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HomeMy WebLinkAbout09634ORDINANCE NO. 9634 AN ORDINANCE APPROVING A RESTAURANT LEASE AND OPERATING AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND PETER’S IN & OUT, OWNED BY PETER J. GOMEZ, SOLE PROPRIETOR, AND AUTHORIZING THE MAYOR TO EXECUTE SAME BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. A certain Lease and Operating Agreement for Pueblo Memorial Airport Restaurant by and between the City of Pueblo, a Municipal Corporation, and Peter’s In & Out, owned by Peter J. Gomez, Sole Proprietor, relating to the lease of space in the terminal building at the Pueblo Memorial Airport for a restaurant operation, 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, is hereby approved. SECTION 2. The Mayor is hereby authorized to execute said Lease and Operating Agreement for Pueblo Memorial Airport Restaurant on behalf of the City of Pueblo, 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 and the attached Lease and Operating Agreement for Pueblo Memorial Airport Restaurant to effectuate the transactions described therein. SECTION 4. This Ordinance shall become effective on the date of final action by the Mayor and City Council. Introduced and initial adoption of Ordinance by City Council on December 23, 2019. Final adoption of Ordinance by City Council on January 13, 2020. President of City Council Action by the Mayor: ☒ Approved on January 21, 2020 . ☐ Disapproved on based on the following objections: Mayor Action by City Council After Disapproval by the Mayor: ☐ Council did not act to override the Mayor's veto. ☐ Ordinance re-adopted on a vote of , on ☐ Council action on __________________failed to override the Mayor’s veto. President of City Council ATTEST City Clerk City Clerk’s Office Item # R-5 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: TO: President Dennis E. Flores and Members of City Council CC: Nicholas A. Gradisar, Mayor VIA: Brenda Armijo, City Clerk FROM: Greg Pedroza, Interim Director of Aviation SUBJECT: AN ORDINANCE APPROVING A RESTAURANT LEASE AND OPERATING AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND PETER’S IN & OUT, OWNED BY PETER J. GOMEZ, SOLE PROPRIETOR, AND AUTHORIZING THE MAYOR TO EXECUTE SAME SUMMARY: Attached for consideration is the new Lease and Operating Agreement for Pueblo Memorial Airport Restaurant by and between the City of Pueblo, a Municipal Corporation, and Peter’s In & Out, owned by Peter J. Gomez, Sole Proprietor. The agreement sets out the terms for the use of restaurant facilities at the Pueblo Memorial Airport in exchange for stated rent and certain improvements to the facilities and equipment. PREVIOUS COUNCIL ACTION: None. BACKGROUND: The Pueblo Memorial Airport is currently without a restaurant operator. After three months of no restaurant service, a potential operator has been found and an agreement reached for him to operate the existing facility with the assistance of the City. FINANCIAL IMPLICATIONS: The rent will be calculated at a 5.5% commission of gross sales, after the initial grace period has concluded. Rent for any one month shall not be less than $550.00. BOARD/COMMISSION RECOMMENDATION: The Pueblo Memorial Airport Advisory Committee recommends the approval of Peter’s In & Out as a restaurant option to provide a level of customer service that has been lacking over the last few years. STAKEHOLDER PROCESS: Not Applicable. ALTERNATIVES: City Council could choose not to authorize the attached agreement, in which case the available restaurant space will not be used, and the City will pay upkeep costs associated with the space while not earning potential revenue. This would continue to inconvenience the increasing number of airport users. RECOMMENDATION: The Department of Aviation recommends approval of this ordinance. Attachments: Attached is an assignment and lease agreement. LEASE AND OPERATING AGREEMENT FOR PUEBLO MEMORIAL AIRPORT RESTAURANT THIS LEASE is made and entered into this 1st day of January , 2020("Effective Date") between THE CITY OF PUEBLO, a Municipal Corporation,hereinafter referred to as the "LESSOR," and PETER'S IN&OUT, owned by Peter J. Gomez as a Sole Proprietor, hereinafter referred to as the "LESSEE." WITNESSETH: That in consideration of the keeping and performance of the covenants and agreements of the Lessee, as hereinafter set forth,Lessor has and does hereby lease unto the Lessee,a certain area in the Terminal Building located at Pueblo Memorial Airport, Pueblo County, Colorado (herein "Airport") described in Exhibit A attached hereto and incorporated herein as if set out in full (herein "Leased Premises") for the sole purpose of conducting a restaurant business therein for a term of three (3)years from the Effective Date ("Initial Term"). The first year of the Initial Term shall conclude on December 31,2020,the second year on December 31,2021, and the third year on December 31, 2022. If not in default under this Lease, Lessee shall have the option to extend the term of this Lease for three (3) years ('Optional Term") by giving to Lessor prior written notice of its exercise of such option at least thirty (30) days before December 31, 2022. The extended term shall be upon the same covenants and conditions hereof, except(a) there shall be no further option to extend this Lease and (b) the rent shall be increased as determined by Lessor at the time of renewal. If Lessee does not timely exercise its option to renew,the option to renew shall terminate and be of no further force and effect. This Lease may be terminated by either party at any time by giving sixty (60) days written notice. If notice is by Lessee, any deposits held by Lessor shall be forfeited. 1. RIGHTS AND PRIVILEGES OF LESSEE A. Lessee shall engage in and conduct restaurant business at and upon the Leased Premises for the convenience of patrons and tenants of the Airport and the general public desiring such services at the Airport; which right, without limiting the generality hereof, shall include: 1. The right,subject to necessary licensing, to serve food, soft drinks,and alcoholic beverages,and other items pertaining to the operation of a restaurant. Lessee may provide vending or self-serve options after obtaining prior written approval from the Director of Aviation. 2. The right, subject to necessary licensing, to sell ice cream products, gum, candies, and similar items commonly offered for sale at a restaurant or terminal gift shop. Lessee shall not sell tobacco or vaping products without obtaining prior written approval from the Director of Aviation. 3. The non-exclusive right to provide in-flight food service to scheduled and supplemental airlines, private and executive aircraft who have requested said services of Lessee, and the right to prepare food on the Leased Premises and deliver,or cause to be delivered,to and for the purpose of consumption elsewhere. 4. The right to use, operate, and maintain equipment owned by Lessor and shown in Exhibit C attached hereto and incorporated herein ("Equipment"). Lessee may bring in and use its own equipment identified in Exhibit D attached hereto and incorporated herein (`Lessee's 1 Equipment"), except that Lessee shall remain solely liable for the maintenance, repair, and replacement of said equipment. Upon termination of this Lease, Lessee may remove from the premises any of Lessee's Equipment listed in Exhibit D but may not remove any of the Lessor's Equipment or other property. 5. The right to equip, install,operate and maintain on the Airport, at Lessee's expense,advertising facilities; provided however,that in all cases the number, size,location,general type and design, and the method of installation shall be subject to the prior approval of the Director of Aviation or their designated representative. This limitation shall apply to and include all signs, placards, posters, or other forms of identification or advertising media, installed, placed upon or affixed to the Leased Premises by Lessee. 6. The right, subject to prior written approval by the Director of Aviation of plans and specifications,location and inspection of same,to make improvements,modifications,revisions and other alterations to the Leased Premises and equipment therein. All costs shall be approved by the Director of Aviation in advance of construction or installation, and all receipts for expenditures shall be submitted thereafter. Unless otherwise agreed to by the parties in writing prior to the beginning of construction or installation, all costs of such improvements, modifications, revisions and alterations shall be borne solely by Lessee, and all such improvements, modifications, revisions or alterations shall become and remain the property of the Lessor. 7. Lessee, its employees and invitees shall have the right of 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 Leased Premises shall be located as designated by the Director of Aviation. II. RIGHTS AND PRIVILEGES OF LESSOR A. All rights not herein specifically granted to the Lessee are hereby reserved to Lessor. B. Lessor also reserves the right to require Lessee to make any adjustments deemed necessary to improve the interior appearance of the Leased Premises or the quality of service rendered in connection with Lessee's operation. III. OBLIGATIONS OF LESSEE A. It shall be the obligation of Lessee to continuously operate and conduct the restaurant business as herein set forth, and to maintain the Leased Premises at all times in a safe,clean, orderly and attractive condition. B. Lessee, its officers, employees, agents or servants shall, at all times, comply with the Federal Pure Food and Drug Laws, Health Rules and Regulations and other applicable Laws and Regulations of the United States Government, and the State of Colorado and all applicable Ordinances, Codes and Regulations of the City and County of Pueblo, including the rules and regulations governing the operation of the Airport. C. All food, beverages, confections