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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
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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,,,,,,
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f,eI ,.. '4 ' ' h', 400)
', ,. ,i *H,+ •:'-'11: `;74
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r" il
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, ;tats $ Rg w *'; e;
Exhibit 2-Photograph of Farm Gate
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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: