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HomeMy WebLinkAbout08795ORDINANCE NO. 8795 AN ORDINANCE APPROVING AN AIRPORT JOINT USE AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE UNITED STATES OF AMERICA, ACTING BY AND THROUGH THE COMMANDER, AIR FORCE RESERVE COMMAND (“AIR FORCE”), RESCINDING ORDINANCE NO. 8722 AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME WHEREAS, City Council passed Ordinance No. 8722 on April 14, 2014 that approved an Airport Joint Use Agreement (“Agreement”) between the City of Pueblo and the United States of America, acting by and through the Commander, Air Force Reserve Command (“Air Force”); and WHEREAS, the Air Force has requested a new Agreement with certain changes affecting the term dates of the Agreement and how payments are made to the City; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. A certain Airport Joint Use 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 United States of America, acting by and through the Commander, Air Force Reserve Command relating to delineation of responsibility for operation and maintenance of the flying facilities and to establish the Air Force’s reasonable share, proportional to such use, of the cost of operating and maintaining such jointly used flying facilities is hereby approved, subject to the conditions as set forth in said Airport Joint Use Agreement. SECTION 2. Ordinance No. 8722 is hereby rescinded. SECTION 3. The President of City Council is hereby authorized to execute said Airport Joint Use Agreement on behalf of Pueblo, a Municipal Corporation, and the City Clerk shall affix the Seal of the City thereto and attest the same. SECTION 4. The officers and staff of the City are directed and authorized to perform any and all acts consistent with the intent of this Ordinance and the attached Airport Joint Use Agreement to effectuate the transactions described therein. SECTION 5. This Ordinance shall become effective immediately upon final passage and approval. INTRODUCED: November 10, 2014 BY: Chris Nicoll PASSED AND APPROVED: November 24, 2014 City Clerk’s Office Item # R-5 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: November 10, 2014 TO: Vice President Ami Nawrocki and Members of City Council CC: Sam Azad, City Manager VIA: Gina Dutcher, City Clerk FROM: Mark Lovin – Aviation Department SUBJECT: AN ORDINANCE APPROVING AN AIRPORT JOINT USE AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE UNITED STATES OF AMERICA, ACTING BY AND THROUGH THE COMMANDER, AIR FORCE RESERVE COMMAND (“AIR FORCE”), RESCINDING ORDINANCE NO. 8722 AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME SUMMARY: This Ordinance approves an Airport Joint Use Agreement with the Air Force and rescinds Ordinance No. 8606 dated July 8, 2013. PREVIOUS COUNCIL ACTION: On July 8, 2013, City Council passed Ordinance No. 8606 approving an Airport Joint Use Agreement (“Agreement”) with the Air Force. On April 14, 2014, City Council passed Ordinance No. 8722 was passed on April 14, 2014 approving another Airport Joint Use Agreement with the Air Force and rescinding Ordinance No. 8606. BACKGROUND After City Council approved Ordinance No. 8722 in April, the agreement was sent to the Air Force for signature. After reviewing the Agreement, the Air Force asked for more changes to be incorporated into the Agreement. The requested changes affect only the dates of the Agreement and how payments will be made to the City. See Financial Implications for further explanation. These changes were acceptable to the Department. FINANCIAL IMPLICATIONS: The Agreement, as revised, provides that the Air Force will, upon execution of the Agreement, pay a lump sum of $59,561.70 for the period beginning October 1, 2012 and ending September 30, 2014. For the period beginning October 1, 2014 and ending September 30, 2018, the Air Force will pay $29,780.85 annually on the first day of October of each fiscal year (1 October-30 September). BOARD/COMMISSION RECOMMENDATION: None STAKEHOLDER PROCESS: None. ALTERNATIVES: If City Council does not approve the Agreement, the City will not receive any funds from the Air Force for operating at the Airport. RECOMMENDATION The Aviation Department recommends approval of this Ordinance. Attachments: Airport Joint Use Agreement AIRPORT JOINT USE AGREEMENT BETWEEN CITY OF PUEBLO, PUEBLO MEMORIAL AIRPORT AND UNITED STATES OF AMERICA - 1- Table of Contents AIRPORT JOINT USE AGREEMENT - 3 - RECITALS - 3 - AGREEMENT: -4 - I. DEFINITIONS -4 - 2. JOINT USE -4 - 3. CITY RESPONSIBILITIES -4 - 4. GOVERNMENT RESPONSIBILITIES - 5 - 5. PAYMENTS - 6 - 6. AIRFIELD MANAGEMENT - 7 - 7. GOVERNMENT RESERVED RIGHTS - 7 - 8. FIRE PROTECTION AND CRASH RESCUE - 8 - 9. RECORDS AND BOOKS OF ACCOUNT - 8 - 10. TERM - 8 - II. TERMINATION 8 12. GENERAL PROVISIONS -9 - 13. MAJOR REPAIRS AND NEW CONSTRUCTION - 11 - 14. NOTICES• - 11 - - 2 - AIRPORT JOINT USE AGREEMENT THIS AGREEMENT made and entered into this 10`" day of November, 2014, by and between the City of Pueblo, Pueblo Memorial Airport in the State of Colorado ("City"); and the UNITED STATES OF AMERICA, acting by and through the Commander, Air Force Reserve Command. RECITALS A. The City of Pueblo owns and operates Pueblo Memorial Airport ("Airport"), located in the County of Pueblo, State of Colorado. B. Title 49, United States Code, Chapter 471, "Airport Development," (49 U.S.C. Sections 47101-47129), provides that each of the Airport's facilities developed with financial assistance from the United States Government and each of the Airport's facilities usable for the landing and taking off of aircraft always will be available without charge for use by Government aircraft in common with other aircraft, except that if the use is substantial, the Government may be charged a reasonable share, proportionate to the use, of the cost of operating and maintaining the facilities used. C. The Government requires substantial use of the flying facilities at the Airport for the Air Force Reserve and for other occasional transient government aircraft. D. The City is agreeable to such substantial use, in common with other users of the Airport, of the flying facilities by the Government under this Agreement. E. The Government and the City desire to provide for the delineation of responsibility for operation and maintenance of the flying facilities jointly used in common with others at the Airport, and to establish the Government's reasonable share, proportional to such use, of the cost of operating and maintaining such jointly used flying facilities. - 3 - AGREEMENT 1. DEFINITIONS For purposes of this Agreement, the Jointly Used Flying Facilities of the Airport are the runways, taxiways, lighting systems, navigational aids, markings and appurtenances open to public use and use by the Government, including all improvements and facilities pertaining thereto and situated thereon, as outlined in green on map entitled "Pueblo Memorial Airport," and attached hereto as Exhibit "A", and all future additions, improvements, and facilities thereto as may be added or constructed from time to time. The Jointly Used Flying Facilities do not include land areas used exclusively by the Government or the terminal buildings, hangars, non-government parking aprons and ramps, or other areas or structures used exclusively by the City or its lessees, permittees, or licensees for civilian or commercial purposes. 2. JOINT USE Subject to the terms and conditions of this Agreement, the Government shall have the use, in common with other users of the Airport, present and prospective, of the Jointly Used Flying Facilities, together with all necessary and convenient rights of ingress and egress to and from the Jointly Used Flying Facilities. Routes for ingress and egress for the Government employees, agents, customers and contractors shall not unduly restrict the Airport in its operation. 3. CITY RESPONSIBILITIES The City will be responsible for the following services and functions, to standards in accordance with Paragraph 6 below: a. Furnishing all personnel, materials and equipment required in the rendering of the services to be provided under the Agreement. b. Performing any and all maintenance of the Jointly Used Flying Facilities, including but not limited to: -4- (1) Joint sealing, crack repair, surface repairs, airfield markings and repair or replacement of damaged sections of airfield pavement; (2) Runway, taxiway, and approach lighting and the regulators and controls therefore; (3) Beacons (unless beacons are declared optional for the airport by the Federal Aviation Administration ("FAA"), obstruction lights, wind indicators, and other navigational aids; (4) Drainage, grass cutting and grounds care, and dust and erosion control of unpaved areas, adjacent to runways and taxiways; (5) Sweeping runways and taxiways; (6) Controlling insects and pests (deer, fox, etc) hazardous to aircraft operations; (7) Removing snow, ice and other hazards from runways and taxiways, within a reasonable time after such runways and taxiways have been so encumbered. c. Furnish utilities necessary to operate the Jointly Used Flying Facilities. d. Removing disabled civil aircraft as expeditiously as possible, subject to the rules and regulations of the National Transportation Safety Board, in order to minimize the time the Jointly Used Flying Facilities, or any part thereof, would be closed because of such aircraft. e. Ensuring that either the Airport Manager or his or her designee is present at the Airport or on call on a 24-hour a day, seven days per week basis. 4. GOVERNMENT RESPONSIBILITIES The Government will be responsible for the following: a. Removing disabled Government aircraft as expeditiously as possible in order to minimize the time the Jointly Used Flying Facilities, or any part thereof, would be closed because of such aircraft. b. Subject to availability of appropriations therefore, repairing within a reasonable time damage to the Jointly Used Flying Facilities to the extent that such damage is caused solely by Government aircraft operations and/or Government equipment installed and - 5 - maintained by Government on the Jointly Used Flying Facilities and is in excess of the fair wear and tear resulting from the military use contemplated under this Agreement. 