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HomeMy WebLinkAbout08969ORDINANCE NO. 8969 AN ORDINANCE APPROVING A LEASE AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND PUEBLO COUNTY FOR LAND AND STRUCTURES LOCATED AT THE PUEBLO MEMORIAL AIRPORT, AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME, BE IT ORDAINED 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 Pueblo County, to lease land and structures located at Pueblo Memorial Airport, 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. SECTION 3. The officers and staff of the City are directed and authorized to perform any and all acts consistent with the intent of this Ordinance to effectuate the policies and procedures described therein. SECTION 4. This Ordinance shall become effective immediately upon final passage and approval. INTRODUCED February 8, 2016 BY: Ed Brown PASSED AND APPROVED: February 22, 2016 City Clerk’s Office Item # R-3 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: February 8, 2016 TO: President Stephen G. Nawrocki and Members of City Council CC: Sam Azad, City Manager VIA: Gina Dutcher, City Clerk FROM: John Vigil – Aviation Department SUBJECT: AN ORDINANCE APPROVING A LEASE AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND PUEBLO COUNTY FOR LAND AND STRUCTURES LOCATED AT THE PUEBLO MEMORIAL AIRPORT, AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME, SUMMARY: Pueblo County has leased land and structures at the Airport since 1975 and the Lease Agreement before City Council for approval will allow the County to continue to utilize that space. PREVIOUS COUNCIL ACTION: The City entered into a Lease Agreement with the Pueblo Civil Defense Agency operated by Pueblo County on December 10, 1975 under Resolution No. 3686. The lease was for 20 years with an option to renew for 20 years expiring December 10, 2015. BACKGROUND Pueblo County has been leasing the land and structures since 1975 for office space and the storage of materials and equipment. The existing lease expired on December 31, 2015. The County has continued in possession of the property. This new lease is for 20 years with an option to extend for two additional 10 year terms. If approved, the effective date of the lease is January 1, 2016 in order to reflect the continued possession of the property by the County. The current lease rate is $0.00. The lessor pays the Industrial Park combined service fee. FINANCIAL IMPLICATIONS: Lessor will pay to the City the Industrial Park combined service fee. The combined service fee for this lease in 2016 is $499.92. The annual fee is subject to review and revision should the City’s costs for providing the services change. BOARD/COMMISSION RECOMMENDATION: None. STAKEHOLDER PROCESS: None. ALTERNATIVES: If City Council does not approve the Lease Agreement, the County will be given the option of renegotiating the lease to meet City Council’s approval or to vacate the premises. RECOMMENDATION The Department of Aviation recommends the approval of the Ordinance and Lease Agreement. Attachments: Lease Agreement PUEBLO MEMORIAL AIRPORT LEASE AGREEMENT This Lease Agreement is entered into as of the last date signed below but shall be effective the 1st day of January, 2016, between the City of Pueblo, a Municipal Corporation, herein called Lessor, and - Pueblo County, herein called 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 on said Airport property for the purpose of storing materials and equipment, offices, meetings and training. NOW THEREFORE,in consideration of the mutual covenants set forth herein,the parties agree as follows: 1. LEASED PREMISES Lessee hereinafter set forth, said Lessor has and does hereby lease unto the said Lessee the following described premises ("Leased Premises")at the Pueblo Memorial Airport, hereinafter called Airport, in the County of Pueblo, State of Colorado, to wit: THE SOUTH ONE-HALF OF PARCEL "B", BLOCK 1, AS SHOWN ON THE ATTACHED EXHIBIT"A". SAID PARCEL CONTAINS 1.045 ACRES, MORE OR LESS The term"Leased Premises", as used in this Lease, means and includes the real property and structures currently on the Leased.Premises as well as any improvements hereafter constructed or added thereto. 2. TERM The term of this Lease is for a period of twenty (20) years, commencing at 12:00 p.m. noon January 1, 2016 and terminating at 12:00 p.m. noon January 1, 2036. The term of this Lease may be extended for two additional ten (10) year periods at the sole and absolute discretion of the City of Pueblo and upon rental and other conditions mutually agreeable to Lessor and Lessee. To exercise the option to extend, Lessee must notify Lessor of its desire to extend the Lease at least one hundred and twenty (120) days prior to the existing term of the Lease. 3. RENT AND FEES A. Lessee shall pay to Lessor as rent for the Leased Premises an amount of $0.00 per month,payable in advance without notice,offset or deduction on or before the tenth day of each calendar month throughout the effective term, at a place to be designated by the Lessor. B. In addition to the monthly rent, Lessee shall pay for the use of the services and facilities provided by Lessor at the Airport, namely, sewage disposal, street maintenance, fire 1 protection and street lights, the annual fee of$499.92 payable annually prior to January 31st of each year, or in monthly installments of$41.66, in advance without notice,offset or deduction on orbefore the tenth day of each calendar month throughout the effective term, at a place to be designated by the Lessor. The annual fee for the first year of this Lease in the amount of$499.92 shall be due on or before March 31, 2016. The annual fee shall be subject to review and revision annually during the original or any renewal term of the Lease. The increase or decrease, if any, adjustment in annual fee shall be determined by the increase or decrease in Lessor's cost of providing the services herein specified. Lessor shall notify Lessee of any increase in the annual fee at least thirty(30) days prior to the effective date of any such increase. 4. RIGHTS AND PRIVILEGES OF LESSEE A. Lessee shall use the Leased Premises for materials warehousing, offices, meetings, training,equipment parking,maintenance and storage and for no other purposes. Lessee shall not assign nor sublet the Leased Premises without the prior written approval of the Lessor, which may be granted or denied at Lessor's sole and absolute discretion. B. Lessee, its employees and invitees shall have the right to ingress and egress between the main entrance of the airport as the same now exists or may hereafter be relocated and the Leased Premises over, upon and through such streets and no other as from time to time shall be designated by the Director of Aviation. Driveways from existing streets into the lease premises shall be located as designated by the Director of Aviation. 5. RIGHTS AND PRIVILEGES OF LESSOR A. All rights not herein granted to the Lessee are reserved to Lessor and nothing herein contained shall be construed to grant or authorize the granting or an exclusive right within the meaning of Section 308 of the Federal Aviation Act of 1958. B. Lessor shall have full and unrestricted right to enter upon those portions of the Airport occupied and leased herein by the Lessee, and Lessor, its agents or representatives shall be permitted to inspect same at any reasonable hour. Lessee shall have full and unrestricted right to enter upon the Leased Premises for the purpose of maintaining sewer service to the Leased Premises, street maintenance, street light maintenance and fire protection. C. Lessor reserves the right to maintain and keep in repair the landing area of the Airport and all publicly owned facilities of the Airport but shall not be obligated to the Lessee for any failure to so maintain or keep in repair. D. There is hereby reserved to the Lessor,it's successors and assigns,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 premises hereby leased,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 of or flight in the air, using such airspace or landing at, taking-off from, or operating on Pueblo Memorial Airport. 2 E. It is further understood and agreed that this agreement is subject to written prior approval of the Federal Aviation Administration and that the provisions hereof cannot be modified without prior written approval by said Federal Aviation Administration. 6. OBLIGATIONS OF LESSEE A. Lessee shall, at its own and sole expense, maintain and keep the Leased Premises and any improvements presently existing or hereafter constructed thereon to include all heating, air conditioning, electrical and plumbing systems in good condition, appearance, and state of repair. If Lessee should fail to keep and maintain the Leased Premises or improvements thereon in such good order and repair as is reasonably required, Lessor may enter the Leased Premises, without such entering causing or constituting a termination of the Lease, or an interference with the possession of the premises by Lessee, and perform the necessary maintenance or repairs to the Leased Premises to the condition required by the Lessor and the costs of such maintenance or repairs shall be paid by Lessee to the Lessor in addition to rent. B. The Lessee shall, at its own and sole 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. No outside storage of parts, materials, equipment, inventory, or other material shall be permitted upon the Leased Premises unless attractively screened from public view. C. Lessee shall furnish, at its own and sole expense, and promptly pay for all utilities. D. Lessee shall fence non-public areas from public areas within the Leased Premises and police said non-public areas within the Leased Premises, keeping unauthorized persons or vehicles out of the same. Lessee shall adequately fence any additional areas of the Leased Premises as may be requested by the Lessor. E. Lessee agrees, except as may be otherwise provided in other contracts entered into between the Lessor and Lessee, not to engage in any business at the Airport other than that which is expressly authorized herein. F. To the extent permitted by law, the Lessee agrees to indemnify, defend, and save the Lessor, it's agents, officers, 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 acts of the Lessee, his agents, employees, invitees, or servants in connection with its use or occupancy of the Leased Premises, or through any injury or casualty occurring on the Leased Premises. G. All risk of loss or damage to vehicles, equipment, aircraft or other personal property in or upon the Leased Premises is assumed by Lessee, and Lessor shall not be liable or responsible for any loss or damage to such vehicles, equipment, aircraft and other personal property regardless of the cause thereof, including, without limitation, the negligence of Lessor, its officers, agents or employees. 3 H. 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 comprehensive general public liability insurance which includes personal injury, products 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 in an amount equal to their full insurable value naming Lessor as a loss payee. Lessee 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 Leased Premises, structures and property thereon, 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. I. Such polices must include a special endorsement waiving subrogation and providing that the policies will 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. 7. 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 fees,rent,additional rent,or any expenses incurred for the benefit of Lessee or this Lease for a period of thirty(30)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. B. In the case of the 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 thirty (30) days prior written notice given to Lessee specifying the date of termination and Lessee shall within said thirty (30) day period vacate the Leased Premises and surrender possession thereof to Lessor. (2) Without terminating this Lease, retake possession of the Leased Premises and relet the Leased Premises 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 Leased 4 Premises 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. 8. GENERAL CONDITIONS A. The terms and conditions of this lease and Lessee's rights hereunder are hereby made subject to the provisions of Title III Chapter 1 of the Pueblo Municipal Code and as same may be subsequently amended. In the event of conflict between said Code and any provision herein, said Code shall control. B. The Lessee in the operations to be conducted pursuant to the provisions of this lease and otherwise in the use of the Airport, will not discriminate or permit discrimination against any person or class of persons by reason of race,color,religion,sex,or national origin in any manner prohibited by Part 21 of the Regulations of the Office of the Secretary of Transportation,or any amendments thereto. The Lessor reserves the right to take such action as the United States Government may direct to enforce this covenant. C. The Lessee by accepting this lease expressly agrees that it will not make use of the Leased Premises in any manner which might interfere with the landing and taking-off of aircraft from Pueblo Memorial Airport or otherwise constitute a hazard. In the event the aforesaid covenant is breached, the Lessor reserves the right to enter upon the premises hereby leased and cause the abatement of such interference at the expense of the Lessee. D. This lease and all the provisions hereof are subject to all rights the United States Government now has or in the future may have or acquire, affecting the control, operation, regulation, re-entry upon and taking over of the said Airport including the Leased Premises. E. The Lessee shall observe faithfully all rules and regulations affecting use of the Airport,whether established by the Director of Aviation,by the City,or other political subdivision having jurisdiction, by the State of Colorado or the United States, or agencies thereof, including but not limited to rules affecting the operation of motor vehicles upon, to and from the Airport. F. The Lessee,and all officers,agents and employees of Lessee,hereby agree to be bound by and subject to all the Police Ordinances of Pueblo, a Municipal Corporation, at all times while on the Airport, whether acting in the course of Lessee's business or otherwise. G. The Lessee represents that it has inspected the Leased Premises, the Airport and all of its premises and facilities and that it accepts the conditions of same and fully assumes the risk incident to the use thereof. Lessee acknowledges and agrees that the Leased Premises are being leased in the present condition,"AS IS WITH ALL ITS FAULTS" 5 without warranty or representation of any kind, express or implied including, without limitation, any warranties of fitness for a particular purpose. The Lessor shall not be liable to the Lessee for any damages or injuries to the property or personnel of the Lessee which result from hidden, latent or other dangerous conditions on the Airport or Leased Premises. H. Lessee agrees that no inflammable liquids or hazardous materials shall be used or stored in the premises, except the fuel in the vehicles or equipment stored on the premises. It is expressly understood that no person other than the Lessee or his regular employee may perform services (including, but not limited to, maintenance and repair) on any aircraft, vehicles or equipment on the Leased Premises. J. Lessee agrees to provide drip pans for all non-inflammable material under all vehicles, equipment or aircraft to prevent damage to the floor from dripping oil or fluid. K. It is expressly understood by Lessee that security in the hangar area as elsewhere on the Airport is vital. Only Lessee, its employees, agents, representatives and invitees will be permitted in the area and Lessee shall be responsible for the actions of these people. Violations of Airport Security Rules shall be sufficient grounds for termination of this agreement. 9. MISCELLANEOUS PROVISIONS A. 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. That no assent, expressed or implied, to any breach of any one or more of the covenants and agreements hereof, shall be deemed or taken to be a waiver of any succeeding or other breach. Should Lessee hold over the use of or continue to occupy the Leased Premises after the termination or cancellation of this Lease, such holding over shall be deemed merely a tenancy for successive monthly terms upon the same conditions as provided in this Lease subject to termination upon thirty (30) days prior written notice. B. In the event of any litigation arising out of this Lease, the court shall award to the prevailing party its costs and expense, including reasonable attorney fees. The law of Colorado shall control and venue for any such litigation shall be Pueblo County, Colorado. C. If any provision of this Lease or the application thereof to any person or circumstance is, at any time or to any extent, invalid or unenforceable, the remainder of this Lease will not be affected thereby, and each such provision will be valid and will be enforced to the fullest extent permitted by law. D. This Lease contains the entire and exclusive agreement between the parties relating to the Leased Premises, and may not be modified except by written instrument signed by the party to be bound thereby. 6 E. Neither Party shall be, or hold itself out as, agent of the other or as joint venturers or partners under this Agreement. F. Each Party acknowledges that this Agreement was fully negotiated by the Parties and, therefore, no provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision. G. The provisions of this Agreement are for the exclusive benefit of the Parties hereto and their successors and permitted assigns, and no third party shall be a beneficiary, or have any rights by virtue of this Agreement. H. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed for all purposes to be an original,and all such counterparts shall together constitute but one and the same original. I. Whether or not specifically noted within any section or provision of this Lease, any provision of this Lease which must survive termination of this Lease in order to be effective will so survive such termination. J. Nothing in this Section 13 or any other section of this Lease Agreement shall be construed or interpreted as a waiver of any rights or protections afforded to the Lessor under the Colorado Governmental Immunity Act, C.R.S. 24-10-101, et seq. which rights and protections are expressly reserved. Executed at Pueblo, Colorado. LESSOR: LESSEE: Pueblo, a Municipal Corporation Pueblo County, Colorado al."11111P r B By Preen of City Council Board of County Commissioners Date: 02 a- 0 / G. Date: - 4441A- 1 to ATTEST: ATTEST: By c By /c C Clerk County Clerk APPROVED AS TO FORM: APPROVED AS TO FORM: By >Gt/h/tA-11. .. ,[1- d .Q --' By City Attorney / County Attorney