HomeMy WebLinkAbout13313RESOLUTION NO. 13313
A RESOLUTION CONSENTING TO THE ASSIGNMENT OF THE
HANGAR GROUND LEASE DATED MARCH 24, 1997
BETWEEN THE CITY OF PUEBLO AND K & N PARTNERS, CO.,
A CO-PARTNERSHIP, FOR LOT NO. 4 IN THE GENERAL
AVIATION HANGAR DEVELOPMENT AREA AT THE PUEBLO
MEMORIAL AIRPORT AND AUTHORIZING THE PRESIDENT
OF CITY COUNCIL TO EXECUTE SAME
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Consent to Assignment, a copy of which is attached hereto, having been approved
as to form by the City Attorney, is hereby approved, and the President of the City Council is
authorized to execute and deliver the Consent to Assignment in the name of the City and the
City Clerk is to attest same and affix the seal of the City thereto.
SECTION 2.
The officers and staff of the City are directed and authorized to perform any and all acts
consistent with the intent of this Resolution and the attached Assignment to effectuate the
transactions described herein.
SECTION 3.
This Resolution shall become effective immediately upon passage and approval.
INTRODUCED: October 13, 2015
BY: Chris Nicoll
City Clerk’s Office Item # M-3
Background Paper for Proposed
Resolution
COUNCIL MEETING DATE: October 13, 2015
TO: President Steve Nawrocki and Members of City Council
CC: Sam Azad, City Manager
VIA: Gina Dutcher, City Clerk
FROM: Aviation Department
SUBJECT: A RESOLUTION CONSENTING TO THE ASSIGNMENT OF THE HANGAR
GROUND LEASE DATED MARCH 24, 1997 BETWEEN THE CITY OF PUEBLO
AND K & N PARTNERS, CO., A CO-PARTNERSHIP, FOR LOT NO. 4 IN THE
GENERAL AVIATION HANGAR DEVELOPMENT AREA AT THE PUEBLO
MEMORIAL AIRPORT AND AUTHORIZING THE PRESIDENT OF CITY
COUNCIL TO EXECUTE SAME
SUMMARY:
This Resolution consents to the Assignment of a Hangar Ground Lease at the Pueblo Memorial
Airport.
PREVIOUS COUNCIL ACTION:
The City entered into a Hangar Ground Lease Agreement with K & N Partners on March 24,
1997 for Lot No. 4 in the General Aviation Hangar Development Area at the Pueblo Memorial
Airport. On December 8, 1997, the City agreed to an assignment of the lease to Paul R. Nunn.
On February 10, 2009, after Mr. Nunn’s death, a Statement of Transfer was entered into with
Sharrie I. Nunn and Kristine Irene Nunn. The Nunns then sold the hangar and assigned the
lease to Richard F. Leach, Jr. on October 13, 2013.
BACKGROUND
The original lease was for 20 years with 2 10-year options to extend the lease. The first term of
the lease expires March 24, 2017. The lease can then be extended for the additional 10-year
options. Mr. Leach is selling the hangar to Kriss Childress and they have asked the City to
reassign the Hangar Ground Lease to him.
FINANCIAL IMPLICATIONS:
There will be no financial impact as Kriss Childress will take over the lease payments.
BOARD/COMMISSION RECOMMENDATION:
Not Applicable for this Resolution.
STAKEHOLDER PROCESS:
Not applicable.
ALTERNATIVES:
Section 17, Paragraph A of the Hangar Ground Lease reads as follows:
“Lessee shall not assign or transfer this Lease without the prior written consent of
Lessor, which consent shall not be unreasonably withheld. Any assignment or transfer
without the prior written consent of Lessor shall be void.”
If the assignment is not approved and Mr. Childress purchases the hangar, a new lease will
need to be negotiated and brought to City Council for approval.
RECOMMENDATION
The Aviation Department recommends approval of this Resolution.
Attachments:
Assignment
CONSENT TO ASSIGNMENT
The City of Pueblo as Lessor under the Hangar Ground Lease, in reliance upon the
Recitals and provisions of the foregoing Assignment, consents to the foregoing Assignment of
the Hangar Ground Lease by Assignor to Assignee on the express condition that no further
assignment of the Hangar Ground Lease or any part thereof shall be made without the prior
written consent of the City of Pueblo.
Executed in Pueblo, Colorado the 13th day of October , 2015.
CITY OF PUEBLO,
A MUNICIPAL CORPORATION
. _n
ATTEST: B\ „we
. awrocki
President of City Council
City k
ASSIGNMENT OF HANGAR GROUND LEASE
THIS ASSIGNMENT is entered into this day ofapr, (1 , 2018 ("Effective Date") by
and between Kriss Childress, 489 South Hook Court, Pueblo, Colorado 81007 ("Childress") and
Grant Alan Von Ahlefeldt, 1325 North Greenwood, Pueblo, Colorado 81003 ("Ahlefeldt") and the
City of Pueblo, a Municipal Corporation, through its Department of Aviation, 31201 Bryan Circle,
Pueblo, Colorado 81001 ("City").
Recitals
WHEREAS, City and K&N Partners, a Co-Partnership,entered into a hangar ground lease
dated March 24, 1997 for Lot No. 4 located in the General Aviation Hangar Development Area of
the Pueblo Memorial Airport and evidenced by City Resolution No. 8079 ("Hangar Ground
Lease"); and
WHEREAS, the Hangar Ground Lease was previously assigned from K & N Partners, a
Co-partnership, to Richard F. Leach, Jr., and Richard F. Leach, Jr. then assigned the Hangar
Ground Lease to Childress on September 30, 2015, evidenced by Resolution No. 13313; and
WHEREAS, the Hangar Ground Lease was amended by City and Childress through the
Amendment to Lease dated April 12, 2017; and
WHEREAS, Childress wishes to assign the Hangar Ground Lease, as amended, to
Ahlefeldt, and Ahlefeldt wishes to assume said Hangar Ground Lease, as amended; and
WHEREAS, the City consents to said assignment and Ahlefeldt's assumption of the
Hangar Ground Lease, as amended;
NOW, THEREFORE, in consideration of the foregoing recitals and the terms, conditions
and mutual promises set forth in this agreement, the parties agree as follows:
1. Assignment. Childress hereby transfers,sells,and assigns to Ahlefeldt, Childress's
right, title, and interest in and to the amended Hangar Ground Lease.
2. Assumption. Ahlefeldt accepts the assignment of the amended Hangar Ground
Lease and hereby assumes and agrees to observe, perform and otherwise discharge
when due all obligations of the amended Hangar Ground Lease a copy of which,
marked as Exhibit A, is attached hereto and incorporated herein by reference. This
shall include, but is not limited to, the making of all payments and performance of
all covenants and duties.
3. Consent. City hereby consents to the foregoing assignment and assumption of the
amended Hangar Ground Lease and City agrees to afford Ahlefeldt the same rights
under the amended Hangar Ground Lease as previously enjoyed by Childress. No
further assignment of the Hangar Ground Lease, or any part thereof, shall be made
without the prior written consent of City. Any assignment or transfer without City's
prior written consent shall be void.
4. Effective Date. This assignment shall become effective on the date set forth above.
IN WITNESS WHEREOF the parties have executed this assignment as of the Effective Date.
GRANT ALAN VON AHLEFELDT CITY OF PUEBLO
A MUNICIP• MOR'ORATION
r
By: Sam ad
City Manager
KRISSC. "
1 I ATTEST: nd ATTEST: a
Acting City Clerk
EXHIBIT A
AMENDMENT TO HANGAR GROUND LEASE
This Amendment is entered into as of the 97 day of Cij , 2018 ("Effective Date"), by
and between the City of Pueblo, Colorado, a Municipal Corporation ("Lessor"), and Grant Alan
Von Ahlefeldt, 1325 North Greenwood, Pueblo, Colorado 81003, an individual ("Lessee").
WHEREAS, Lessor and K& N Partners, a Co-Partnership, entered into a Hangar Ground
Lease dated March 24, 1997 for Lot No. 4 located in the General Aviation Hangar Development
Area of the Pueblo Memorial Airport and evidenced by City Resolution No. 8079 ("Hangar
Ground Lease"); and
WHEREAS, the Hangar Ground Lease was previously assigned from K & N Partners, a
Co-partnership, to Richard F. Leach, Jr., and Richard F. Leach, Jr. then assigned the Hangar
Ground Lease to Kriss Childress on September 30, 2015, evidenced by Resolution No. 13313; and
WHEREAS, the Hangar Ground Lease was amended by Lessor and Kriss Childress
through the Amendment to Lease dated April 12, 2017, and said amendment remains effective;
and
WHEREAS, Kriss Childress assigned the Hangar Ground Lease, as amended, to Lessee,
and Lessee assumed said Hangar Ground Lease, as amended; and
WHEREAS, Lessor and Lessee wish to further amend the Hangar Ground Lease.