and other items sold and kept for sale by Lessee shall be of high quality,wholesome and pure and the service shall be prompt,attractive,clean,efficient and courteous. Lessee shall ensure that it always has sufficient food and beverages on premises to serve all potential customers and that it will have a variety of foods sufficient to meet different dietary needs and 2 restrictions. Violation of any provision of this paragraph by Lessee, its officers,employees,agents or servants shall cause this Lease to be subject to cancellation by Lessor, if not corrected immediately upon written notice by the Director of Aviation. D. Except as otherwise specifically provided herein, Lessee shall pay all costs of operating the restaurant business and maintaining the Leased Premises, including but not limited to, necessary personnel, and all licenses, permits or other similar authorizations as required under Federal, State or Local Laws and Regulations, insofar as they are necessary to comply with the requirements of this Lease and the rights and privileges extended hereto. E. Lessee shall,at its sole expense,maintain and keep the Leased Premises,and all improvements thereon, including without limitation, the Equipment, Lessee's Equipment, sewer and water lines and connections, plumbing, heating and air conditioning equipment and systems, in good condition, appearance, and state of repair and provide all interior building maintenance, repair, and custodial service for the Leased Premises. It being expressly understood and agreed that Lessor shall not be responsible for any defect in the Leased Premises or improvements thereon or obligated to make any repair, except for exterior maintenance and repairs to the exterior of the Leased Premises. 1. 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, without any obligation to do so, enter the Leased Premises, without such entering causing or constituting a termination of the Lease, or an interference with the possession of the Leased Premises by Lessee, and perform the necessary maintenance and/or restoration work to the Leased Premises to the condition required by the Lessor, the cost of which shall be borne solely by Lessee. All such costs shall be paid by Lessee to Lessor within thirty (30)days after completion of the work. F. The Lessee shall, at its own expense, keep the Leased 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 its activities at the Airport. All trash,garbage, and other refuse shall be out of view of the public. G. For the first year of the Initial Term, Lessor shall pay all utilities supplied to and used in the Leased Premises. After the first year of the Initial Term, unless otherwise negotiated by the parties and if the Lease is not terminated, Lessee shall pay all utilities supplied to and used in the Leased Premises and shall enter into separate agreements with the utility organizations for metering such services. Lessee shall at all times during the Term,including any optional or extended term,pay all applicable business and related taxes. H. Lessee shall at all times retain an active, qualified, experienced and competent manager to supervise the restaurant business who shall be authorized to represent and act for and on behalf of the Lessee. 1. Lessee's personnel shall be courteous, efficient, clean and neat in appearance, and shall be trained and qualified to perform any and all services to the public required or contemplated under the terms of this Lease. 2. Lessee shall not employ any person or persons in or about the Leased Premises who shall use improper language, or act in a loud, boisterous, or otherwise improper manner. Lessee, except as may be otherwise provided in other contracts entered into with the Lessor, shall not engage in any business at the Airport other than that which is expressly authorized herein. 3 J. Lessee shall repair all damages to the Leased Premises caused by its officers, employees, invitees, agents or patrons or arising out of Lessee's operations thereon. K. Period of restaurant operation: 1. Except as herein set forth, the dining room area of the restaurant shall remain open for service to the public a minimum of six (6) days per week and eight (8) hours per day, with adequate service to meet the public demand. At a minimum, Lessee shall be open for at least an hour prior to final boarding of any commercial flight leaving the Airport,and for at least an hour after any commercial flight arriving at the Airport. The Director of Aviation may require extension of operating hours, or otherwise modify operating hours appropriately, to meet anticipated demand. 2. The sale of alcoholic beverages shall be subject to Regulations as provided by the Statutes of the State of Colorado and Local Ordinances, Rules and Regulations, whichever may apply to the Premises under the Agreement. 3. Any change to the minimum hours or days of operation of the restaurant is prohibited without the prior written approval of the Director of Aviation. IV. OBLIGATIONS OF LESSOR A. Lessor shall provide periodic washing of windows on the outside only. B. Lessor shall not be responsible for any damage to,or loss of property of Lessee, its officers,employees, agents, servants, patrons, or any other person or persons at the Airport. V. RENT AND FEES A. Lessee shall not be liable for rent the first year of the Initial Term, which ends on December 31, 2020. Lessee shall still be liable for all applicable taxes and fees during that time. Should Lessor and Lessee fail to mutually agree on rental rates by the end of the first year of the Initial Term, this Lease shall automatically terminate on December 31, 2020. B. Should Lessor and Lessee agree in writing that the Lease will not terminate at the end of the first year of the Initial Term, but fail to set out new rental rates, rent shall be as follows: 1. Lessee agrees to pay to the Lessor, without offset or deduction,at such places as the Lessor may designate from time to time, for the use of the premises, facilities, concession rights and privileges,monthly rent that will be calculated at afive and one-half percent (5.5%)commission of the gross sales,where the gross sales and commission are reported to the Director of Aviation on a monthly basis. However, should the gross sales for a month be less than $10,000.00, the rent for that month shall be $550.00. In no case shall the monthly rent fall below $550.00. 2. All monthly payments of rent shall be due on the first (ls`) of each month and shall reflect the commission for the previous month. Payments of rent shall be considered late if received after the tenth (10`11) day of the month and a late fee of$100.00 will be assessed against the Lessee. The first payment of rent shall be due January 1, 2021 and will be based off of the gross sales of the prior month. 4 C. Lessee shall keep and maintain at the Leased Premises accurate and complete books and records of its restaurant and sales operation and gross receipts. Lessee shall permit the duly authorized representative of the Lessor to examine Lessee's books at any time during business hours. D. Lessee has deposited the sum of$1,000.00 with Lessor as security for Lessee's prompt performance of all the terms covenants and agreements contained in this Lease. Lessee understands and agrees (i) that such deposit is not a prepayment of rent and that Lessor shall not be obligated to apply said deposit to any unpaid rent or portion thereof, although it may do so at its option; and(ii)that Lessor shall have no obligation to account to Lessee and Lessee shall have no right to recover from Lessor any interest, earnings or other increments which may accrue during the time such deposit is held by Lessor. Lessor may draw from the deposit at any time to correct a default of Lessee. Should Lessor draw from the deposit. Lessee shall immediately restore the deposit to its full amount upon notice of the draw from Lessor. VI. EQUIPMENT AND CAPITAL IMPROVEMENTS A. Lessor has made certain capital improvements to the Leased Premises and owns the Equipment located on the Leased Premises as set forth in Exhibit C attached hereto. Lessee shall have the right to use such Equipment in the operation of the Restaurant business at and upon the Leased Premises. All such Equipment shall remain the property of the Lessor and shall be returned to the Lessor at the termination or expiration of this Agreement in good and working condition. B. Lessee shall be responsible for all maintenance, repair and replacement of equipment. Lessee shall be solely responsible for all routine maintenance of the equipment, supplies and Leased Premises. Lessor may, at its sole and absolute discretion, reimburse Lessee the actual cost to repair or replace equipment or otherwise improve the Leased Premises by deducting the actual cost for such repair and replacement of equipment or improvement of the Leased Premises from Lessee's rental obligation for a total off-set of no more than eighteen (18) months of rent. In order to obtain any such deduction or off-set, Lessee must obtain prior written approval from Lessor and provide Lessor with receipts,cancelled checks, lien waivers or such other documentation sufficient to demonstrate the actual cost incurred by Lessee. All equipment and improvements shall become the property of the Lessor for Lessee's use only as long as it operates a restaurant business on the Leased Premises. Upon termination or expiration of this Agreement, all such equipment and improvements shall be returned to the Lessor in good and working condition and repair. Lessee shall maintain ownership of Lessee's Equipment listed in Exhibit D and must remove said equipment from the property upon termination or expiration of the Lease. VII. MISCELLANEOUS A. The Lessee by accepting this Lease expressly agrees for itself, its successors and assignees 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 to aviation. In the event the aforesaid covenant is breached, the Lessor reserves the right to enter upon the Leased Premises and cause the abatement of such interference at the expense of the Lessee. B. Lessor and Lessee understand and agree that the General Provisions attached hereto as Exhibit B, are incorporated herein and shall be binding upon and inure to the benefit of Lessor and Lessee as if set out in full. In the event of a conflict between the provisions of the General Provisions and this Lease, the provisions of this Lease shall control. C. If Lessee defaults in the payment of rent or any part thereof or fails to perform or observe any of the conditions and covenants on its part to be performed or observed hereunder,and such default or failure shall continue for a period of ten (10) days after written notice thereof has been mailed to Lessee by 5 first class mail addressed to Lessee at its last known address at Pueblo Memorial Airport,then, in that event, and as often as same may happen, it shall be lawful for Lessor, at its election, with or without notice, to terminate this Lease without prejudice to any claim for rent or for breach of covenants, or without being guilty of trespass or forcible entry or detainer. Lessor is hereby granted a lien and security interest for payment of rent and damages for breach of covenants upon all Lessee's goods and personal property which is or may by placed upon the Leased Premises including without limitation Lessee's Equipment, business fi!tures, equipment, inventory and proceeds thereof and such lien may be enforced by the taking and sale of such property in the same manner and as provided for the disposition of collateral under the Colorado Uniform Commercial Code. D. If the Leased Premises is left vacant and any part of the rent remains due and unpaid, Lessor may, without being obligated to do so, and without terminating this Lease, retake possession of the Leased Premises and rent the same for such rent and upon such terms as Lessor may think best,making such changes and repairs as may be required,giving credit for the amount of rent received less all expenses of such changes and repairs, and Lessee shall be liable for the balance of the rent until expiration of this Lease. E. Lessee agrees to pay to Lessor all costs, including reasonable Attorney Fees, of any action brought by Lessor to enforce the Lease or to recover rent or other money due and unpaid under the Lease or to recover possession of the Leased Premises, whether such action proceeds to judgement or not. F. No waiver of any breach of any one or more of the conditions or covenants of this Lease by Lessor shall be deemed to imply or constitute a waiver of any succeeding or other breach hereunder. The acceptance of rent by Lessor shall not constitute a waiver of any breach then existing. G. If Lessee remains in possession of the Leased Premises after termination or expiration of the Lease without written agreement, such possession shall be deemed to be a tenancy from month to month upon the same covenants and conditions set forth herein but Lessee shall pay a monthly rent equal to two times the average of the monthly rent payable hereunder for the prior twelve months. H. In the event of a fire or other casualty in or to the Leased Premises, Lessee shall immediately give notice to Lessor. If the Leased Premises,through no fault nor neglect of Lessee,its agents, employees or invitees,shall be damaged by fire or other casualty so as to render the Leased Premises untenantable, and Lessor elects to repair the same,the rent herein shall abate thereafter until such time as the Leased Premises are made tenantable by Lessor. In the event the Leased Premises or the Terminal Building shall be damaged by fire or other casualty and Lessor shall decide not to rebuild or repair (which decision Lessor may make in its sole discretion)then all rent owed up to the time of such damage shall be paid by Lessee and this Lease shall terminate. VIII. EXHIBITS TO AGREEMENT Exhibit A: Floor Plan of Leased Premises Exhibit B: General Provisions Exhibit C: List of Lessor Owned Restaurant Equipment Exhibit D: List of Lessee Owned Restaurant Equipment All such exhibits are incorporated herein by this reference. IN WITNESS WHEREOF,the parties have caused this Agreement to be executed as of this day and year. DATED THIS I3a4" day of IN rt u A 20 a, Q 6 Attest: LESSOR: THE CITY OF PUEBLO, A MUNICIPAL CORPORATION 4:166Clerk Nicholas A. radisar, Mayor APPROVED AS TO FORM: City Attorney LESSEE: 4I I BY .,„."4111irl ,v1 .2 Peter t ez, Owner doe 7 Exhibit A Floor Plan of Leased Premises Page 8 .. _ _. <f 1.014 q AIRPORT RESTAURANT Aro D.,;,a FO(! I HA tr.:err tcN Ir r. ti LAI I i i_. c lr�, n ... Exhibit B General Provisions 1. This Lease is subject and subordinate to the provisions of any existing or future agreement between the Lessor and the United States Government or any agency thereof relating to the operation or maintenance of the Pueblo Memorial Airport. The United States Government has reserved the right of immediate re-entry in, to and upon the Pueblo Memorial Airport including the Leased Premises in the event of a National Emergency. If such a right is exercised,the Lease shall terminate and Lessee shall immediately quit and vacate the Leased Premises and remove all its property and equipment therefrom. If the Lease is so terminated,neither Lessor nor Lessee shall be liable or responsible to the other party for any damages or account of any covenants of the Lease or herein otherwise contained. 2. The terms and provisions of the Lease and these General Provisions are subject to the provisions of the City of Pueblo's Code of Ordinances, including Chapter 1 of Title III,in effect at the time of execution of the Lease or as same may be hereafter amended. In the event of a conflict between the provisions of said Chapter 1 of Title III and any provision of the Lease or these General Provisions, the provisions of said Chapter 1 of Title III shall control. 3. Lessor reserves for the use and benefit of the public, a right of flight for the passage of aircraft above the surface of the property, together with the right to cause in said airspace such noise as may be inherent in the operation of any aircraft now known or hereafter used, for navigation of or flight in said airspace,and for use of said airspace for landing on,taking off from,or operation on or over the Pueblo Memorial Airport. 4. 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 or other public areas or facilities and to develop, modify, change, relocate,abandon or improve the Pueblo Memorial Airport,or any part thereof,as it may determine, in its sole and absolute discretion, at any time. Lessee hereby releases and forever discharges Lessor from any and all damages or injuries resulting from or occasioned by any such actions taken or omitted to be taken by the Lessor. 5. Lessee in performing its operations or providing services under the Lease shall: a. Furnish good,prompt, and efficient services. b. Operate and furnish services on a fair, equal, and nondiscriminatory basis to all users thereof. c. Charge fair, equal, reasonable and nondiscriminatory prices for each unit of sale or service, including parts, materials, and supplies, provided Lessee may be permitted to make reasonable and nondiscriminatory discounts, rebates or other similar type of price reductions to quantity purchases. 6. The Lessee, as a part of the consideration hereof does hereby further covenant and agree, as a covenant running with the property, that the Lessee shall maintain and operate the facilities and services in compliance with all other requirements imposed pursuant to Title 49,Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-Assisted Programs of the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964,and as such Regulations may be amended (herein "Regulations"). The Lessee does further hereby covenant and agree, as a covenant running with the Leased Premises, that: Page 9 a. No person on the grounds of race, color, national origin, age, sex, sexual orientation, or disability shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of the Leased Premises. b. In the construction of any improvement on, over, or under the Leased Premises and the furnishing of service thereon,no person on the grounds of race,color,national origin,age, sex, sexual orientation, or disability shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination. c. The Lessee shall use the Leased Premises in compliance with all other applicable requirements imposed by or pursuant to the Regulations. That in the event of breach of any of the above nondiscrimination covenants, the Lessor shall have the right to immediately terminate the Lease and to re-enter and repossess the Leased Premises and the facilities thereon, and hold the same as if the Lease had never been made or issued. 7. Lessee, its officers, agents and employees shall faithfully observe all rules and regulations affecting the use of the Pueblo Memorial Airport or motor vehicles thereon or the use and occupancy of the Leased Premises,whether established by the Director of Aviation,the City,the State of Colorado, or the United States or agencies thereof, and Lessee's use and occupancy of the Leased Premises and improvements thereon are subject to all ordinances of the City located within the jurisdictional limits of the City. 8. Lessee shall indemnify and save harmless the Lessor, its officers, agents, and employees from and against any and all claims, demands, actions, suits and expenses (including reasonable attorney fees) of any nature, including those based upon injury to persons, death, or damage to property, including loss of use, arising out of, caused by, or sustained by the acts or omissions of Lessee, its officers,agents,or employees,or in connection with the performance of the Lease, or by conditions created thereby, or by conditions of the Leased Premises, or based upon any violation of any statute, ordinance,or regulation, except those caused by the gross negligence of the Lessor, its officers, agents or employees. 9. Lessee shall maintain at its expense during the effective period of the Lease: a. Comprehensive general liability, products liability, and property damage insurance for injuries to or death of any person or for damage to or loss of property with limits of not less than $1,000,000.00 combined single limit per occurrence. b. Workers' compensation insurance with policy provisions as required by Colorado State Law. c. Contractual liability insurance to insure the performance by Lessee of the indemnification obligations of paragraph (8)hereof. Lessee shall furnish to the Lessor a certificate from an insurance company acceptable to the Lessor certifying such insurance to be in force during the effective term of the Lease. All such insurance shall provide for a minimum of ten (10) days' notice to the Lessor in the event of cancellation or material change in the terms thereof. The Lessor reserves the right to reasonably increase the minimum insurance limits set forth in (a) above. 10. The Lease and these General Provisions are intended as the complete integration of all understandings and agreements between the parties. No prior or contemporaneous addition, Page 10 deletion, or other amendment shall have any force or effect whatsoever unless specifically included in the Lease. No subsequent renovation, renewal, addition, deletion, or other amendment to the Lease or hereto shall have any force or effect unless embodied in a written agreement and approved by the Lessor. 11. Lessee shall not assign or otherwise transfer the Lease or any of Lessee's interest therein or sublease the Property or any portion thereof without the prior written consent of the Lessor. If Lessee is a corporation or partnership, a majority interest shall not be sold or otherwise transferred without the prior written consent of the Lessor. Any such assignment, transfer or sublease made without prior written consent of the Lessor shall be void and ineffective as to the Lessor and shall constitute grounds to terminate the Lease. 12. In case any one or more of the provisions contained herein or in the Lease shall be invalid,illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein or in the Lease shall not be affected or impaired thereby. • 13. Whenever in the Lease or in these General Provisions any of the Parties hereto is named or referred to,the successors and assignees of such party shall be deemed to be included and all the covenants, promises and agreements contained herein or in the Lease by or on behalf of the Lessee, or by and on behalf of the Lessor, shall bind and inure to the benefit of the respective successor and assignees, whether so expressed or not. 14. It is the intention of the parties hereto that the Lease and these General Provisions and the rights and obligations of the parties hereunder shall be governed by and construed and enforced in accordance with the laws of the State of Colorado. 15. Neither the Lessor nor Lessee shall be liable to the other for any business interruption or any loss or damage to property or injury to or death of persons occurring on the Airport,or in any manner growing out of or connected with the Lessee's use and occupancy of the Leased Premises or the condition thereof, whether or not caused by the negligence or other fault of Lessor or Lessee, or their respective officers,agents or employees. This release shall apply to the extent such business interruption, loss,or damage to property or injury to or death of persons is covered by insurance regardless of whether such insurance is payable to or protects the Lessor or Lessee or both. Nothing herein shall be construed to impose any other greater liability upon either Lessor or Lessee than would have existed in the absence of this provision. This release shall be in effect so long as the applicable insurance policies contain a clause to the effect that this release shall not affect the right of the insured to recover under such policies. Such clauses shall be obtained by the parties whenever possible. The release in favor of Lessor contained herein, is in addition to, and not in substitution for, or in diminution of the hold harmless and indemnification provisions hereof. 16. The Lease and any amendment or modification thereto are subject to the prior written approval of the Federal Aviation Administration. Lessee agrees to comply with notification and review requirements of construction, modification, or alteration of any building or structure on the Leased Premises. Page 11 Exhibit C Inventory of Restaurant Equipment Owned by the Lessor Page 12 b a) mi D U Z O, O, 00 O N rL) Ln O O N F * O N 00 N � 00 O Z N d 00 N N O W "J' O vp 000O in OO O w O M N O '-" crl OT 2 (� d ar vi d- d U o rnN d 0 0 CYN W as U E-+ 1-4o Q V L 4 O W 0-. U [� Z '� a w �r �_ r., W . ONO r-. �" 0 N O '.--" G�. N rH O ~ N M i.