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HomeMy WebLinkAbout09375 ORDINANCE NO. 9375 AN ORDINANCE APPROVING A LEASE AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND THE UNITED STATES OF AMERICA FEDERAL AVIATION ADMINISTRATION FOR ACCESS ACROSS THE CITY’S HONOR FARM PROPERTY TO THE RADIO COMMUNICATIONS TOWER SERVING PUEBLO MEMORIAL AIRPORT AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME WHEREAS, the City of Pueblo's ("City") Honor Farm Park and Open Space Property (the "Park Property") lies in the path of the most suitable route for access to the Federal Aviation Administration (“FAA”) Radio Communications Link Repeater Tower (“RCLR”); and WHEREAS, it is necessary for the Federal Aviation Administration to cross the City's Honor Farm Park Property to access the Radio Communications Link Repeater (“RCLR”), located on adjacent State of Colorado property, that serves the City’s Pueblo Memorial Airport; and WHEREAS, the Lease Agreement is intended to contractually bind the FAA to reasonable terms and conditions for the protection of the City; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Agreement dated November 12, 2018 between the City and the FAA, a true copy of which is attached hereto and incorporated herein by reference, having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The President of the City Council is authorized to execute and deliver the Lease Agreement in the name of the City and the Acting 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 authorized and directed to perform any and all acts consistent with the intent of the Ordinance and Lease Agreement to implement the policies and procedures described therein. SECTION 4. This Ordinance shall become effective immediately upon final passage and approval. INTRODUCED November 12, 2018 BY: Ed Brown MEMBER OF CITY COUNCIL APPROVED: PRESIDENT OF CITY COUNCIL ATTESTED BY: ACTING CITY CLERK PASSED AND APPROVED: November 26, 2018 City Clerk’s Office Item # R-6 BACKGROUND PAPER FOR PROPOSED ORDINANCE COUNCIL MEETING DATE: November 12, 2018 TO: President Christopher A. Nicoll and Members of City Council CC: Sam Azad, City Manager VIA: Brenda Armijo, Acting City Clerk FROM: Steven Meier, Director of Parks and Recreation SUBJECT: AN ORDINANCE APPROVING A LEASE AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND THE UNITED STATES OF AMERICA FEDERAL AVIATION ADMINISTRATION FOR ACCESS ACROSS THE CITY’S HONOR FARM PROPERTY TO THE RADIO COMMUNICATIONS TOWER SERVING PUEBLO MEMORIAL AIRPORT AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SUMMARY: This Ordinance approves a lease agreement between the City and the Federal Aviation Administration (“FAA”) allowing for access across the City’s Honor Farm Park property to the Radio Communications Link Repeater (“RCLR”) Tower that serves the Pueblo Memorial Airport. PREVIOUS COUNCIL ACTION: None. BACKGROUND: The lease agreement between the City and the FAA allows for access across the City’s Honor Farm Park property from East Mountainside Drive in Pueblo West to the RCLR Tower that serves the Pueblo Memorial Airport. The RCLR is located on adjacent State of Colorado property. Prior to the City acquiring the property from the State of Colorado, a similar access lease agreement was in place with the State. The access is from Pueblo County right-of-way in Pueblo West that extends along the western edge of the Honor Farm on an existing unimproved park road. The access road follows along the top of bluff in the southwest corner of the Honor Farm and passes onto State of Colorado property approximately 475 feet from the RCLR Tower. FINANCIAL IMPLICATIONS: None. BOARD/COMMISSION RECOMMENDATION: Not Applicable. STAKEHOLDER PROCESS: Not Applicable. ALTERNATIVES: If a formal lease agreement is not improved, the FAA will not have authorized access across the City property to the RCLR Tower. The RCLR Tower is important for the operations at Pueblo Memorial Airport. RECOMMENDATION: Approve the Ordinance. Attachments: Lease Agreement Between City and FAA LAND LEASE Between UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION And PUEBLO,A MUNICIPAL CORPORTATION Lease No.: 690EG4-18-L-00130 PUB-RCLR ROW Pueblo County, CO SECTION 1 - OPENING 6.1.1 Preamble (JAN 2017) This Lease is hereby entered into by and between Pueblo, A Municipal Corporation, hereinafter referred to as the Lessor and the United States of America, acting by and through the Federal Aviation Administration, hereinafter referred to as the Government. The terms and provisions of this Lease, and the conditions herein, bind the Lessor and the Lessor's heirs, executors, administrators, successors, and assigns. For purposes of this Lease, the terms Contractor and Lessor are interchangeable with each other. 6.1.3 Witnesseth (JAN 2015) Witnesseth: The parties hereto, for the consideration hereinafter mentioned covenant and agree as follows: 6.1.4-1 Premises(JAN 2017) The Lessor hereby leases to the Government the following described property, hereinafter referred to as the premises: Commencing at the termination of E. Mountainside DR in Section 24, Township 20 South, Range 66 West, and proceeding to Section 19, Township 20 South, Range 65 West, following along a dirt road approximately 0.62 miles in length, 25ft in width, as depicted in Exhibit 1. The access point to the "Honor Farm", in Pueblo County, Colorado via E. Mountainside DR, will be licensed under agreement 690EG4-18-L-00139 with Pueblo West Metro District. The Government will remove existing concrete Page 1 blocks, construct,operate,maintain,an access (farm) gate, as generally depicted in the attached photograph identified as Exhibit 2, with restricted access sign, across, beneath, and over the public right-of-way operated and maintained by Pueblo West Metro District. A. Together with a right-of-way for ingress to and egress from the premises (for Government employees, their agents and assigns); a right-of-way for establishing and maintaining a pole line or pole lines for extending electric power and/or telecommunication lines to the premises; and a right-of-way for subsurface power, communication and/or water lines to the premises; all rights- of-way to be over said lands and adjoining lands of the Lessor, and unless herein described otherwise, shall be reasonably determined by the Government as the most convenient route. B. And the right of grading, conditioning, installing drainage facilities, seeding the soil of the premises, and the removal of all obstructions from the premises which may constitute a hindrance to the establishment and maintenance of Government facilities. C. And the right to make alterations, attach fixtures, erect additions, structures, or signs, in or upon the premises hereby leased, which alterations, fixtures, additions, structures or signs so placed in or upon, or attached to the said premises shall be and remain the property of the Government. SECTION 2 - TERMS 6.2.5 Term (AUG 2002) To have and to hold, for the term commencing on November 12, 2018 and continuing through November 12, 2038 inclusive, provided that adequate appropriations are available from year to year for the consideration herein. 6.2.6 Consideration - No Cost(JAN 2018) - Alternate I (AUG 2002) The Government shall pay Pueblo, A Municipal Corporation no monetary consideration in the form of rental. It is mutually agreed that the rights extended to the Government herein are in consideration of the obligations assumed by the Government in its establishment, operation and maintenance of facilities upon the premises hereby leased. 6.2.7 Cancellation (JUL 2017) The Government may terminate this Lease at any time, in whole or in part, if the Real Estate Contracting Officer(RECO) determines that a termination is in the best interest of the Government. The RECO shall terminate by delivering to the Lessor a written notice specifying the effective date of the termination. The termination notice shall be delivered by certified mail return receipt requested and mailed at least 90 days before the effective termination date. 6.2.14 Holdover(JUL 2017) Page 2 If after the expiration of the Lease, the Government shall retain possession of the premises, the Lease shall continue in full force and effect on a month-to-month basis. Payment shall be made in accordance with the Consideration clause of the Lease, in arrears on a prorated basis, at the rate paid during the Lease term. This period shall continue until the Government shall have signed a new Lease with the Lessor, acquired the property in fee, or vacated the premises. 6.2.16 Lessor's Successors(JUL 2017) The terms and provisions of this Lease and the conditions herein bind the Lessor and the Lessor's heirs, executors, administrators, successors, and assigns. SECTION 3 -GENERAL CLAUSES 3.2.5-1-RE Officials Not to Benefit(OCT 1996) No member of or delegate to Congress, or resident commissioner, shall be admitted to any share or part of this lease, or to any benefit arising from it. However, this clause does not apply to this lease to the extent that this lease is made with a corporation for the corporation's general benefit. 3.3.1-15-RE Assignment of Claims (OCT 1996) Pursuant to the Assignment of Claims Act, as amended, 31 U.S.C. § 3727, 41 U.S.C. § 6305 the Lessor may assign its rights to be paid under this lease. 6.3.18 Non-Restoration (JUL 2017) It is hereby agreed between the parties that, upon termination of its occupancy (due to termination or expiration of the Lease, the Government shall have no obligation to restore and/or rehabilitate, either wholly or partially, the property that is the subject of this lease, including any holdover period. It is further agreed that the Government may abandon in place any or all of the structures and equipment installed in or located upon said property by the Government during its tenure. Such abandoned equipment shall become the property of the Lessor. 6.3.25 Quiet Enjoyment (OCT 1996) The Lessor warrants that they have good and valid title to the premises, and rights of ingress and egress, and warrants and covenants to defend the Government's use and enjoyment of said premises against third party claims. 