5. PAYMENTS a. In consideration of and for the faithful performance of this Agreement, and subject to the availability of Federal appropriations, the Government shall pay to the City as its proportionate share of operating and maintaining the Jointly Used Flying Facilities an amount as follows: (1) For the period beginning October 1, 2012 and ending September 30, 2014, the amount of FIFTY NINE THOUSAND FIVE HUNDRED SIXTY ONE DOLLARS and 70/100 ($59,561.70), paid in one lump sum after execution of this document. (2) For the period beginning October 1, 2014 and ending September 30, 2018, the amount of TWENTY NINE THOUSAND SEVEN HUNDRED EIGHTY DOLLARS and 85/100 ($29,780.85) annually, paid on the 1st day of October of each fiscal year (1 October—30 September). (3) If either party exercises its right to terminate under paragraph 11(a) of this Agreement prior to the term ending date, the annual payment by the Government for that fiscal year shall be prorated accordingly and the City shall reimburse the Government for fees paid for the period after the effective date of termination. No further payments will be due from the Government after the effective date of termination. b. Payments for the periods set out in Paragraph 5a above shall be made upon submission of appropriate bills to the Air Force as designated in Paragraph 5c below; provided, however, that if during the term of this Agreement, sufficient funds are not available through the annual appropriations at the beginning of any fiscal year to carry out the provisions of this Agreement, the Air Force will so notify the City in writing. - 6- c. Bills for the payments provided hereunder shall be directed to: Headquarters 302nd Airlift Wing/CC 450 W. Hamilton Ave., Ste 171 Peterson AFB, CO, 80914 Or to such other address as the Air Force may from time to time provide to the City in writing. d. Either party may request renegotiation if either party, at the request or with the formal concurrence of the other, as the case may be, requires services not contemplated by this Agreement, or reduces or eliminates services it undertakes to provide under this Agreement. 6. AIRFIELD MANAGEMENT a. The City agrees that maintenance of the Jointly Used Flying Facilities shall, at all times, be in accordance with FAA standards for the operation of a commercial airport and operation of jet aircraft. b. The Government agrees that any markings and equipment installed by it pursuant to Paragraph 7 of the Agreement shall not be in conflict with FAA standards. c. The City agrees that it will not close any runway on the airport without prior coordination with the Government except in an emergency situation. 7. GOVERNMENT RESERVED RIGHTS The Government reserves the right, at its sole cost and expense and subject to Paragraph 6b above, to: a. Provide and maintain in the Jointly Used Flying Facilities airfield markings required solely for military aircraft operations. b. Install, operate and maintain in the Jointly Used Flying Facilities any and all additional equipment, necessary for the safe and efficient operation of military aircraft including but not limited to arresting systems and navigational aids. - 7 - 8. FIRE PROTECTION AND CRASH RESCUE The City shall be responsible for and provide fire protection and crash rescue services for both civil and Air Force aircraft operations at the Airport in accordance with FAA standard of operation of a commercial airport and operation of jet aircraft. The City, through its Fire Department, maintains fire fighting and crash rescue operations with duty personnel consisting of trained fire fighters and equipment of one (1) fire vehicle, with a capacity of 1500 gallons of water, 450 pounds of dry chemical and 200 gallons of light water(AFFF).; At least one light dash vehicle is first aid equipped. If the City needs to exchange equipment, they will notify the Air Force at least 30 days prior to making such exchange. Crash/rescue services will be provided for both civil and Air Force aircraft 24 hours, daily. 9. RECORDS AND BOOKS OF ACCOUNT The City agrees to keep records and books of account, showing the actual cost to it of all items of labor, materials, equipment, supplies, services, and other expenditures made in fulfilling the obligations of this Agreement. The Comptroller General of the United States or any of his or her duly authorized representative shall, until the expiration of three (3) years after final payment, have access at all times to such records and books of account, or to any directly pertinent books, documents, papers, and records of any of the City's contractors or subcontractors engaged in the performance of and involving transactions related to this Agreement. The City further agrees that representatives of the Air Force Audit Agency or any other designated representative of the Government shall have the same right of access to such records, books of account, documents and papers as is available to the Comptroller General. 10. TERM The Agreement shall be effective for a term of six (6) years beginning October 1, 2012, and ending September 30, 2018. 11. TERMINATION a. This Agreement may be terminated by either party at any time by giving at least thirty (30) days notice thereof in writing to the other party. - 8- b. The Government, by giving written notice to the City, may terminate the right of the City to proceed under this Agreement if it is found, after notice and hearing by the Secretary of the Air Force or his or her duly authorized representative, that gratuities in the form of entertainment, gifts, or otherwise, were offered or given by the City, or any agent or representative of the City, to any officer or employee of the Government with a view toward securing this Agreement or securing favorable treatment with respect to the awarding of amending, or the making of any determinations with respect to the performing of such agreement, provided that the existence of the facts upon which the Secretary of the Air Force or his or her duly authorized representative makes such findings shall be an issue and may be reviewed in any competent court. c. In the event this Agreement is terminated as provided in subparagraph 11 b above, the Government shall be entitled to pursue the same remedies against the City as it could pursue in the event of a breach of Agreement by the City and in addition to any other damages in an amount (as determined by the Secretary of the Air Force or his or her duly authorized representative) which shall be not less than three (3) or more than ten (10) times the costs incurred by the City in providing any such gratuities to any such officer or employee. d. The rights and remedies of the Government provided in subparagraph 11 c above shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement. 12. GENERAL PROVISIONS a. Compliance with Law. The City shall comply with all Federal, State and Local laws, rules and regulations applicable to the activities conducted under this Agreement. b. Assignment. The City shall neither transfer nor assign this Agreement without the prior written consent of the Government, which shall not be unreasonably withheld or delayed. c. Liability. Except as otherwise provided in this Agreement, neither party shall be liable for damages to property or injuries to persons arising from acts of the other in - 9- the use of the Jointly Used Flying Facilities or occurring as a consequence of the performance of responsibilities under this Agreement. d. Third Party Benefit. No member or delegate to Congress shall be admitted to any share or part of this Agreement or to any benefit that may arise there from, but this provision shall not be construed to extend to this Agreement if made with a corporation for its general benefit. e. Entire Agreement. It is expressly agreed that this written instrument embodies the entire financial arrangement and agreement of the parties regarding the use of the Jointly Used Flying Facilities by the Government, and there are no understanding or agreement, verbal or otherwise, between the parties in regard to it except as expressly set forth here. Specifically, no landing fees or other fees not provided in this Agreement will be assessed by the City against the Government in the use of the Jointly Used Flying Facilities during the term of this Agreement. f Modification. This Agreement may only be modified or amended by mutual agreement of the parties in writing and signed by each of the parties hereto. g. Waiver. The failure of either party to insist, in any one or more instances, upon the strict performance of any of the terms, conditions, covenants, or provisions of this Agreement shall not be construed as a waiver or relinquishment of the right to the future performance of any such terms, conditions, covenants, or provisions. No provision of this Agreement shall be deemed to have been waived by either party unless such waiver is in writing signed by such party. h. Funds Availability. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. i. Paragraph Headings. The brief headings or titles preceding each Paragraph and subparagraph are merely for purposes of identification, convenience, and ease of reference, and will be completely disregarded in the construction of this Agreement. - 10- 13. MAJOR REPAIRS AND NEW CONSTRUCTION Major repair projects and/or new construction projects required for the Jointly Used Flying Facilities (collectively, "Joint Use Projects") are not included under this Agreement. Any Government contribution to Joint Use Projects shall be the subject of separate negotiations and written agreement between City and the Government at such time as the work is required. Any Government participation in the costs of Joint Use Projects is subject to the availability of Federal funds for such purposes at the time the work is required. 14. NOTICES: No notice, order, direction, determination, requirement, consent or approval under this Agreement shall be of any effect unless it is in writing and addressed as provided herein. a. Written communications to the City shall be addressed to: Department of Aviation Pueblo Memorial Airport 31201 Bryan Circle Pueblo, CO 81001 Phone (719) 553-2760 b. Written communications to the Government shall be in duplicate with copies to the United States of America as follows: Wing Commander 302 Airlift Wing 450 W. Hamilton AVE., Ste 171 Peterson AFB CO 80914 Air Force Reserve Command HQ AFRC/A7 225 Richard Ray Boulevard Robins AFB GA 31098-1637 - 11 - IN WITNESS WHEREOF, the respective duly authorized representatives of the parties hereto have executed this Agreement on the date set forth opposite their respective signatures. Dated: /1 12 t-/ / 19 City of Pueblo PUEBLO MEMORIAL AIRPORT Attested by: �� By: Gin utcher, City Clerk (Title) President of City Council Dated: !, OV 7 p/c UNITED STATES OF AMERICA By: ( itleYDWI tyt AS51 STA rr S C Ry (trm ` ei T SAS Inkt D XP QC—TORO. - 12 - .I „ d,..i. zi- )4'44 '"34tH. 7.7 Mn �'d �•I SIN, MI�II119 5, ...-, •,. _ Imo' MSI - 1,.OMY1�I�icl �.m141 aalua) l uollngp s ;a6Je1 z° iQ I __ I ,, MM/.AMI1 N i Ii I MIN.1Mi 1 y; II IAM! 11 i, ` 11 II .n , XII z7---``. . 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