor does not accept the Offer in writing within said thirty (30) day period, Lessee may sell the Hangar and other Lessee improvements to a third party free of Lessor's right of first refusal granted by this section, but not at a price less than, nor upon terms and conditions more favorable than those contained in the Offer. If Lessee sells the Hangar and other Lessee improvements to Lessor, this Lease shall terminate. If Lessee sells the Hangar and other Lessee Improvements to a third party, Lessee shall remain obligated and liable under this Lease unless and until Lessee assigns this Lease pursuant to Section 16(A) hereof. 2 10. Section 10 of the Agreement is amended to read as follows: Lessee covenants and agrees to pay promptly all valid taxes and other government charges of whatever nature assessed against or applicable to the leased premises or Lessee or Lessee's property or operations on the leased premises. Lessee also covenants and agrees not to permit any mechanic's or materialman's lien to be filed against the leased premises or any part or parcel thereof by reason of any work or labor performed or materials furnished by any contractor, subcontractor, mechanic or materialman. Lessee further covenants and agrees to pay promptly when due all bills, debts and obligations incurred by it in connection with its operations on the leased premises, and not to permit the same to become delinquent and to suffer no lien, mortgage, judgment or execution to be filed against the leased premises which will be in any way an impairment of the rights of the Lessor under this Lease Agreement. 11. Section 12A of the Agreement is amended to read as follows: At all times during the term of this Lease Agreement, and of any renewal or extension hereof, Lessee agrees that it will, at its own cost and expense, provide and keep in force commercial liability insurance which includes personal injury and property damage with a combined single limit not less than $ 1,000,000. Lessee shall insure the Hangar and other improvements in an amount equal to their full insurable value. Lessee shall provide Lessor with copies showing proof of such insurance and subsequent renewals or changes as might occur during the term of this lease. With respect to any insured loss to the leased premises and property thereon, including aircraft, Lessee releases Lessor, it's officers, agents, and employees from any claim or liability Lessee may have on account of such loss and waives any right of subrogation which might otherwise exist in or occur to any person on account thereof. 12. Section 12D of the Agreement is amended to read as follows: If the Hangar or other improvements (the "Improvements ") are damaged or destroyed by fire or other casualty, Lessee shall within one hundred twenty (120) days from the occurrence of such casualty either (1) repair and restore the damaged or destroyed Improvements, (2) demolish the damaged or destroyed Improvements, restore the leased premises to their original condition, and terminate this Lease, or (3) demolish the damaged or destroyed Improvements and commence construction of replacement Improvements, and thereafter complete such construction within nine (9) months from the occurrence of such casualty. All repairs to or restoration of Improvements and /or construction of replacement Improvements shall be in compliance with applicable laws and codes, and in accordance with plans and specifications therefor approved by Lessor, which approval will not be unreasonably withheld. 13. Section 14 of the Agreement is deleted in its entirety. 14. Section 15 of the Agreement becomes Section 14 and is amended to read as follows: Holding Over Should Lessee hold over the use of or continue to occupy the leased premises after the termination or cancellation of this Lease Agreement, such holding over shall be deemed merely a tenancy for successive monthly terms upon the same conditions as provided in this Lease Agreement subject to termination upon thirty (30) days prior written notice. 15. Section 16 of the Agreement becomes Section 15. 16. Section 17 of the Agreement becomes Section 16. 17. Section 18 of the Agreement becomes Section 17 and is amended to read as follows: A. Lessee shall not assign or transfer this Lease without the prior written consent of Lessor, which consent shall not be unreasonably withheld. Any assignment or transfer without the prior written consent of Lessor shall be void. B. Lessee may sublet space in the Hangar to a Subtenant pursuant to a written sublease which shall contain among other provisions the following: (1) The sublease shall be subject to and governed by the covenants and provisions of this Hangar Ground Lease and Subtenant shall abide by all the terms and conditions thereof applicable to the leased premises and use thereof. (2) The Subtenant shall maintain and keep in force commercial liability insurance with a combined single limit not less than $1,000,000. (3) An indemnification provision substantially the same as set forth in paragraph 11 hereto. (4) The sublease shall not become effective until an executed copy thereof is delivered to the City's Department of Aviation. C. Lessor consents to Lessee assigning its leasehold estate created hereby (the "Leasehold Estate ") to a financial institution (the "Lender ") as collateral security for the repayment of a construction and /or permanent loan from Lender to Lessee for the sole and only purpose of financing the original acquisition, construction and installation of the Hangar and other improvements (the "Improvements ") (the "Loan "). For purposes of such Loan, Lessor further consents to Lessee mortgaging or otherwise encumbering its right, title and interest in the Improvements as security for the Loan (the "Mortgage "), provided, however, that at no time shall Lessor's interest and title in and to the leased premises and Improvements, if any, be or become subordinate or subject to such Loan and Mortgage. If Lessee so assigns its Leasehold Estate and mortgages or otherwise encumbers its interest in the Improvements, the Lender or any subsequent holder of the Loan may cause the Mortgage to be foreclosed in any lawful manner, or by instrument of conveyance in lieu of foreclosure, acquire Lessee's title and interest in and to the Leasehold Estate and Improvements subject to the terms, covenants and provisions of this Lease. 18. Section 19 of the Agreement becomes Section 18. 19. Section 20 of the Agreement becomes Section 19 and the title is amended as follows: Lessee's Default 4 20. Section 20A of the Agreement becomes Section 19A and is amended to read as follows: A. Any one of the following shall constitute an event of default by Lessee hereunder: (1) Failure of Lessee to pay in full all delinquent installments of rent and /or combined service fees for a period of ten (10) days after written notice and demand therefor are given by Lessor to Lessee. (2) Failure of Lessee to perform or comply with any obligations, covenant or agreement of Lessee hereunder for a period of thirty (30) days after written notice specifying such failure is given by Lessee to Lessor, except that if such obligation, covenant or agreement is not capable of being performed within said thirty (30) day period, Lessee shall not be in default if Lessee shall commence such performance within said thirty (30) day period and thereafter prosecute the same with diligence and continuity to completion. 21. Section 20B of the Agreement becomes Section 19B and is amended to read as follows: B. In the case of any event of default by Lessee, Lessor shall have the following remedy in addition to all other rights and remedies provided by law or in equity, including without limitation, damages and specific performance: (1) Terminate this Lease by one hundred twenty (120) days prior written notice given to Lessee specifying the date of termination. In the event of such termination, Lessee shall have the right during said one hundred twenty (120) day period to either: (a) remove the Hangar and other improvement of Lessee from the leased premises and restore the leased premises to their original condition; or, (b) provided Lessee has first complied with the provisions of Section 7 hereof, sell the Hangar and other improvements of Lessee and assign this Lease to a third person with the prior written consent of Lessor, which consent will not be unreasonably withheld, contingent upon such third person (1) curing and correcting all existing events of default by Lessee, and (ii) assuming and agreeing to comply with and perform all obligations, covenants and agreements of Lessee under this Lease. (2) If Lessee fails to complete either 1(a) or (b) above within said one hundred twenty (120) day period, Lessee shall vacate the leased premises, Hangar and other Lessee improvements thereon and surrender possession of same to Lessor, and, at the option of the Lessor, the Hangar and all Lessee improvements shall remain on the leased premises as the property of Lessor, or, Lessor may, at the expense of Lessee, cause the Hangar and other Lessee improvements to be removed and the leased premises restored to their original condition. 21. Section 20C of the Agreement is deleted in its entirety. 22. Section 21 of the Agreement becomes Section 20. 5 23. Section 22 of the Agreement becomes Section 21. 24. Section 23 of the Agreement becomes Section 22. 25. Section 23A of the Agreement becomes Section 22A and is amended to read as follows: The Lessor reserves the right, without any obligation on its part to do so, to develop, modify, change, improve or abandon the Pueblo Memorial Airport or any part thereof, as it may determine in its sole discretion, at any time, regardless of the desires or view of Lessee, and without interference or hindrance from Lessee or liability to Lessee. 26. Section 24 of the Agreement becomes Section 23. 27. Section 24A of the Agreement becomes Section 23A and is amended to read as follows: This Lease and all of its covenants and provisions shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors, subtenants and approved assigns. 28. The following is added to the Agreement under Section 23: C. This Lease and any amendments hereto are subject to prior approval of the Federal Aviation Administration. 29. The Agreement as modified and amended by this Amendment to the Hangar Ground Lease shall remain in full force and effect. Signed in Pueblo, Colorado the day and year first above written. [SEAL] LESSOR: CITY OF PUEBLO, A MUNICIPAL CORPORATION ATTEST: �o_ n By City C1- President d the Qfty Council LESSEE: B l� Y Clifford H yle L