HomeMy WebLinkAbout13949RESOLUTION NO. 13949
A RESOLUTION APPROVING A SELF-SERVE FUELING
OPERATION GROUND LEASE BETWEEN THE CITY OF
PUEBLO, A MUNICIPAL CORPORATION, AND SIBRAN
PROPERTIES, LLC, A COLORADO LIMITED LIABILITY
CORPORATION, AND AUTHORIZING THE PRESIDENT OF
CITY COUNCIL TO EXECUTE SAME
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO THAT:
SECTION 1.
A certain Ground Lease, 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 Sibran Properties, LLC, a Colorado
Limited Liability Corporation, is hereby approved, subject to the conditions as set forth in
said Ground Lease.
SECTION 2.
The President of City Council is hereby authorized to execute the Ground Lease
on behalf of the City of Pueblo, a Municipal Corporation, and the City Clerk is directed to
affix the Seal of the City thereto and attest 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 Resolution and the attached Ground Lease to
effectuate the transactions described therein.
SECTION 4.
This Resolution shall become effective immediately upon final passage and
approval.
INTRODUCED: April 23, 2018
BY: Ed Brown
MEMBER OF CITY COUNCIL
APPROVED:
PRESIDENT OF CITY COUNCIL
ATTESTED BY:
ACTING CITY CLERK
City Clerk’s Office Item # M-1
Background Paper for Proposed
Resolution
COUNCIL MEETING DATE:
April 23, 2018
TO: President Christopher A. Nicoll and Members of City Council
CC: Sam Azad, City Manager
VIA: Brenda Armijo, Acting City Clerk
FROM: Ian Turner, Director of Aviation
SUBJECT: A RESOLUTION APPROVING A SELF-SERVE FUELING OPERATION
GROUND LEASE BETWEEN THE CITY OF PUEBLO, A MUNICIPAL
CORPORATION, AND SIBRAN PROPERTIES, LLC, A COLORADO
LIMITED LIABILITY CORPORATION, AND AUTHORIZING THE
PRESIDENT OF CITY COUNCIL TO EXECUTE SAME
SUMMARY:
Attached for consideration is a Self-Serve Fueling Operation Ground Lease (“Ground
Lease”) between the City of Pueblo, a Municipal Corporation, and Sibran Properties, LLC,
a Colorado Limited Liability Corporation.
PREVIOUS COUNCIL ACTION:
On February 25, 2002, City Council approved a 10-year lease with Airport Properties, Inc.
to construct, install, and operate a self-serve fueling station at the airport. On December
27, 2005, City Council consented to the assignment of the lease to Sibran Properties,
LLC.
BACKGROUND
Airport Properties, Inc., entered into a ground lease to install a 100LL aviation fuel tank
and credit card self service dispensing system at the airport. In 2005, Sibran Properties
purchased the improvements from Airport Properties and the City consented to the
assignment of the lease to Sibran Properties. The assigned lease was for 10 years with
an option for an additional 10 years. The initial term ended on February 25, 2012 and
Sibran Properties did not exercise its 10-year lease extension. Therefore, Sibran
Properties has been operating on a month-to-month basis.
The attached Lease supersedes in its entirety the previous lease and is for a 5-year term
commencing April 1, 2018 and ending on March 21, 2023. The Lease term may be
extended through January 31, 2027 upon the mutual agreement of all parties.
FINANCIAL IMPLICATIONS:
The following rents and fees will be charged under this lease:
$820.98 annually for 5,046 sq. ft. of land at the rate of $0.1627 per sq. ft to be
adjusted per CPI-U yearly on the anniversary of the commencement date.
$100.92 annually for 2,320 sq. ft. of non-exclusive apron space to be adjusted per
CPI-U yearly on the anniversary of the commencement date.
A 2% commission of monthly gross revenues derived from all sales, operations,
and services made, furnished, or conducted on or from the Leased Premises and
Apron, with the exception of revenue derived from the sale and dispensing of
aviation fuel.
Fuel flow fees for each gallon of fuel delivered to the fuel storage facilities on the
leased area will be charged as follows:
$0.083 for each gallon up to one million gallons.
$0.073 for the next 500,000 gallons up to one million five hundred thousand
gallons.
$0.063 for each gallon over one million five hundred thousand gallons.
The fuel flowage fees will be adjusted per CPI-U yearly on the anniversary
of the commencement date.
The Combined Service Fee will be $57.91 annually based on .11584 acres
at the rate of $499.92 per acre annually.
BOARD/COMMISSION RECOMMENDATION:
None.
STAKEHOLDER PROCESS:
None.
ALTERNATIVES:
The improvements on the land to be leased belong to Sibran Properties. If City Council
does not approve the ground lease, Sibran Properties will be required to remove the
improvements from the land pursuant to the provisions of the February 25, 2002 lease.
RECOMMENDATION
The Department of Aviation recommends the approval of this lease.
Attachments:
Self-Serve Fueling Operation Ground Lease
SELF-SERVE FUELING OPERATION GROUND LEASE
THIS LEASE made and entered into as of April 23 , 2018 between the
City of Pueblo, a Municipal Corporation, "Lessor",and Sibran Properties, LLC, "Lessee."
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 apron space on
said Airport property for the purpose of storage, selling, and dispensing of aviation fuel;
and
WHEREAS, Lessor and Airport Properties, Inc., a Texas Corporation, entered into
a prior Credit Card Self-Serve Fueling Operation Ground Lease dated February 25, 2002
("Prior Lease"), as amended, which was effectively assigned to Lessee on December 19,
2005; and
WHEREAS, the Prior Lease expired on February 25, 2012 and is superseded in its
entirety by this Lease.
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,the real property of5,046
square feet shown on Exhibit "A", attached hereto and made a part hereof, situated
in the County of Pueblo, State of Colorado. The term "Leased Premises", as used
in this Lease, means and includes the real property described above as well as any
improvements hereafter constructed or added thereto.
Subject to Section 7, Lessor hereby leases to Lessee 2,320 square feet of apron
space, marked"Apron"on the plot plan for its non-exclusive use. The term"Apron"
means and includes the area marked "Apron" on attached Exhibit "A." The parties
agree that the Apron area is commensurate with the amount of space needed for a
single aircraft to be fueled.
The Leased Premises and Apron 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 for a period of five (5) years commencing April 1, 2018
("Commencement Date")and ending on March 21, 2023, unless sooner terminated
as herein provided. The term of this Lease may be extended through January 31,
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2027 upon the mutual agreement of the parties evidenced by a signed written
agreement. This Lease may only otherwise be extended upon express written
agreement of the parties. All conditions and covenants contained herein shall
remain in full force and effect during any extension period.
3. Fee and Other Charges:
A. Lessee shall pay rent to the Lessor for the ground lease herein granted a sum
per month equal to one-twelfth (1/12) of the initial annual rent during the
original term, payable in advance without notice, offset or deduction, and
shall be due monthly on the first day of each month at the Director of
Aviation's Office. The commencement date of this Lease, as set forth in
paragraph 2, Term, shall be the date upon which rent begins. The initial
annual amount is eight hundred twenty dollars and ninety-eight cents
($820.98), calculated by multiplying the gross leased land area by $0.1627
per square foot. The amount of rent the Lessee pays will be adjusted based
upon the consumer price index for all urban consumers, CPI-U (all items
1982-1984 = 100). The rent shall be adjusted yearly on the anniversary of
the commencement date of this Lease and each year increment of any
extended term. The rent will be increased or decreased by a percentage
equal to the percentage increase or decrease in the CPI-U published for
February of the then current year over the comparable CPI-U published for
February of the preceding year. The new rent rate shall be rounded to the
nearest ten-thousandth of a dollar. Any rent overdue for more than thirty
(30) days will have an additional fee added to cover extra administrative
costs. The additional fee will equal ten percent (10%) of the gross amount
of all overdue rents. In the event the Lessor initiates any proceedings to
collect any unpaid rent from Lessee or to enforce any other provision of this
Lease, Lessee shall pay all of the Lessor's expenses in connection therewith,
including reasonable attorney's fees.
B. Lessee shall pay to Lessor monthly rent for the non-exclusive commercial
use of the Apron in the sum of eight dollars and forty-one cents ($8.41)per
month. The apron use fee shall be adjusted based on the CPI-U in the same
manner as rent is adjusted under paragraph 3(A) above. In addition, Lessee
shall pay a monthly fee to Lessor for the Lease herein granted of two percent
(2%)of Lessee's monthly gross revenues derived from all sales, operations
and services made, furnished, or conducted on or from the Leased Premises
and Apron, with the exception of revenue derived from the sale and
dispensing of aviation fuel.
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C. Lessee shall also pay as rent and for the privilege to sell or dispense aviation
fuel from the Leased Premises a monthly fuel flow fee of eighty-three
thousandths of a dollar($0.083), starting with the Commencement Date and
each month thereafter for each gallon of aviation fuel delivered, or caused
to be delivered by Lessee to Lessee's fuel storage facilities on the Leased
Premises. The fuel flowage fee shall be adjusted based upon the volume of
aviation fuel delivered each calendar year as follows:
Eighty-three thousandths of a dollar ($0.083) for each gallon up to
one million(1,000,000) gallons;
Seventy-three thousandths of a dollar ($0.073) for the next five
hundred thousand gallons (500,000), up to one million five hundred
thousand (1,500,000) gallons;
Sixty-three thousandths of a dollar($0.063)for each gallon over one
million five hundred thousand (1,500,000) gallons;
Lessee shall submit with each payment of the fuel flowage fee a report of
all fuel delivered and calculation of the fuel flowage fee on forms to be
approved by the Director of Aviation. The fuel flowage report shall be
delivered to the office of the Director of Aviation. If the fuel flowage fee is
not timely paid and/or the report not timely filed, Lessee shall pay a late fee
equal to ten percent (10%)of the unpaid fuel flowage fee. The fuel flowage
fee shall be adjusted based on the CPI-U in the same manner as rent is
adjusted under paragraph 3(A) above.
D. Lessee shall pay a combined service fee for services and facilities now
furnished by the Lessor at the Pueblo Memorial Airport, namely: public
street maintenance, fire protection and Street lighting based upon the
amount established by Lessor, which is currently forty-one dollars and
sixty-six cents ($41.66) per acre per month. The Lessor may, from time to
time and in its sole discretion, reduce, alter, or eliminate any or all of the
services or facilities presently being furnished and may modify, increase, or
decrease the annual combined service fee therefore and the manner by
which it is calculated, including making separate charges, in compliance
with the Pueblo Municipal Code. Only domestic waste-water shall be
discharged from the leased premises to Lessor's sanitary sewer system.
Lessee shall be subject to the same restrictions, conditions, fees and charges
as other users of Lessor's sanitary sewer system.
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E. Rent, fees, and other charges shall be paid monthly without notice, offset or
deduction on or before the tenth(10th) of the following month at the City of
Pueblo's Director of Aviation's office and shall be accompanied with such
reporting forms as the Director of Aviation shall determine. Lessor shall
have the right to examine and audit Lessee's and its subtenant's books and
records to determine the accuracy of the fees and their calculation.
F. All unpaid rent, fees, or other charges shall accrue interest at the rate of ten
percent (10%) per annum.
4. Improvements and Use:
A. The Leased Premises shall be used and occupied by Lessee solely for the
storage, sale, and dispensing of self-serve aviation fuel.
B. Lessee shall maintain the Leased Premises, and any improvements thereon,
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 Airport 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. The storage and accumulation of
aviation fuel, flammables,explosive liquids,or solids, waste, debris or other
hazardous materials within or on the Airport 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 Leased Premises improvements in accordance with plans
and specification approved by Lessor, 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 Leased Premises
whether now existing or hereafter constructed without the prior written
approval of Lessor, which approval shall not be unreasonably or arbitrarily
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denied or withheld. Lessee may paint any improvements upon the Leased
Premises and the fuels tanks with the prior approval of Lessor.
D. Lessee shall cause all utilities to be used by Lessee to be extended
underground to the Leased Premises within easements and locations to be
designated by Lessor. Lessee grants to Lessor the right to enter the Leased
Premises to do what is necessary for the purposes of repairing, replacing,
and/or maintaining any and all utility lines under the Leased Premises which
serve other uses at the Airport, it being understood that Lessor will repair,
in a good and workmanlike fashion, any and all damage done to the Leased
Premises as the result of utility work done hereunder.
E. The Leased Premises shall be used and occupied by Lessee as a self-serve
fueling and storage facility. Lessee shall have no right to utilize the leased
premises, or any improvement thereon, other than as specifically allowed
under this subsection. Except for the operation of a self-serve fueling and
storage facility, no aircraft service or maintenance shall be performed on
the leased premises.
F. Lessee shall not park or leave, or allow to be parked or left, aircraft on the
taxiways or on pavement adjacent to the public apron area or the leased
premises in a manner which interferes with or obstructs access to adjacent
property or the public apron area. Parking of automobiles will be permitted
only in paved designated parking areas.
5. Maintenance Obligation:
Lessee, at its expense, shall keep the Leased Premises, improvements, and utilities
extended to the Leased Premises, in good repair and condition, and in a safe,
sanitary, orderly, and sightly condition.
6. Title to Improvements:
The existing improvements located upon the Leased Premises,and later constructed
or erected hereunder by Lessee shall be deemed movable trade fixtures. Upon
completion of future improvements, fee simple title to such improvements shall
vest with the Lessee.
If, during the term of this Lease and any extension, Lessee desires to sell, assign or
convey all the improvements located upon the Leased Premises, or if Lessee desires
to terminate or otherwise discontinue the Lease, Lessee shall first offer in writing
to sell, convey or assign the same to Lessor upon the price, terms and conditions
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Lessee would be willing to accept in a good faith arms-length sale to a third party
("Offer"). Lessor shall have thirty(30) days after receipt of the Offer to accept the
Offer. If Lessor does not accept the Offer in writing within said thirty (30) day
period, Lessee may sell the improvements to a third party free of Lessor's right of
first refusal granted by this section, but not at a price less than, nor upon terms and
conditions more favorable than those contained in the Offer. If Lessee sells all the
improvements to Lessor, this Lease shall terminate. If Lessee sells all the
improvements to a third party, Lessee shall remain obligated and liable under this
Lease.
7. Apron:
A. Lessee shall use the leased Apron in compliance with Lessor's ground
traffic and aircraft parking plans and regulations. Lessee shall not use
common area apron space for temporary parking of aircraft, except on
designated tie-downs, nor shall Lessee perform servicing of aircraft on
common area apron. Fueling of aircraft shall be conducted within that
portion of non-exclusive Apron area described in Section 1 and depicted on
Exhibit A. Any other use of common area apron space shall only be allowed
by the express written consent of the Lessor.
B. Lessee accepts the Apron 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 Apron.
C. For the portion of the Apron leased for its non-exclusive use, Lessee shall
maintain the surface of the Apron free and clear of debris, snow, sand and
ice and shall be responsible to remove same from the Apron as soon as
reasonably possible in order for the Apron to be continuously available for
use.
8. Signs:
Lessee shall not erect, paint or maintain any signs whatsoever upon the Leased
Premises without first securing the written consent of Lessor,which may be granted
or denied in the sole and absolute discretion of the Lessor. Any such signs shall
comply with all ordinances and regulations of Lessor or standards which might be
developed by the Lessor's Department of Aviation.
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9. Right of Inspection:
Lessor reserves and retains for its officers, employees and authorized
representatives the right to enter the Leased Premises during reasonable business
hours,and after prior notice, for the purpose of inspecting and protecting the Leased
Premises, and for doing any and all things which Lessor may deem necessary for
the proper general conduct and operation of the Airport, and in the exercise of
Lessor's police power.
10. Taxes and Licenses:
Lessee covenants and agrees to pay promptly all valid taxes and other government
charges of whatever nature assessed against or applicable to the Leased Premises,
improvements, Lessee, or Lessee's property or operations thereon. Lessee also
covenants and agrees not to permit any mechanic's or material man's lien to be
filed against the Leased Premises, Apron or improvements, or any part or parcel
thereof by reason of any work or labor performed or materials furnished by any
contractor, subcontractor, mechanic or material man. If Lessee fails to do so,
Lessor may pay the amount or take such other action as Lessor deems necessary
to remove such claim, lien or encumbrance, without being responsible for
investigating the validity thereof. The amount so paid and costs incurred by the
Lessor will be deemed additional rent under this Lease payable upon demand,
without limitation as to other remedies available to Lessor. Lessee further
covenants and agrees to pay promptly when due all bills, debts and obligations
incurred by it in connection with its operations on the Leased Premises, Apron and
improvements, and not to permit the same to become delinquent and to suffer no
lien, mortgage, judgment or execution to be filed against the Leased Premises,
Apron or improvements which will be in any way an impairment of the rights of
Lessor under this Lease Agreement.
11. Indemnification:
Lessee assumes the risk of loss or damage to the Leased Premises and property
thereon, including improvements, and on the Apron, 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,
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including the Leased Premises, Apron and improvements. The provision of this
Section shall survive the termination of this Lease.
12. 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 and property damage with a combined single limit of not
less than one million dollars ($1,000,000.00), endorsed to add as additional
insureds the Lessor and its officers, employees and agents. Such policy
shall state that the insurance is primary in coverage to any other insurance
which may be available to Lessor. Lessee shall insure the structures and
other improvements,in an amount equal to their full insurable value. 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, including
aircraft, Lessee releases Lessor, it's officers, agents, and employees from
any claim or liability Lessee may have on account of such loss and waives
any right of subrogation which might otherwise exist in or occur to any
person on account thereof.
B. Such polices must include a special endorsement 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.
C. Lessee shall not violate the terms or prohibitions of any insurance policy
herein required to be furnished.
D. If the structures or other 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 Leased Premises to their original condition, and
terminate this Lease; 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
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with applicable laws and codes, and in accordance with plans and
specifications therefore approved by Lessor, which approval will not be
unreasonably withheld.
E. Nothing in this Lease 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.
F. So long as Lessee uses fuel tanks for storage of aviation fuel, Lessee shall
be responsible for adequate storage tank pollution liability insurance.
13. Waivers:
No provision of this Lease may be waived except by an agreement signed by the
waiving party. A waiver of any term or provision shall not be construed as a waiver
of any other term or provision. Should Lessee hold over the use of or continue to
occupy the leased premises after the termination or cancellation of this Lease, 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.
14. Inconvenience During 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 of such 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.
15. Place and Manner of Payments:
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In all cases where Lessee is required by this Lease to pay any rentals, rates, fees or
other charges or to make other payments to Lessor, such payments shall be made
at the office of the Director of Aviation at the Airport, 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.
16. Assignments and Subletting:
Lessee shall not assign, sublet, or transfer this Lease or the Leased Premises in
whole or in part without the prior written consent of Lessor, which consent shall
not be unreasonably or arbitrarily withheld, delayed, or denied. Any assignment or
transfer without the prior written consent of Lessor shall be void. No assignment,
subletting or transfer of this Lease or the leased premises shall release or discharge
Lessee from any of its obligations under this Lease.
17. 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.
18. 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, or other charges 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.
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B. In the case ofthe 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. In the event of such
termination, Lessee shall either:
a. Remove any improvements from the Leased Premises and
restore the Leased Premises to its original condition as soon as
possible; or
b. Provided Lessee has first complied with the provisions of
Section 6 hereof, sell the improvements and assign this Lease to
a third person with the prior written consent of Lessor, which
consent will not be unreasonably withheld,contingent upon such
third person: (i) curing and correcting all existing events of
default by Lessee, and (ii) assuming and agreeing to comply
with and perform all obligations, covenants and agreements of
Lessee under this Lease.
(2) If Lessee fails to complete either 1(a) or (b) above within a timely
manner, Lessee shall vacate the Leased Premises and other Lessee
improvements thereon and surrender possession of same to Lessor,
and, at the option of the Lessor, all Lessee improvements shall
remain on the leased premises as the property of Lessor, or Lessor
may, at the expense of Lessee, cause the improvements to be
removed and the leased premises restored to their original condition.
19. 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, 2nd Floor, Pueblo, Colorado,
81003, and to Airport Administration Office, 31201 Bryan Circle, Pueblo,
Colorado 81001, with a copy to City Attorney, 1 City Hall Place, 3rd Floor, Pueblo,
Colorado 81003. All notices required to be given to Lessee hereunder shall be in
writing and sent by certified mail, addressed to Daniel Olsen, 6442 Sanctuary Dr.,
Windsor, CO 80550 , provided, that the parties, or either of them, may designate
in writing from time to time subsequent or supplementary persons or address in
connection with said notices. The effective date or service of any such notice shall
be the date such notice is mailed by Lessee or Lessor.
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20. Law, Rules and Regulations:
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, Leased Premises, or Apron, including without
limitation Chapter 1 of Title III of the Pueblo Municipal Code.
B. Lessee, its officers, agents and employees shall faithfully observe and
comply with all minimum standards and rules regulating operations and
activities from and upon the Airport adopted from time to time by Lessor.
Such minimum standards and rules shall not be applied arbitrarily,
discriminatorily, or unreasonably. Except with respect to matters of public
health and safety, if any provision of this Lease shall conflict with any
provision of the minimum standards and rules adopted or amended by
Lessor after the Commencement Date, the conflicting provision of this
Lease shall control.
21. 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 views 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 Leased Premises, or in the
event of any planned modification or alteration of any present or future
building or structure on the Leased Premises.
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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, as amended, now
codified at 49 U.S.C. § 40103.
F. Lessor reserves for the use and benefit of the public, a right of flight for the
passage of aircraft in the airspace above the surface of the Leased Premises
and Apron, 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 Leased Premises. In the
event the aforesaid covenant is breached, Lessor reserves the right to enter
upon the Leased Premises and to remove the offending structure or object
or cut the offending tree, all of which shall be at the expense of the Lessee.
H. Lessee shall not make use of the Leased Premises or Apron in any manner
which might interfere with the landing and taking off of aircraft at the
Airport or otherwise constitute a hazard to aviation. In the event the
aforesaid covenant is breached, Lessor reserves the right to enter upon the
Leased Premises and Apron and cause the abatement of such interference
at the expense of the Lessee.
If during the term of this lease, all or part of the Leased Premises or Apron
should be taken or threatened to be taken for any public or quasi-public use
under any governmental law or by right of eminent domain, or sold to the
condemning authority under threat of condemnation, this Lease shall
terminate and the proceeds, if any, from such taking or sale shall be
allocated between Lessor and Lessee in accordance with applicable
condemnation law.
J. Lessor reserves the right to grant and to take easements or rights of way in,
under, over and across the Leased Premises and Apron, in which event,
Lessee 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 Leased Premises or Apron.
K. If applicable, Lessee agrees to annually complete and submit a Department
of Transportation - Federal Aviation Administration Airport Activity
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Survey (FAA Form 1800-31) that documents Lessee's air taxi-commercial
passenger enplanements for each calendar year.
L. If applicable, Lessee agrees to annually report on certificated air carrier
aircraft that it services. The report shall detail the aircraft registration
number, manufacturer, make and model, and aircraft owner. This
information will be used by the Airport to determine the Airport's eligibility
for federal airport improvement program grants and will be shared with the
Federal Aviation Administration.
22. Nondiscrimination Assurances:
A. The Lessee, for itself, its successors and assigns, as a part of the
consideration hereof, does hereby covenants and agrees as a covenant
running with the land that in the event facilities are constructed,maintained,
or otherwise operated on the Leased Premises or Apron, 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, age, religion,
sex, disability, sexual orientation 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 or Apron; (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, age, sex, disability, sexual orientation or national origin shall be
excluded from participation in, denied the benefits of, or otherwise be
subjected to discrimination; and (iii) that the Lessee shall use the Leased
Premises and Apron in compliance with all other requirements imposed by
or pursuant to 49 CFR, Part 21, Non-discrimination in Federally Assisted
Programs of the Department of Transportation, and as the regulations may
be amended.
C. The Lessee assures that it will undertake an affirmative action program as
required by 14 CFR, Part 152, Subpart E, to ensure that no person shall on
the grounds of race, creed, color, religion, age, disability, national origin,
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sexual orientation or sex be excluded from participating in any contracting,
leasing or employment activities covered in 14 CFR, Part 152, Subpart E.
The Lessee assures that no person shall be excluded,on these grounds, from
participating in or receiving the services or benefits of any program or
activity covered by this subpart. The Lessee assures that it will require that
its covered suborganizations provide assurances to the Lessee that they
similarly will undertake affirmative action programs and that they will
require assurances from their suborganizations, as required by 14 CFR,Part
152, Subpart E,to the same effect.
D. Lessee agrees to operate the Leased Premises for the use and benefit of the
public and to furnish good, prompt and efficient services adequate to meet
all the demands for its services at the Airport, to furnish service on a fair,
equal and non-discriminatory basis to all users thereof, and to charge fair,
reasonable, and non-discriminatory prices for each unit of service,provided
that Lessee may be allowed to make reasonable and nondiscriminatory
discounts, rebates or other similar types of price reductions to volume
purchasers.
23. Miscellaneous:
A. This Lease and all of its covenants and provisions shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and approved subtenants.
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 Leased Premises"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 Leased Premises 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, the use
restrictions stated in Section 4 shall not apply, and the Lessee may use the
Leased Premises for any lawful use or purpose allowed by the then existing
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Pueblo Municipal Code, or in the alternative, Lessee may terminate this
Lease upon thirty (30) days' prior written notice given to Lessor.
E. In the event of any litigation arising under this Lease, exclusive venue for any
such litigation shall be Pueblo County, Colorado. All such litigation shall be
filed in the District Court and each party submits to the jurisdiction of such
District Court. Lessor and Lessee hereby waive trial by jury in any action,
proceeding, or counterclaim brought by either against the other, upon any
matters whatsoever arising out of or in any way connected with this Lease,
Lessee's use or occupancy of the Leased Premises, and/or any claim of injury
or damage.
F. This Lease is expressly made subject to the limitations of the Colorado
Constitution. Nothing herein shall constitute, nor be deemed to constitute, the
creation of a debt or multi-year fiscal obligation or an obligation of future
appropriations by the City Council of Pueblo, contrary to Article X, §20 of the
Colorado Constitution or any other constitutional, statutory or charter debt
limitation. Notwithstanding any other provision of this Lease, with respect to
any financial obligation of Lessor which may arise under this Lease in any fiscal
year, in the event the budget or other means of appropriations for any such year
fails to provide funds in sufficient amounts to discharge such obligation, such
failure shall not constitute a default by or breach of this Lease, including any
sub-agreement, attachment, schedule or exhibit thereto, by the Lessor.
G. 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.
H. 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.
Neither party shall be, or hold itself out as, agent of the other or as joint
venturers or partners under this Lease.
J. Each party acknowledges that this Lease was fully negotiated by the parties and,
therefore, no provision of this Lease shall be interpreted against any party
because such party or its legal representative drafted such provision.
K. The provisions of this Lease are for the exclusive benefit of the parties hereto
and their successors and permitted assigns, and no third party shall be a
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beneficiary, or have any rights by virtue of this
Lease.
L. This Lease 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.
M. 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.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed as of
the day and year first above written.
LESSEE:
*Dein,'- ( 7/9. #/—7
Signature
/06,4-
4-
Title
4 -// g', e
Date
LESSOR: y
CITY • ,SUE: O
Christop er A. Nicoll, President of City Council
[ SEAL ] /)
Attes x\d a lel,
Brenda Armijo, Acting Clerk
Approved as to Form
>wiAdij .
Daniel C. Kogovsek, City AttornEy
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Exhibit A
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f
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