NOW THEREFORE, in consideration of the foregoing recitals, and the promises and
conditions set forth below, the parties agree to amend the Hangar Ground Lease as follows:
1. A new Subsection 3(D) to the Hangar Ground Lease shall be inserted to read:
D. Should the Lessee pursue and use the leased premises for commercial purposes,
after obtaining prior written approval from the Director of Aviation, the Lessee shall pay
to Lessor additional rent at two percent (2%) of Lessee's commercial operation gross
revenue, calculated at the end of each month and paid with other rent as due prior to the
first day of the following month.
2. Section 4(C) of the Hangar Ground Lease is hereby amended in its entirety and replaced
with the following:
C. The leased premises shall be used and occupied by Lessee as a Hangar facility for
the storage of aircraft owned or leased by Lessee and for such incidental purposes directly
related to such use. Lessee shall have no right to utilize the leased premises, or any
improvement thereon, other than as specifically allowed under this subsection. The leased
premises shall not be used for any commercial purpose, unless the Director of Aviation has
provided prior written approval for the commercial purpose. Failure to obtain the Director
of Aviation's prior written approval shall be a material breach of this lease, and this lease
may be immediately terminated for such reason. The leased premises shall not be used for
any fueling operations nor any full-service FBO. The Lessee shall obtain all required
permits and licenses from federal, state, and local governments or any associated
organizations.
3. Section 4(D) of the Hangar Ground Lease is hereby amended in its entirety and replaced
with the following:
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, unless such
service or maintenance is pursuant to a commercial purpose granted prior written approval
from the Director of Aviation.
4. A new Subsection 12(E) to the Hangar Ground Lease shall be inserted to read:
E. Lessee shall obtain statutory workers' compensation insurance which shall contain
an endorsement waiving subrogation against Lessor. Workers' compensation coverage
shall be obtained notwithstanding that Lessee may have no employees as defined under
said Act or that Lessee might otherwise avail itself of an exemption under the Act from
any legal requirement to obtain such coverage. Such insurance shall cover all employees
of Lessee performing work at the leased premises or airport irrespective of whether such
employees may be shareholders, managers, partners, or owners of Lessee or exempt
employees under the Act. Lessee may purchase, for non-statutory employees, a participant
accident insurance policy which would include death, disability, dismemberment, and
medical benefits. Any independent contractors of Lessee shall be covered under Lessee's
workers' compensation insurance and/or participant accident insurance policy, or show
evidence that said independent contractor is covered under its own workers' compensation
insurance policy. Lessee shall have full and sole responsibility for ensuring compliance
with this Section, including without limitation indemnification required under this Lease.
All insurance policies required hereunder shall provide that such policies not be cancelled
or reduced without thirty (30) days' advance written notice to the Lessor. Coverage and
limits enumerated in this insurance provision represent only the minimum insurance
required by the Lessor, and Lessee should rely on its expertise to obtain any additional
insurance coverage needed for the Lessor and Lessee in its performance under this Lease.
Failure to comply with the provisions of this Section shall constitute a material breach of
this Lease by Lessee.
5. Section 17(B)(4) of the Hangar Ground Lease is hereby amended in its entirety and
replaced with the following:
(4) The sublease shall not become effective until an executed copy thereof is approved
in writing by the Director of Aviation.
6. Section 20 of the Hangar Ground Lease is hereby amended in its entirety and replaced with
the following:
All notices required to be given to Lessor hereunder shall be in writing and be sent certified
mail to Pueblo Memorial Airport, Director of Aviation, 31201 Bryan Circle, Pueblo,
Colorado 81001 with a copy to City of Pueblo, City Attorney, 1 City Hall Place, Pueblo,
Colorado 81003. All notices required to be given to Lessee hereunder shall be in writing
and sent by certified mail, addressed to Grant Alan Von Ahlefeldt, 1325 North Greenwood,
Pueblo, Colorado 81003. The parties may later designate in writing other persons or
addresses in connection with said notices. The effective date of service of any such notice
shall be the date such notice is mailed by Lessor or Lessee.
7. New subsections to Section 23 of the Hangar Ground Lease shall be inserted to read:
D. Lessee shall, at its own expense, keep the premises neat, clean, safe and orderly at
all times, free of waste, rubbish and debris, and shall provide a complete and proper
arrangement for the sanitary handling and disposal of all trash, garbage and other refuse
resulting from Lessee's activities at the Airport. Outside storage of parts, equipment,
inventory,or other materials shall be permitted at the discretion of the Director of Aviation,
but only so long as the parts, equipment, inventory, or other materials remain within the
leased premises, meet the intent of this subsection, and the Lessee follows all applicable
rules, regulations, and laws of the Lessor. Lessee understands that snow removal and
vegetation management upon the leased premises is the responsibility of Lessee.
E. Lessee agrees to indemnify, defend, and save the Lessor, it's agents, officer's
representatives and employees,harmless from and against any and all penalties, liability or
loss including costs and attorney fees resulting from claims or court action, whether civil,
criminal or in equity, and arising directly or indirectly out of (i) acts of the Lessee, his
agents, employees, or servants; (ii) occurring in on or about the leased premises; (iii)
arising out of or resulting from the leased premises, or any condition thereon, or from
Lessee's use and occupancy of the leased premises, or any equipment thereon or
appurtenances thereto, or any activity conducted therein; or (iv) through any injury or
damage that may be caused or occasioned.
F. The Lessee, as a part of the consideration hereof, does hereby covenant and agree,
as a covenant running with the land, that: (1) no person on the grounds of race, color or
national origin shall be excluded from participation in, denied the benefits of, or be
otherwise subjected to discrimination in the use of the leased premises; (2) that in the
construction of any improvements on, over,or under the leased premises and the furnishing
of services thereon, no person on the grounds of race, color, or national origin shall be
excluded from participation in, denied the benefits of, or otherwise be subjected to
discrimination; and (3) that the Lessee shall use the leased premises in compliance with all
other applicable requirements imposed by or pursuant to Title 49, Code of Federal
Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21,
Nondiscrimination in Federally-assisted programs of the Department of Transportation-
Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be
amended.
G. Nothing in this Lease is intended, nor should it be construed, to create any rights,
claims, or benefits or assume any liability for or on behalf of any third party, or to waive
any immunities or limitations conferred under federal or state law, including but not limited
to the Colorado Governmental Immunity Act, § 24-10-101 et seq., C.R.S.
H. This Lease shall be governed by the laws of the State of Colorado. Venue for any
action arising under this Lease or for the enforcement of this Lease shall be in a state court
with jurisdiction located in Pueblo County, Colorado.
8. A new Section 24 to the Hangar Ground Lease shall be inserted to read:
24. Deposit:
A. Lessee also agrees to pay a security deposit to the airport equal to two hundred fifty
dollars ($250.00). The security deposit and first month's rent shall be paid upon
execution of this agreement. Deposits shall be refunded following termination of
this agreement, less any rent due or damages to the leased premises.
B. In the event that Lessee fails, neglects or refuses to pay any rent, fee, or other sum
due, or fails to perform any obligation under this Lease,then Lessor may, in its sole
and absolute discretion, draw from the security deposit to remedy Lessee's default.
Nothing contained in this Lease shall require Lessor to remedy Lessee's default in
this manner, and Lessor may instead, in its sole and absolute discretion, refuse to
remedy Lessee's default by drawing on the security deposit, and instead pursue the
remedies for default provided in this Lease or by law.
C. In the event that Lessor draws from this security deposit to remedy Lessee's default,
Lessor shall notify Lessee in writing and require Lessee to replenish the deposit to
its original level. Failure of Lessee to comply with this section shall constitute a
material breach of this Lease.
9. A new Section 25 to the Hangar Ground Lease shall be inserted to read:
25. State-Imposed Mandates Prohibiting Illegal Aliens from Performing Work:
A. At or prior to the time this Lease is executed, Lessee shall submit to the Purchasing
Agent of Lessor its certification that it does not knowingly employ or contract with
an illegal alien who will perform work under this Lease and that the Lessee will
participate in either the "E-Verify Program" created in Public Law 208, 104th
Congress, as amended and expanded in Public Law 156, 108th Congress, as
amended, that is administered by the United States Department of Homeland
Security or the "Department Program" established pursuant to §8-17.5-102(5)(c)
C.R.S. that is administered by the Colorado Department of Labor and Employment
in order to confirm the employment eligibility of all employees who are newly hired
for employment to perform work under this Lease.
B. Lessee shall not:
(1) Knowingly employ or contract with an illegal alien to perform work
under this Lease;
(2) Enter into an agreement with a subcontractor that fails to certify to
Lessee that the subcontractor shall not knowingly employ or contract
with an illegal alien to perform work under this Lease.
C. The following state-imposed requirements apply to this Lease:
(1) The Lessee shall confirm the employment eligibility of all employees
who are newly hired for employment to perform work under this
Lease through participation in either the E-Verify Program or
Department Program.
(2) The Lessee is prohibited from using either the E-Verify Program or
Department Program procedures to undertake pre-employment
screening of job applicants while this Lease is being performed.
(3) If the Lessee obtains actual knowledge that a subcontractor
performing work under this Lease knowingly employs or contracts
with an illegal alien, the Lessee shall:
(a) Notify the subcontractor and the City's Purchasing Agent within
three (3) days that the Lessee has actual knowledge that the
subcontractor is employing or contracting with an illegal alien; and
(b) Terminate the subcontract with the subcontractor if within three (3)
days of receiving the notice required pursuant to subparagraph
C(3)(a) above the subcontractor does not stop employing or
contracting with the illegal alien; except that the Lessee shall not
terminate the agreement with the contractor/subcontractor if, during
such three (3) days, the contractor/subcontractor provides
information to establish that the contractor/subcontractor has not
knowingly employed or contracted with an illegal alien.
(4) The Lessee is required to comply with any reasonable request by the
Colorado Department of Labor and Employment(hereinafter referred
to as "CDLE") made in the course of an investigation that CDLE is
undertaking pursuant to its authority under §8-17.5-102(5), C.R.S.
D. Violation of this Section by the Lessee shall constitute a breach of Lease and
grounds for immediate termination. In the event of such termination, the Lessee
shall be liable for Lessor's actual and consequential damages.
E. As used in this Section, the terms "contractor"and "subcontractor" shall mean any
contractor or subcontractor of Lessee rendering services within the scope of this
Lease.
10. A new Section 26 to the Hangar Ground Lease shall be inserted to read:
26. Environmental Provisions:
A. For the purpose of this Lease, "Hazardous Materials"means any hazardous or toxic
substance, material or waste which is or becomes regulated by any local
government authority, the State of Colorado or the United States government and
shall include, but not be limited to: (i) substances defined as "hazardous waste,"
"restricted hazardous waste," "hazardous substance" or "hazardous material"
under any applicable federal, state or local law or regulation ("Environmental
Regulations"); (ii) asbestos-containing materials; (iii) PCBs; (iv) petroleum or
petroleum based products; and (v) lead.
B. Lessee will comply with Environmental Regulations that are applicable to Lessee
and its use of the leased premises. No activity shall be undertaken by Lessee, its
guests, employees, agents, contractors or subcontractors, on all or any portion of
the leased premises which would cause or permit: (i) the presence, use, generation,
release, discharge, storage or disposal of any Hazardous Material in, on, under,
about, or from the leased premises or any part thereof in violation of any
Environmental Regulations; (ii) any portion of the leased premises to become a
hazardous waste treatment, storage or disposal facility without receiving proper
governmental authorization, and in compliance with all Environmental
Regulations; or (iii) the discharge of pollutants or effluents into any water source
or system, or the discharge into the air of any emissions without receiving proper
governmental authorization, and in compliance with all Environmental
Regulations, including, without limitation, the Federal Water Pollution Control
Act, U.S.C. Section 1251 et seq. and the Clean Air Act, 42 U.S.C. Section 7401 et
seq.
C. Lessee agrees to defend, indemnify and forever hold harmless Lessor, and its
officers, employees, agents, successors, and assigns, from all claims, losses,
damages, penalties, expenses and costs, including, but not limited to, attorneys'
fees, characterization, remediation and cleanup costs, incurred by reason of the use,
storage, generation, release, discharge, maintenance, disposal, or removal of
Hazardous Materials in, on, under, about, or from the leased premises, or any part
thereof, by Lessee, its employees, agents, guests, contractors and subcontractors.
11. The parties hereto further agree that nothing contained within this Amendment alters or
modifies any other paragraphs or provisions of the Lease.
IN WITNESS WHEREOF the parties have executed this amendment as of the Effective Date.
ATTEST: CITY OF PUEBLO,
A MUNICIPAL CO)PORATION
By (1 ji ,a By_,- '�j '�^-✓
City Clerk `1 City anager
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Printed Name Sam Azad
GRANT ALAN VON AHLEFELDT
By
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