HomeMy WebLinkAbout10361RESOLUTION NO. 10361
A RESOLUTION APPROVING A HANGAR GROUND LEASE AGREEMENT BETWEEN THE CITY
OF PUEBLO, A MUNICIPAL CORPORATION, AND JOHN BARGER, AND AUTHORIZING THE
PRESIDENT OF CITY COUNCIL TO EXECUTE SAME
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
A certain Lease 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, and John Barger, is hereby approved, subject to the conditions
as set forth in said Lease Agreement.
SECTION 2.
The President of City Council is hereby authorized to execute said Lease 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.
INTRODUCED April 11, 2005
BY Jeff Chostner
Councilperson
APPROVED:
PRES1DENT 9F CITY CPWCIL
ATTESTED BY:
CITY CLERK
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Background Paper for Proposed
RESOLUTION
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AGENDA ITEM # y
DATE: April 11, 2005
DEPARTMENT: AVIATION - DANIEL E. CENTA, P.E.
TITLE
A RESOLUTION APPROVING A HANGAR GROUND LEASE AGREEMENT
BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND JOHN
BARGER, AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO
EXECUTE SAME
ISSUE
Should City Council approve a hangar ground lease between the City and John Barger.
RECOMMENDATION
Approval of this Resolution.
BACKGROUND
John Barger would like to lease approximately 6,045 square feet of land at the Airport to
construct a hangar. The lease term is for 20 years with an option to extend for 2
consecutive 10 -year periods.
FINANCIAL IMPACT
The land rent will be $.10 per square foot annually for a total of $604.50 per year. A
combined service fee of $499.92 per acre annually will also be charged.
HANGAR GROUND LEASE
THIS LEASE made and entered into as of April 11, 2005 A.D. between the City of Pueblo, a
municipal corporation, "Lessor", and John Barger "Lessee."
WPTNESSETH:
WHEREAS, the Lessor is the owner and operator of the Pueblo Memorial Airport ( "Airport"),
together with the land on which said Airport is situated, and
WHEREAS, Lessee is desirous of leasing a tract of ground on said Airport property for the purpose
of constructing and occupying a new Hangar, of approximately 6.045 square feet,
NOW THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as
follows:
1. Land Parcel
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 shown on Exhibit
"A ", attached hereto and made a part hereof, situated in the County of Pueblo, State of
Colorado subject to existing easements. The attached Exhibit "A" also consists of a plot plan
and diagram of the Hangar. The term "leased premises" means and includes the real property,
hangar and other improvements located on the real property.
2. Term
A. The initial term on this Lease is for a period of twenty (20) years commencing
April 11, 2005 ( "commencement date ") and ending April 10, 2025 unless sooner
terminated or extended as herein provided.
B. Lessor grants unto Lessee the right and option to extend the lease term for two (2)
consecutive ten (10) year periods immediately following the original twenty (20) year
lease term. Such options may be exercised at any time at the discretion of Lessee;
however, such option to extend 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.
C. All conditions and covenants contained herein shall remain in full force and effect
during any and all extension periods.
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3. Rental Rate and Other Fees
A. 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 monthly on
the tenth day of each month 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 shall be calculated by multiplying the
gross leased land area by $.10 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 or decreased by a
percentage equal to the percentage increase or decrease 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. Venue for any such proceeding shall be in
Pueblo County, Colorado.
B. Lessee shall pay combined service fee for services and facilities now furnished by the
Lessor at the Pueblo Memorial Airport, namely: public street maintenance, fire
protection and Street lighting based upon the amount established by Lessor which is
currently $499.92 per acre per year. The Lessor may, from time to time, reduce, alter,
or eliminate any or all of the services or facilities presently being furnished and may
modify, increase, or decrease the annual combined service fee therefore and the
manner by which it is calculated., including making separate charges, therefore,
provided (1) such services and fee shall be nondiscriminatory among other tenants
and owners of land at Pueblo Memorial Airport receiving such services and facilities
then being furnished and (2) such fee shall be reasonable in relation to the Lessor's
actual cost and expense of furnishing the services and facilities then being furnished
The Lessor's cost may include the cost of capital improvements amortized over the
useful life of the improvements. Only domestic wastewater shall be discharged from
the leased premises to Lessor's sanitary sewer system. Lessee shall be subject to the
same restrictions, conditions, fees and charges as other users of Lessor's sanitary
sewer system.
C. For services and activities authorized to be performed within the Hangar on the
leased premises pursuant to Section 4.I., Lessee shall pay as additional rent one
percent (1%) of the monthly gross revenues derived from all sales, operations and
services made, furnished or conducted on or from the leased premises except
revenues from Hangar rentals. Such additional rent shall be paid monthly without
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notice, offset or deduction on or before the tenth (10 of the following month at the
Director of Aviation's office and shall be accompanied with such reporting forms as
the Director of Aviation shall determine. Lessor shall have the right to examine and
audit Lessee's and its subtenant's books and records to determine the accuracy of the
additional rent.
D. All unpaid rent and other charges shall accrue interest at the rate of ten (10) percent
per annum.
4. Improvements and Use
A. Lessee, at its sole cost and expense, shall cause to be constructed and installed upon
the leased premises the Hangar and other improvements in accordance with plans and
specifications approved by Lessor including architectural approval, which consent
will not be unreasonably withheld or arbitrarily delayed. The Hangar and other
improvements shall be constructed in a good and workmanlike manner in accordance
with the applicable laws, ordinances and building codes and pursuant to a building
permit issued by the Regional Building Department. Lessee shall diligently take all
action reasonably required and appropriate to (1) commence construction and
installation of the Hangar and other improvements within six (6) months from
commencement date, and (2) complete such construction and installation within nine
(9) months from commencement date. If by reason of delays in obtaining
construction permits or approvals from the Federal Aviation Administration or other
governmental authorities after Lessee's diligent and good faith efforts to obtain such
permits or approvals, Lessee is prevented from commencement or completion of
construction within the time limits herein specified, such time limits shall be
extended by a period equal to such delays, but in no event longer than ninety (90)
days.
B. In addition to constructing the Hangar and improvements, Lessee shall cause all
utilities to be used by Lessee to be extended underground to the leased premises
within easements and locations to be designated by Lessor and the Lessee shall be
responsible for constructing and maintaining a concrete ramp area in front of the
Hangar in accordance with plans and specifications approved by Lessor. This
concrete ramp area must be designed for a minimum weight bearing capacity of
12,500 pounds for single wheel aircraft and must be built to the width of the Hangar
door opening, less the area required for the Hangar. Should development take place
adjacent to the leased premises, the Director of Aviation at his sole discretion may
require Lessee to pave sections of the leased premises to the full width of the leased
premises. This concrete area must be built so as to connect onto any adjacent ramp,
taxiway, or other paved areas in order that a continuous and safe pavement section
results. It is the responsibility of the Lessee to maintain the entire ramp area in a
manner, which is safe and clean of debris so as not to cause danger or unsafe
conditions for taxiing aircraft and airport users.
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C. The leased premises shall be used and occupied by Lessee or its subtenants as a
Hangar facility for the storage of aircraft and for such incidental purposes directly
related to such use including storage of aircraft equipment and office space. 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 for the sale of aviation fuel.
D. 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.
E. Lessee grants to the Lessor the right to enter the leased premises to do what is
necessary for the purposes of repairing, replacing and/or maintaining any and all
utility lines under the leased premises which serve other uses at the Pueblo Memorial
Airport, it being understood that the Lessor will repair, in a good and workmanlike
fashion, any and all damage done to the leased premises as the result of work done
hereunder.
F. Lessee shall maintain the leased premises in accordance with the requirements and
regulations of the Lessor and Lessor's fire code. The Lessee shall be responsible for
all costs, fees, charges and penalties associated with the discharge or release of any
hazardous material (including petroleum products) or mitigating the containment or
removal of any contamination or hazardous material (including petroleum products)
on, over or under the leased premises which is caused by the Lessee, its officers,
agents, or employees. It is understood that the Lessee is not responsible for any
conditions, which may be determined to have existed prior to the commencement
date of this lease. The storage and accumulation of aviation fuel, flammables,
explosive liquids, or solids, waste, debris or other hazardous materials within or on
the leased premises shall be in an environmentally sound manner and comply with all
Federal, State and Local laws and regulations.
G. Lessee will not modify, alter, paint or improve the completed Hangar except to the
extent required to maintain its original state. Any additional modification, painting or
improvements to the Hangar or leased premises must receive prior written approval
from the Lessor, which approval shall not be unreasonably or arbitrarily denied or
withheld.
H. Lessee shall not park or leave or allow to be parked or left aircraft on the taxiways or
on pavement adjacent to the Hangar in a manner which interferes with or obstructs
access to adjacent hangars or public ramp area. Parking of automobiles will be
permitted only in paved designated parking areas or within the Hangar.
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I. Notwithstanding the limitations set forth in subsections C. and D. above, with the
prior written approval of Lessor's Director of Aviation, the following activities may
be conducted within the Hangars located on the leased premises, provided that no
such activity will unreasonably interfere as determined by the Director of Aviation
with the use of taxiways and aprons or the activities of other tenants of land of the
Airport: aircraft sales and office, aircraft engine and overhaul shop, flight training,
aircraft parts sales, aircraft charter services, air photography, aircraft interior repair
shop, aircraft inspection, and aircraft general maintenance. Subject to the foregoing,
the approval of the Director of Aviation will not be arbitrarily or unreasonably
withheld, delayed, or denied.
5. Maintenance Oblieations
Lessee, at its expense, shall keep the leased premises and utilities extended to the leased
premises in good repair and condition, and in a safe, sanitary, orderly, and sightly condition.
6. Utility Cost Recovery
A. If Lessee connects to an existing utility installed or constructed by or through the City
or another Lessee at the Airport ( "Utility Installer") to serve the Leased Premises,
Lessee shall pay to the Utility Installer an amount equal to the Lessee's proportionate
share of the cost of such utility as determined by the Director of Aviation ( "Cost
Recovery"). The Director of Aviation shall establish a reasonable formula or
methodology for apportionment of such costs and establishing Cost Recovery. In
order to be eligible for Cost Recovery, the Utility Installer shall submit to the
Director of Aviation detailed cost and payment information evidencing the cost of
constructing and installing the utility, including paid invoices and professional fees
for engineering or survey work with respect to such utility. City will administer the
collection and reimbursement of Cost Recovery, however, if for any reason the Cost
Recovery is not paid, City shall not be responsible or liable therefor.
B. If Lessee extends a utility to serve the Leased Premises, the Director of Aviation shall
designate its location and the size of such utility shall be as provided in C. below.
All utility extensions shall be installed underground. Lessee shall furnish City with
an appropriate survey showing the location of the utility as installed. If such utility
extension is of sufficient size and location so that such utility extension may serve
other property at the Airport as determined by the Director of Aviation, connections
to such utility extension may be authorized and approved by the Director of Aviation,
and, if eligible for Cost Recovery, Lessee shall be paid Cost Recovery determined as
provided in A. above.
C. Sanitary sewer extension lines shall be a minimum of eight (8) inches or in such
larger size as determined by the Director of Wastewater. All other utilities will be
sized in accordance with the utility service provider's standards.
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D. The Utility Installer shall be responsible for the maintenance, repair and replacement
of the utility and/or utility extension, and the cost and expense thereof shall be
proportionately paid and shared among the Utility Installer and each Lessee or other
party connecting thereto.
7. Title to Improvements
The Hangar to be constructed or erected on the leased premises by Lessee shall be deemed to
be removable trade fixtures and title to same shall remain in the Lessee while this lease is in
effect. Upon termination of this lease, Lessee shall remove the Hangar and restore the leased
premises to their original condition.
8. Right of First Refusal
If Lessee desires to sell the Hangar and other Lessee improvements in whole or in part 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 specifically otherwise agreed by Lessor.
9. Signs
Lessee shall not erect, paint or maintain any signs whatsoever upon the leased premises
without first securing the written consent of the Lessor. Any such signs shall comply with all
ordinances and regulations of the Lessor or standards which might be developed by the
Department of Aviation. Only one identification sign, logo, or name may be permitted on the
exterior of the Hangar.
10. Right of Inspection
The Lessor reserves and retains for its officers, employees and authorized representatives the
right to enter the leased premises during reasonable business hours, and after prior notice, for
the purpose of inspecting and protecting the leased premises, and of doing any and all things
which the Lessor may deem necessary for the proper general conduct and operation of the
Pueblo Memorial Airport, and in the exercise of the Lessor's police power.
11. Taxes and Licenses
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
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property or operations on the leased premises. Lessee also covenants and agrees not to permit
any mechanic's or material man'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 material man. 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.
12. Indemnification
Lessee assumes the risk of loss or damage to the leased premises and property thereon,
whether from windstorm, fire, earthquake, snow, water run -off, or any other causes
whatsoever. Lessee covenants and agrees that it will indemnify and save harmless Lessor, its
officers, agents and employees from all demands, claims, costs, causes of action or
judgments, and from all expenses incurred by Lessor, in investigating or resisting the same,
including reasonable attorney fees, arising from or growing out of the negligent acts or
omissions of Lessee, its contractors, agents, members, stockholders, employees, invitees,
servants, subtenants, successors or assigns in connection with its use or occupancy or their
use or occupancy of any portion of the Pueblo Memorial Airport, including the leased
premises. The provisions of this Paragraph 11 and Paragraph 4(F) shall survive the
termination of this Lease Agreement.
13. Insurance and Damage
A. 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 naming the Lessor as a loss payee. 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.
B. Such policies shall provide that they may not be materially changed, altered, or
canceled by the insurer during its terms without first giving ten (10) days written
notice by certified or registered United States mail to the Lessor.
C. Lessee shall not violate the terms or prohibitions of any insurance policy herein
required to be furnished by Lessee.
D. 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
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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, in which event
the net proceeds of the property damage insurance required to be provided by Lessee
pursuant to Section 12.A. shall be retained by Lessee, 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. Except in the event of (2)
above, the net proceeds of property damage insurance provided by Lessee pursuant to
Section 12.A. shall be released by City and paid to Lessee for the purpose of Lessee
repairing, restoring or replacing improvements damaged or destroyed by such insured
fire or other casualty.
14. Waivers
No provision of this lease may be waived except by an agreement signed by the waiving
party. A waiver of any term or provision shall not be construed as a waiver of any other term
or provision. 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. Inconvenience During Construction
Lessee recognizes that from time to time it will be necessary for the Lessor to initiate and
carry forward programs of construction, reconstruction, expansion, relocation, maintenance
and repair at and to the Pueblo Memorial Airport in order that the Pueblo Memorial Airport
and its facilities may be suitable for the volume and character of air traffic and flight activity
which will require accommodation, and that such construction, reconstruction, expansion,
relocation, maintenance, and repair may inconvenience or interrupt Lessee's operations at the
Pueblo Memorial Airport. Lessee agrees that no liability shall attach to Lessor, its officers,
agents, employees, contractors, subcontractors and representatives by reason of such
inconvenience or interruption, and for and in further consideration of the premises, Lessee
waives any right to claim damages or other consideration therefor, provided, however, that
this waiver shall not extend to, or be construed to be a waiver of, any claim for physical
damage to property resulting from negligence or willful misconduct of the Lessor, its
officers, agents, employees, contractors, subcontractors and representatives.
16. Place and Manner of Payments
In all cases where Lessee is required by this Lease Agreement to pay any rentals, rates, fees
or other charges or to make other payments to Lessor, such payments shall be made at the
office of the Director of Aviation at the Pueblo Memorial Airport, or at such other place as
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Lessor may hereafter designate by notice in writing to Lessee and shall be made in legal
tender of the United States and any check shall be received by Lessor subject to collection.
Lessee agrees to pay any bank charges made for the collection of any such checks.
17. Assignments and Subletting
A. Lessee shall not assign this Lease or any interest therein nor sublet the leased
premises or any portion thereon without the prior written consent of Lessor, which
consent shall not be unreasonably or arbitrarily withheld, delayed, or denied. Any
assignment or subletting without the prior written consent of Lessor shall be void.
No assignment or subletting of this Lease or the leased premises shall release or
discharge Lessee from its obligations under this Lease.
B. Lessee, with the consent of the Lessor, 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 basic covenants and
provisions of this Hangar Ground Lease. Subtenant shall abide by all of the
other terms and conditions thereof applicable to the leased premises and use
thereof. The sublease may be for a lesser term than specified in Section 2
and for a rental greater than that specified in Section 3.
(2) The Subtenant shall maintain and keep in force commercial liability
insurance with a combined single limit not less than $1,000,000. Such
insurance requirement may be complied with by Subtenant's coverage under
Lessee's Master liability insurance policy.
(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 Lessor's Department of Aviation.
C. Notwithstanding A or B above, Lessor may deny its consent to any assignment or
sublease if Lessor in its sole discretion determines based upon written information
supplied to Lessor by Lessee at least sixty (60) days prior to the effective date of such
assignment or sublease that the proposed assignee or subtenant has failed to
demonstrate the ability to perform this Lease or the proposed sublease in a competent
and financially responsible manner. Failure of Lessee to provide adequate written
information concerning the assignee or subtenant sufficient for Lessor to make such
determination shall be, in and of itself, a sufficient basis for the Lessor to deny its
consent to any proposed assignment or sublease. Lessor shall inform Lessee in
writing whether it grants or denies its consent to the proposed assignment or
sublease. Consent to one assignment or subletting for use by any other person shall
not be deemed consent to any subsequent assignment or subletting.
D. 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.
Lessor hereby further agrees to recognize the leasehold mortgage or any purchaser of
the mortgaged leasehold at foreclosure in the same manner as an "assignee" under
this Lease. Such assignee shall be bound by the terms of this lease, including, but not
limited to, the curing of any known defaults. Notwithstanding the foregoing, no
mortgagee or trustee or anyone that claims by, through or under a leasehold mortgage
shall, by virtue thereof, acquire any greater right in the leased premises and in any
building or improvement thereon than Lessee then had under this Lease, and
provided further that any leasehold mortgage and the indebtedness secured thereby
shall at all time be and remain inferior and subordinate to all of the conditions,
covenants and obligations of this Lease and to all of the rights of the Lessor
hereunder. In no event shall Lessee, its heirs, successors, mortgagee or assignees have
the right to encumber, subordinate or render inferior in any manner Lessor's fee
simple title in and to the leased premises.
Any such Leasehold Mortgagee or assignee, at its option, at any time before the rights
of Lessee shall have been terminated, may pay any of the rents due hereunder or may
do any other act or thing or make any other payment required of the Lessee by the
terms of this Lease, or may do any act or thing which may be necessary and proper to
be done in the observance of the covenants and conditions of this Lease to prevent
the termination of this Lease so as to prevent a forfeiture of the rights of the Lessee
hereunder as the same would have been if done and performed by the Lessee instead
of by such leasehold mortgagee or assignee.
Provided Lessor has received written notice of a leasehold mortgage and copy of all
leasehold mortgage documents, during such time as Lessee's leasehold estate is
subject to a leasehold mortgage, this Lease may not be modified or voluntarily
surrendered without the prior written consent of the leasehold mortgagee; provided
however, that this Lease may be terminated without the consent of the leasehold
mortgagee if a default or other cause for termination under this lease occurs and is
not corrected or satisfied in accordance with the terms and conditions of the Lease.
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18. Agreements with United States
This Lease Agreement is subject and subordinate to the terms, reservations, restrictions,
provisions, and conditions of the deed of conveyance from the United States Government to
the Lessor and of any other existing or future agreement between the Lessor and the United
States, relative to the use, operation or maintenance of the Pueblo Memorial Airport and its
appurtenant facilities, the execution of which has been or may be required as a condition
precedent to the participation by any Federal Agency in the extension, expansions, or
development of said Airport and facilities.
19. Lessee's Default
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 thirty (30) days after written notice and
demand therefor are given by Lessor to Lessee.
(2) Failure of Lessee to perform or comply with any obligation, covenant or
agreement of Lessee hereunder other than payment of money 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.
B. In the case of a continuing 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 sixty (60) days prior written notice given to Lessee
specifying the date of termination and Lessee shall within said 60-day period
vacate the leased premises and surrender possession thereof to Lessor.
20. Notices
All notices, required to be given to Lessor hereunder, shall be in writing and be sent
by certified mail to Pueblo Memorial Airport. Administration Office. 31201 Bryan
Circle. Pueblo, Colorado 81001. All notices required to be given to Lessee hereunder
shall be in writing and sent by certified mail, addressed to Mr. John Barger, P.O. Box
3657 Pueblo, CO 81005 provided, that the parties, or either of them, may designate
in writing from time to time subsequent or supplementary persons or address in
connection with said notices. The effective date or service of any such notice shall be
the date such notice is mailed by Lessee or Lessor.
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21. Law, Rules and Regulations
A. Lessee, its officers, agents and employees shall faithfully observe and comply with all
applicable federal, state and local laws, regulations and ordinances now existing or
hereafter adopted relating to the use and occupancy of the Airport or leased premises
including without limitation Chapter 1 of Title III of the Pueblo Municipal Code.
B. Lessee, its officers, agents and employees shall faithfully observe and comply with all
minimum standards and rules regulating operations and activities from and upon the
Airport adopted from time to time by Lessor. Such minimum standards and rules
shall not be applied arbitrarily, discriminatorily, or unreasonably. Except with
respect to matters of public health and safety, if any provision of this Lease shall
conflict with any provision of the minimum standards and rules adopted or amended
by Lessor after commencement date, the conflicting provision of this Lease shall
control.
22. F.A.A. Lease Requirements
A. 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.
B. The Lessor reserves the right, without any obligation on its part to do so, to maintain
and keep in repair the landing area of the Airport and all publicly owned facilities of
the Airport, together with the right to direct and control all activities of Lessee in this
regard.
C. This Lease Agreement shall be subordinate to the provisions and requirements of any
existing or future agreement between the Lessor and the United States, relative to the
use, development, operation, or maintenance of the Airport.
D. Lessee shall comply with the notification and review requirements covered in Part 77
of the Federal Aviation Regulations with respect to the construction of any structure
or building on the leased premises, or in the event of any planned modification or
alteration of any present or future building or structure on the leased premises.
E. It is understood and agreed that nothing contained in this Lease Agreement shall be
construed to grant or authorize the granting of an exclusive right within the meaning
of Section 308 of the Federal Aviation Act.
F. Lessor reserves for the use and benefit of the public, a right of flight for the passage
of aircraft in the airspace above the surface of the leased premises, together with the
right to cause in said airspace such noise as may be inherent in the operation of
aircraft now known or hereafter used for navigation or flight in said airspace, and for
6Fa
use of said airspace for landing on, taking off from, or operations on or over the
Pueblo Memorial Airport.
G. Lessee by accepting this Lease Agreement expressly agrees for itself, its successors
and assigns that it will not erect nor permit the erection of any structure, building or
object nor permit the growth of any tree on the leased premises to a height not to
exceed 25 feet above ground level. In the event the aforesaid covenant is breached,
the Lessor reserves the right to enter upon the leased premises and to remove the
offending structure or object and cut the offending tree, all of which shall be at the
expense of the Lessee.
H. Lessee shall not make use of the leased premises in any manner which might
interfere with the landing and taking off of aircraft at 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.
I. If during the term of this lease, all or part of the leased premises should be taken or
threatened to be taken for any public or quasi - public use under any governmental law
or by right of eminent domain, or sold to the condemning authority under threat of
condemnation, this Lease shall terminate and the proceeds, if any, from such taking
or sale shall be allocated between Lessor and Lessee in accordance with applicable
condemnation law.
J. Lessor reserves the right to grant and to take easements or rights of way in, under,
over and across the leased premises, in which event, Lessor shall only be entitled to
compensation for damages to Hangars and other improvements of the Lessee
destroyed or damaged thereby, but not to damages for loss of use of the leased
premises.
23. Nondiscrimination Assurances
A. The Lessee, for itself, its successors and assigns, as a part of the consideration hereof,
does hereby covenant and agree as a covenant running with the land that in the event
facilities are constructed, maintained, or otherwise operated on the leased premises or
ramp, for a purpose for which Department of Transportation program or activity is
extended or for another purpose involving the provision of similar services or
benefits, the Lease shall maintain and operate such facilities and services in
compliance with all requirements imposes pursuant to 49 CFR, Part 21,
Nondiscrimination in Federally Assisted Programs of the Department of
Transportation, and as the regulations may be amended.
B. The Lessee, for itself, its successors and assigns, as a part of the consideration hereof,
does hereby covenant and agree as a covenant running with the land that (i) no person
on the grounds of race, color, religion, sex, disability or national origin shall be
excluded from participation in, denied the benefits of, or be otherwise subjected to
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discrimination in the use of the leased premises or ramp; (ii) that in construction of
any improvements on, over or under such land and the furnishing of services thereon,
no person on the grounds of race, color, religion, sex, disability, or national origin
shall be excluded from participation in, denied the benefits of, or otherwise be
subjected to discrimination; and (iii) that the Lessee shall use the leased premises and
ramp in compliance with all other requirements imposed by or pursuant to 49 CFR,
Part 21, Non - discrimination in Federally Assisted Programs of the Department of
Transportation, and as the regulations may be amended.
C. The Lessee assures that it will undertake an affirmative action program as required by
14 CFR, Part 152, Subpart E, to insure that no person shall on the grounds of race,
creed, color, religion, disability, national origin or sex be excluded from participating
in any contracting, leasing or employment activities covered in 14 CFR, Part 152,
Subpart E. The Lessee assures that no person shall be excluded, on these grounds,
from participating in or receiving the services or benefits of any program or activity
covered by this subpart. The Lessee assures that it will require that its covered
suborganizations provide assurances to the Lessee that they similarly will undertake
affirmative action programs and that they will require assurances from their
suborganizations, as required by 14 CFR, Part 152, Subpart E, to the same effect.
D. Lessee agrees to operate the leased premises for the use and benefit of the public and
to furnish good, prompt and efficient services adequate to meet all the demands for
its services at the Airport, to furnish service on a fair, equal and not unjustly
discriminatory basis to all users thereof, and to charge fair, reasonable, and not
unjustly discriminatory prices for each unit of service, provided that Lessee may be
allowed to make reasonable and nondiscriminatory discounts, rebates or other similar
types of price reductions to volume purchasers.
24. Miscellaneous
A. 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.
B. No waiver by the Lessor of any failure by Lessee to comply with any term or
condition of this Lease shall be or shall be construed to be a waiver by the Lessor of
any other failure by Lessee to comply with any term or condition of this Lease
Agreement.
C. This Lease and any amendments hereto are subject to prior approval of the Federal
Aviation Administration.
D. Lessee is leasing the leased premises "AS IS" in its present condition. Lessor makes
no representation or warranties with respect to the present or future condition, or
suitability for a particular use of the leased premises or the Pueblo Municipal
Airport. Lessor shall be under no obligation to maintain the Pueblo Memorial
-14-
Airport or any part thereof in a particular location or condition. If the Pueblo
Memorial Airport shall permanently close or relocate, the use restrictions stated in
paragraph 4.C. shall not apply, and the Lessee may use the leased premises for any
lawful use or purpose allowed by the then existing Pueblo Municipal Code, or in the
alternative, Lessee may terminate this Lease upon thirty (30) days prior written notice
given to Lessor.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed as of the
day and year first above written.
LESSOR
CITY OF PUEBLO,
A Municipal Corporation
B �
obe I). filling Jr.
Title: President of _City Cbun 1
Attest:
i
Approved as to form:
City Atto �'
-15-
Exhibit "A"
A Parcel of land located in Section 25, Township 20 South, Range 64 West of the 6 d '
P.M., located within the County of Pueblo, State of Colorado, being more particularly
described as follows:
Beginning at the Northwest comer of said Section 25: thence S75 °49'09 "E, 1666.99 feet
to the centerline at the west end of Runway 81J26R, also known as Station 0+00; thence
N88 °16'36 "E, a distance of 3062.00 feet along the centerline of said Runway 81J26R to
a point; thence SO1 °43'24 "E, a distance of 2438.50 feet to a point 2438.50 feet right of
the centerline of said runway 8U26R at Station 30+62, being the true point of beginning;
thence N88 ° 16'36 "E, a distance of 65.00 feet; thence SOl °43'24 "E, a distance of 93.00
feet; thence S88 °16'36 "W, a distance of 65.00 feet; thence NO1 °43'24 "W, a distance of
93.00 feet , to the point of beginning.
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