6.3.33 Covenant Against Contingent Fees (AUG 2002) The Lessor warrants that no person or agency has been employed or retained to solicit or obtain this contract upon an agreement or understanding for a contingent fee, except a bona fide employee or agency. For breach or violation of this warranty, the Government shall have the right to annul this contract without liability or, in its discretion, to deduct from the contract price or consideration, or otherwise recover the full amount of the contingent fee. Page 3 6.3.34 Anti-Kickback- Real Property by Reference(JAN 2017) The Anti-Kickback Act of 1986 (41 U.S.C. 51-58), prohibits any person from: (1) Providing or attempting to provide or offering to provide any kickback; (2) Soliciting, accepting, or attempting to accept any kickback; or(3) Including, directly or indirectly, the amount of any kickback in the contract price charged by a prime contractor to the United States Government or in the contract price charged by a subcontractor to a prime contractor or higher tier subcontractor. 6.3.35 Examination of Records (AUG 2002) The Comptroller General of the United States, the Administrator of FAA or a duly authorized representative from either shall, until three (3) years after final payment under this contract have access to and the right to examine any of the Lessor's directly pertinent books, documents, paper, or other records involving transactions related to this contract. 6.3.36 Subordination, Nondisturbance and Attornment (JAN 2017) A. The Government agrees, in consideration of the warranties and conditions set forth in this clause, that this Lease is subject and subordinate to any and all recorded mortgages, deeds of trust and other liens now or hereafter existing or imposed upon the premises, and to any renewal, modification or extension thereof. It is the intention of the parties that this provision shall be self- operative and that no further instrument shall be required to effect the present or subsequent subordination of this Lease. Based on a written demand received by the RECO, the Government will review and, if acceptable, execute such instruments as Lessor may reasonably request to evidence further the subordination of this Lease to any existing or future mortgage, deed of trust or other security interest pertaining to the premises, and to any water, sewer or access easement necessary or desirable to serve the premises or adjoining property owned in whole or in part by Lessor if such easement does not interfere with the full enjoyment of any right granted the Government under this Lease. B. No such subordination, to either existing or future mortgages, deeds of trust or other lien or security instrument shall operate to affect adversely any right of the Government under this Lease so long as the Government is not in default under this Lease. Lessor will include in any future mortgage, deed of trust or other security instrument to which this Lease becomes subordinate, or in a separate non-disturbance agreement, a provision to the foregoing effect. Lessor warrants that the holders of all notes or other obligations secured by existing mortgages, deeds of trust or other security instruments have consented to the provisions of this clause, and agrees to provide true copies of all such consents to the RECO promptly upon demand. C. In the event of any sale of the premises or any portion thereof by foreclosure of the lien of any such mortgage, deed of trust or other security instrument, or the giving of a deed in lieu of foreclosure, the Government will be deemed to have attorned to any purchaser, purchasers, transferee or transferees of the premises or any portion thereof and its or their successors and assigns, and any such purchasers and transferees will be deemed to have assumed all obligations of the Lessor under this Lease, so as to establish direct privity of estate and contract between Page 4 Government and such purchasers or transferees, with the same force, effect and relative priority in time and right as if the lease had initially been entered into between such purchasers or transferees and the Government; provided, further, that the RECO and such purchasers or transferees shall, with reasonable promptness following any such sale or deed delivery in lieu of foreclosure, execute all such revisions to this Lease, or other writings, as shall be necessary to document the foregoing relationship. D. None of the foregoing provisions may be deemed or construed to imply a waiver of the Government's rights as a sovereign. 6.3.37 Notification of Change in Ownership or Control of Land (JUL 2017) If the Lessor sells, dies or becomes incapacitated, or otherwise conveys to another party or parties any interest in the aforesaid land, rights of way thereto, and any areas affecting the premises, the Government shall be notified in writing, of any such transfer or conveyance within 30 calendar days after completion of the change in property rights. Concurrent with the written notification, the Lessor or Lessor's heirs, representatives, assignees, or trustees shall provide the Government copies of the associated legal document(s) (acceptable to local authorities) for transferring and/or conveying the property rights. 6.3.45 Contract Disputes- Real Property By Reference (JAN 2017) All contract disputes arising under or related to this Lease will be resolved through the FAA dispute resolution system at the Office of Dispute Resolution for Acquisition (ODRA) and will be governed by the procedures set forth in 14 C.F.R. Parts 14 and 17, which are hereby incorporated by reference. Judicial review, where available, will be in accordance with 49 U.S.C. 46110 and will apply only to final agency decisions. A Lessor may seek review of a final Government decision only after its administrative remedies have been exhausted. All contract disputes will be in writing and will be filed at the following address: Office of Dispute Resolution for Acquisition, AGC-70 Federal Aviation Administration 800 Independence Avenue, S.W., Room 323 Washington, DC 20591 Telephone: (202)267-3290 A contract dispute against the FAA will be filed with the ODRA within two (2) years of the accrual of the lease claim involved. A contract dispute is considered to be filed on the date it is received by the ODRA. The full text of the Contract Disputes clause is incorporated by reference. Upon request the full text will be provided by the RECO. Page 5 SECTION 4 - FINANCIAL CLAUSES— Not applicable SECTION 5 - DESIGN AND CONSTRUCTION CLAUSES—Not applicable SECTION 6 -GENERAL BUILDING REQUIREMENTS AND SPECIFICATIONS CLAUSES—Not Applicable SECTION 7 - SERVICES, UTILITIES, AND MAINTENANCE CLAUSES—Not Applicable SECTION 8 - ENVIRONMENTAL OCCUPATIONAL SAFETY AND HEALTH CLAUSES—Not Applicable SECTION 9 - SECURITY CLAUSES—Not Applicable SECTION 10—CLOSING 6.10.1 Notices (JUL 2017) All notices/correspondence shall be in writing, referencing to the Lease number, and be addressed as follows: TO THE LESSOR: Pueblo, a Municipal Corporation City Attorney 1 City Hall Place Pueblo, CO 81003 And a copy provided to: City of Pueblo Parks and Recreation Department Parks and Recreation Director 800 Goodnight Avenue Pueblo, CO 81005 TO THE GOVERNMENT: Federal Aviation Administration Real Estate & Utilities Group, AAQ-930 2200 S 216th Street Des Moines, WA 98198 6.10.3 Signature Block(JUL 2017) This Lease shall become effective when it is fully executed by all parties. In witness whereof, the parties hereto have signed their names. Page 6 PUEBLO, A MU CICIPAL CORPORATION By: j/ Print Name: Christopher A. Nicoll Title: President of City Council Date: /i/2 (. / 1 � UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION By: 2 Print Name: ' Title: Real Estate Contracting Officer Date: /2.1Il l2.� SECTION 11 —ATTACHMENTS/EXHIBITS/SPECIAL STIPULATIONS [RECO to insert any special stipulations or conditions as an attachment] Attachment/Exhibit List Number Title Date Number of Pages 1 Right-of-Way Land Lease, Map 8/1/2018 1 2 Photograph of Farm Gate 10/1/2018 1 Page 7 Exhibit 1 -Right-of-Way Land Lease,Map PUB-RCLR ROW Legend Road 062 Miles and 251t Wbe(approx),Township 20 Soufh ` . PUB RCLR Range 65 West Sectgnl9 County of Pueblo,Colorado .ti $' 44",v ,, ',1,..,...„14 4 r PU&RCLR ROW . t - " ,.,„"k - , ": w :Aid P2OS R65 ess Pont ^, « , tib' a' 8 �y s r + ,' t T20S R65W Sec 19 �iA. �t i gr a ren '‘ ...,.,1 - -.' 4,,,,,, �' ! r .Ax j f,eI ,.. '4 ' ' h', 400) ', ,. ,i *H,+ •:'-'11: `;74 ,a +.'" t i , .. • ,. ..'' ..' , .°,,,...-* - ‘ ,•-4( ' `y7' .' .x, + t ' z r" il ' .r " _ *x, : ' l J , ;tats $ Rg w *'; e; Exhibit 2-Photograph of Farm Gate =MN 0: amiimimmimmin , ,. 11.1.1111111.11111111 IIIIMIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIMIIIIIIIIIIIIIIIIIIIIII Page 9 NOTARY ACKNOWLEDGMENT STATE OF 06 /6A 6 d o ) COUNTY OF C^.d->u—e. 0 On this a61-Adayof before me in—h`: A ' Notary Public in and for the said County of LO , State of 00 aC./D , duly commissioned and sworn, personally appeared NA/9�ac��i.� '��cv/ , known to me to be the person(s) whose name(s) is/are subscribed to the within instrument and that he/she duly acknowledged to me that he/she executed the same. IN WITNESS WHEREOF, I hereunto set my hand and official seal, at my office in the County of U , State of 00 I Aa-GD , the day and year in this certificate first above written. (Signed)�� "h'iY1"c1 4 I TAMMY A MARTINEZ v NOTARY OPORC NotaryPublic in and for the Countyof STATE OF COLORADO NOTARY ID 20164028200 MY COMMISSION EXPIRES 07/2812020 L U , State of SEAL (,)PIOACL do My Commission Expires: ��(7 6,e) Page 10 NOTARY CERTIFICATE STATE OF WASHINGTON COUNTY OF KING On the \ 1°-Clay of 02crcr, 'r2018 before me l G-ti►\ter' , Notary Public, personally appeared ys CG ,-. �� � . This person is known to me to be the person whose name is subscribed to the within instrument and hft.s duly acknowledged to me that hexecuted same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal. WENDI GHILONI (SEAL) Notary Public in and for the County of %NOTARY PUBLIC#172781 STATE OF WASHINGTON % King, State of Washington. COMMISSION EXPIRES ' JUNE 29,2022 I I My commission expires: