Loading...
HomeMy WebLinkAbout10735RESOLUTION NO. 10735 A RESOLUTION APPROVING A GROUND LEASE AND OPERATING AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND DOSS AVIATION, INC., A TEXAS CORPORATION, AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Ground 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, and Doss Aviation, Inc., A Texas Corporation, for real property, structure and office space located at Pueblo Memorial Airport for the purpose of administration, aircraft maintenance, flight training, and storage of aircraft, is hereby approved, subject to the conditions as set forth in said Ground Lease and Operating Agreement. SECTION 2. The President of City Council is hereby authorized to execute said Ground Lease and Operating Agreement on behalf of Pueblo, a Municipal Corporation, and the City Clerk shall affix the Seal of the City thereto and attest the same. INTRODUCED May 22, 2006 BY Jeff Chostner Councilperson APPROVED: President of Cit Council ATTESTED BY: CITY CLERK Lr Background Paper for Proposed RESOLUTION /& p, 11 ►135 AGENDA ITEM # DATE: May 22, 2006 DEPARTMENT: AVIATION - DANIEL E. CENTA, P.E. TITLE A RESOLUTION APPROVING A GROUND LEASE AND OPERATING AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND DOSS AVIATION, INC., A TEXAS CORPORATION, AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME ISSUE Should the City Council approve a Ground Lease and Operating Agreement for real property, structure and office space at Pueblo Memorial Airport between the City and Doss Aviation. Approval of this resolution. BACKGROUND Doss Aviation would like to lease office space in the terminal building beginning June 1, 2006 and real property and structure space beginning September 1, 2006 on a month -to- month basis pending the construction and readiness of their permanent facility. The real property and structure space that they will be leasing is City Hangar "D" that was formerly known as "Flower East". FINANCIAL IMPACT The rent for office space will begin June 1, 2006 and will be $276.00 per month. The rent for the real property and structures will begin September 1, 2006. The real property rent will be $817.00 per month and the structure rent will be $1,953.00 per month. GROUND LEASE AND OPERATING AGREEMENT CITY HANGAR "D" (FO KNOWN AS "FLOWER EAST") THIS LEASE made and entered into as of May 22, 2006 A.D. between the City of Pueblo, a municipal corporation, "Lessor", and Doss Aviation, Inc., a Texas corporation, "Lessee ". WITNESSETH: WHEREAS, Lessor is the owner and operator of Pueblo Memorial Airport ( "Airport"), together with the land on which said Airport is situated, and WHEREAS, Lessee is desirous of leasing certain real property and having the right to use terminal officelstorage space and structure and ramp space on said Airport property for the purpose of administration, aircraft maintenance, flight training, and storage of aircraft in conjunction with Lessee's initial flight screening program for the U.S. Air Force ( "Program'). NOW THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows: 1. Land Parcel Lessor hereby leases unto Lessee and Lessee hereby leases from Lessor for the term and upon the rental and conditions hereinafter stated, (a) The real property, marked "lease area" on the Exhibit "B ", attached hereto and made a part hereof, situated in the County of Pueblo, State of Colorado, together with a hangar building of approximately fifteen thousand six hundred twenty five (15,625) square feet located thereon; and, (b) Office Space in the terminal building of approximately two hundred forty (240) square feet marked on Exhibit "A" attached hereto and made a part hereof. The term "lease area ", as used in this Lease, means and includes the terminal office spare (Exhibit "A ") and real property and structures (Exhibit `B') as well as any improvements hereafter constructed or added thereto. The lease area and Lessee's right to use same are subject to all easements, reservations, covenants, rights -of -way and restrictions of record. 2. Term: The term of this Lease is from month -to- month, beginning June 1, 2006 for office space in the terminal described in Exhibit "A ", and beginning September 1, 2006 for aircraft maintenance, flight training, and storage ofaircraft on the lease area described in Exhibit "B ". The month- to-month term shall automatically renew each month unless terminated by either party by written notice delivered to the other party at least 14 calendar days prior to date on termination. Should Lessee terminate this Lease pursuant to this provision, Lessor and Lessee agree that Lessee shall be responsible forth pro- rated portion of rent incurred through the termination date. -I- It is expressly understood that the use of these facilities is temporary pending the construction and readiness of the permanent locations for the Program. 3. Fee and Other Charges A. Lessee shall pay to Lessor monthly as rent the following amounts: $817.00 per month for the land portion of lease area; $1,953.00 per month for the structures located on the lease area and 276.00 per month for office space in the terminal. B. Such rent and fees shall be paid monthly without notice, offset or deduction on or before the tenth (10t of the following month at the City of Pueblo Director of Finance's office and shall be accompanied with such reporting forms as the Director ofFinance shall determine. Lessor agrees that in the event Lessee terminates this Lease in accordance with Paragraph 2, Lessee shall be responsible for that pro-rated portion of rent incurred through the termination date. C. Any rent or fees overdue for more than thirty (30) days will accrue interest at the rate of eight percent (8 %) per annum. 4. Improvements and Use A. The lease area shall be used and occupied by Lessee solely in conjunction with the Program. B. Lessee shall maintain the lease area in accordance with the requirements and regulations of Lessor and Lessor's fire code. 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 and under the lease area which is caused by Lessee, its officers, agents, employees, contractors or fuel suppliers. It is understood that Lessee is not responsible for any conditions, which may be determined to have been caused by parties other than Lessee, its officers, agents, employees, contractors or fuel suppliers, or caused or existing prior to January 1, 1980. The storage and accumulation of aviation fuel, flammables, explosive liquids, or solids, waste, debris or other hazardous materials within or on the lease area shall be in an environmentally sound manner and comply with all Federal, State and Local laws and regulations. C. Lessee, at its sole cost and expense, may cause to be constructed and installed upon the lease area additional improvements in accordance with plans and specification approved by Lessor, including architectural approval, which consent will not be unreasonably withheld or arbitrarily delayed. The 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 will not modify, alter, or improve any improvements upon the lease area whether now existing or hereafter constructed without the prior written approval of Lessor. Lessee may paint any improvements or any markings for parking of aircrafls upon the leased area with the approval of Lessor. D. Lessee grants to Lessor the right to enter the lease area to do what is necessary for the purposes of repairing, replacing, and/or maintaining any and all utility lines under the lease area which serve other uses at the Airport, it being understood that Lessor will repair, in a ya good and workmanlike fashion, any and all damage done to the lease area as the result of work done hereunder. E. Lessor grants to Lessee the non - exclusive use of the Airport Conference Room for matters relating to business pursuant to Conference Room scheduling approved by Lessor. F. Use of the ramp adjacent to the lease area shall be limited to the movement of aircraft. Lessee and ramp users shall use the ramp in compliance with Lessor's ground traffic rules and regulations which will reasonably accommodate Lessee's current use for the purposes set forth in A. above, as determined by the City Manager in consultation with Lessee. G. Lessee acknowledges and agrees that the ramp, lease area, and structure are currently in need of repairs and re- surfacing and accepts the ramp and structure in its present condition "AS IS" "WITH ALL ITS FAULTS ", without warranty or representation, express or implied, including, without limitation, any warranties of merchantability or fitness for a particular purpose or condition or usability in their present condition. Lessee agrees that Lessor shall have no obligation to upgrade, repair, re- surface or maintain the ramp, structures or lease area- H. Lessee acknowledges that Lessor has no obligation to maintain the surface of the ramp or lease area free and clear of debris, snow, sand and ice and this shall be the responsibility of the Lessee. 5. Maintenance Obligation Lessee, at its expense, shall keep the lease area in good repair and condition, and in a safe, sanitary, orderly, and sightly condition, ordinary wear and tear excepted. 6. Title to Improvements The structures leased to Lessee hereunder and any improvements constructed or erected hereunder by Lessee, excluding movable trade fixtures, shall constitute a part of the lease area and therefore such structures and improvements cannot be removed from the land. Fee simple title to the structures are in the Lessor and fee simple title to subsequently constructed improvements shall vest with Lessor upon completion of construction of same, free of liens and encumbrances. Notwithstanding that title is in or vests in Lessor, Lessor shall not be responsible for any defects in the lease area or structures and shall have no obligation or responsibility to maintain, repair, or restore the structures and other improvements on the lease area; all such obligation and responsibility shall be that of Lessee. Sins Lessee shall not erect, paint or maintain any signs whatsoever upon the lease area without first securing the written consent of Lessor. Any such signs shall comply with all ordinances and regulations of Lessor or standards which might be developed by the Department of Aviation. 8. Right of Inspection Lessor reserves and retains for its officers, employees and authorized representatives the right to enter the lease area during an emergency and during reasonable business hours and after prior notice, for the purpose of inspecting and protecting the lease area, and of doing any and all things which Lessor may -3- deem necessary for the proper general conduct and operation of the Airport, and in the exercise of Lessor's police power. 9. Indemnification Lessee assumes the risk of loss or damage to the lease area 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, fuel suppliers, successors or assigns in connection with its use or occupancy or their use or occupancy of any portion of the Airport, including the lease area. The provision of this Section and Section 4.13. shall survive the termination of this Lease. 10. 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 costs and expense, provide and keep in force commercial liability insurance which includes personal injury, hangar keepers liability, and property damage with a combined single limit of not less than one million dollars ($1,000,000). Lessee shall insure the structures and other improvements on the lease area in an amount equal to their full insurable value naming Lessor as a loss payee. Lessor shall provide workers' compensation insurance complying with the Colorado Workers' Compensation Act. 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 lease area, structures and property thereon, including aircraft, Lessee releases Lessor, its 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 polices 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 parties to this lease. C. The parties shall not violate the terms or prohibitions of any insurance policy herein required to be furnished. D. If the structures or other improvements on the lease area (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 lease area to its 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 10.A. shall be retained by Lessor, 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 therefore approved by Lessor. Except in the event of (2) above, the net proceeds of property Me damage insurance provided by Lessee pursuant to Section 10.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. Rent shall be proportionately abated during the period from the date of the occurrence of such casualty to the completion of repairs, restoration or replacement based upon the square feet of the improvements damaged by such casualty. 11. 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. 12. Inconvenience Durine Construction Lessee recognizes that from time to time it will be necessary for Lessor to initiate and carry forward programs of construction, reconstruction, expansion, relocation, maintenance and repair at and to the Airport in order that the 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 Airport. Lessee agrees that no liability shall attach to Lessor, its officers, agents, employees, contractors, subcontractors and representatives by reason ofsuch inconvenience or interruption, and for and in further consideration of the premises, Lessee waives any right to claim damages or other consideration therefore, 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 Lessor, its officers, agents, employees, contractors, subcontractors and representatives. 13. 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 Finance ofthe City of Pueblo, or at such other place as 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. 14. Assignments and Subletting Lessee shall not assign this Lease or any interest therein nor sublet the lease area or any portion thereof. 15. Agreement with United States This Lease is subject and subordinate to the terms, reservations, restrictions, provisions, and conditions of the deed of conveyance from the United States Government to Lessor and of any other existing or future agreement between Lessor and the United States, relative to the use, operation or maintenance of the 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 extensions, expansions, maintenance or development of said Airport and facilities. -5- 16. 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 for a period of ten (10) days after written notice and demand therefore 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 the 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 the continuing event of default by Lessee, Lessor shall have the following remedies 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 fourteen (14) days prior written notice given to Lessee specifying the date of termination and Lessee shall within said fourteen (14) day period vacate the lease area and surrender possession thereof to Lessor. (2) Without terminating this Lease, retake possession of the lease area and relet the lease area or any part thereof for such term or terms and upon such other conditions as Lessee in its reasonable judgment shall determine. If the rent, fees and other charges are less than those provided for herein, Lessee shall be responsible and liable for any deficiency between the amount of the rent, fees and charges provided for herein and those received through such reletting. Lessor shall not be responsible or liable for any failure to relet the lease area or any part thereof, or failure to collect any rent, fees or other charges due upon such reletting. No notices from Lessor hereunder or under a forcible entry and detainer statute or similar law shall constitute an election by Lessor to terminate this Lease unless such notice specifically so states. Lessor reserves the right following any such reentry and/or reletting to exercise its right to terminate this Lease as provided in (1) above. 17. Notices All notices required to be given to Lessor hereunder shall be in writing and be sent by certified mail to City Manager, 1 City Hall Place, Pueblo, Colorado, 81003, and to 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 Frank Hunter, President/CEO, 3320 Carefree Circle West, Colorado Springs, CO 80917, 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. 18. Law, Rules and Reeulations ME A. Lessee, its officers, agents and employees shall faithfully observe and comply with all applicable federal, state and local laws, rules, regulations and ordinances now existing or hereafter adopted relating to the use and occupancy of the Airport or lease area, 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. 19. F.A.A. Lease Requirements A. Lessor reserves the right, without any obligation on its part to do so, to develop, modify, change, improve or abandon the 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. 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 shall be subordinate to the provisions and requirements of any existing or future agreement between 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 lease area, or in the event of any planned modification or alteration of any present or future building or structure on the lease area. E. It is understood and agreed that nothing contained in this Lease 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 lease area and ramp, 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 use of said airspace for landing on, taking off from, or operations on or over the Airport. G. Lessee by accepting this Lease 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 lease area to a height not to exceed thirty-five (3 5) feet above ground level. In the event the aforesaid covenant is breached, Lessor reserves the right to enter upon the lease area 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 lease area in any manner which might interfere with the landing and taking off of aircraft at Airport or otherwise constitute a hazard to aviation. In the event the aforesaid covenant is breached, Lessor reserves the right to enter upon the lease area and cause the abatement of such interference at the expense of the Lessee. -7- If during the term of this lease, all or part of the lease area 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 lease area in which event, Lessor shall only be entitled to compensation for damages to improvements of the Lessee destroyed or damaged thereby, but not to damages for loss of use of the lease area. 20. 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 lease area 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 Lessee shall maintain and operate such facilities and services in compliance with all requirements imposed 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 discrimination in the use of the lease area 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 lease area and ramp in compliance with all other requirements imposed by or pursuant to 49 CFR, Part 21, Nondiscrimination 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. 21. 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 successors. IM B. No waiver by 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 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 lease area "AS IS" "WITH ALL ITS FAULTS" 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 lease area or the Airport. Lessor shall be under no obligation to maintain the Airport or any part thereof in a particular location or condition. If the Airport shall permanently close or relocate, Lessee may terminate this Lease upon fourteen (14) days prior written notice given to Lessor. E. In the event of any litigation arising under this lease, the court shall award the prevailing party its costs and expenses of litigation including without limitation, reasonable attorney and expert witness fees. Venue for any such litigation or other proceedings arising under this Lease shall be Pueblo County, Colorado. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed as ofthe day and year first above written. LESSOR City of Pueblo, a Municipal Corporation LESSEE Doss Aviation, Inc. Michael A. Occhiato President of Citv Council Attest: City Clerk Approved as to form: tto Name: /C'e 4 U K 6 p V 7e rL Title: 9 Wh °'& O 6 0 w r a H w a � a H U � >C a W .7 V z DC O w z LON C H H H x w IE 11