�.i �l C7 C� H CT N 000Ci U 0 rn X CA W ^ ~ U cK O O g Q, y - 0 . p A r% X 3 � wwcActi 3x � maa mm - a LT4 0* 4 t �►/ -- .- ,— -, .-, N . . .-. N -, N N r N N N Y N O Fi,l Co E* Iml ✓ o c o taa Tai 71- cu cA N a) "0 'b ^� 0 ¢' N v, CA N .. .. M U j j °v ti b rte+ r:4 VD _ G� r1 y„ 4 c cu vD a) v) cn W U 0 or N cd a) A, O <n .n by a) y 4 3 x . U 014 �. � etcii - w � t � 3 I t7 a, bb EQ E 01 O� °'ti O� 8 -. a) 3cd ° L •-• > O ~ °' o (+. UCJ � oaaCaO � v) U U w VUvUOcn ) A • I . • CD c-, • • 6. `� • • • • • • • • C 0 �� "�� /b '0 �p CSD r.Zi "r7 En a C!1 '�' O cn fn 0, N N N N N N rEn En 0 ^ p MSI , Cn O O b n . 5 !zt:j w '&1, -% 0 O ..• -, A� C . v. 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C.)'`" I cil v I 0 ii a CA 45 � cro a. • CA CA CA ro- CD CD W N — CN J `p ---+ W LA W .-+ 00 , C C CD CD CD CD C CD CD -t .-t LA Ci rn — — — — — / a. _ N 00 VD _ m N N — N N _ CA o U � 0 u . 7 u ° N # N « & 'Q u '2 ] § 6 un ° z o - ok. § .o $ . ,f ._ q § z § 3 CA 17 3 ° � . r rn cu a k N ( k — u � k 4-0 Z CI 2 § b / / i cu 0 , k b � § © k q \ 7cc, / « 7 2 ƒ 1-1 ,B r r v, e , acl G e e e _ � • U ? .G , e a A e e %.� ° 7 2 � .d c _ § 0 % u " 0 U d 1 3 2 / d Exhibit D Inventory of Restaurant Equipment Owned by the Lessee Page 13 Peters in & out Equipment inventory December 2019 3- waxies 4x6 floor mates 1 — lockwood food warmer (solid door) # 101318311 1 — lockwood food warmer (glass door) # 051116327 *6ea - 24x36 sheet pans total= 12 1 — sauber 2x2 stainless work table # kj0224 1 — winco table top food warmer with lid # 50010066399 1 — patriot table top food warmer with lid # 072015 1 — true 72 inch 2 door sandwich prep case (silver) 1 —jj snack food model 994 table top food warmer (glass door) 1 — eagle heat lamp # 9p0319 1 — Table top popcorn machine 1 — 5 gallon winco (silver) coffee pot 1 — coke (red) roll around cooler 1 — mtn dew (green) roll around cooler 1 — monster (black) roll around cooler 2 — tye dye roll around trash containers 1 — Red bull roll around cooler AMENDMENT TO THE LEASE AND OPERATING AGREEMENT FOR PUEBLO MEMORIAL AIRPORT RESTAURANT THIS AMENDMENT("Amendment") is made and entered into this 4`h day of January , 2021 ("Effective Date"), by and between THE CITY OF PUEBLO, a Municipal Corporation, hereinafter referred to as the "LESSOR," and PETER'S IN AND OUT, owned by Peter J. Gomez as a Sole Proprietor, hereinafter referred to as the "LESSEE." WHEREAS, Lessor leases to the Lessee, a certain area in the Terminal Building located at Pueblo Memorial Airport, Pueblo County, Colorado (herein "Airport") known as the Leased Premises for the sole purpose of conducting a restaurant business therein; and WHEREAS, Lessor and Lessee entered into the Lease and Operating Agreement for Pueblo Memorial Airport Restaurant ("Agreement") dated January 1, 2020 for a term of three years; and WHEREAS, Lessor and Lessee now desire to amend the terms of the Agreement as set forth herein. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, Lessor and Lessee agree to amend the Agreement as follows: 1. Section III, "Obligations of Lessee," Subsection G shall be deleted in its entirety and replaced with the following: G. From the Effective Date through June 30, 2021, Lessor shall pay all utilities supplied to and used in the Leased Premises. Beginning July 1, 2021, Lessee shall pay all utilities supplied to and used in the Leased Premises and shall enter into separate agreements with the utility organizations for metering such services. Lessee shall at all times during the Term, including any optional or extended term, . pay all applicable business and related taxes and fees. • r 8► , 2. Section V, "Rent and Fees," Subsection A shall be deleted in its entirety and replaced with the following: A. Lessee shall not be liable for rent from the Effective Date through June 30, 2021. Lessee shall still be liable for all applicable taxes and fees during that time. Lessee shall become liable for rent beginning July 1, 2021. Should Lessor and Lessee fail to mutually agree on rental rates by June 30, 2021, this Lease shall automatically terminate on June 30, 2021. 3. Section V, "Rent and Fees," Subsection B shall be deleted in its entirety and replaced with the following: B. Should Lessor and Lessee agree in writing that the Lease will not terminate on June Page 1 of 2 30, 2021, but fail to set out new rental rates, rent shall be as follows: 1. Lessee agrees to pay to the Lessor, without offset or deduction, at such places as the Lessor may designate from time to time, for the use of the premises, facilities, concession rights, and privileges, monthly rent that will be calculated at a five and one-half percent (5.5%)commission of the gross sales, where the gross sales and commission are reported to the Director of Aviation on a monthly basis. However, should the gross sales for a month be less than $10,000.00, the rent for that month shall be $550.00. In no case shall the monthly rent fall below $550.00. 2. All monthly payments of rent shall be due on the first (1st) of each month and shall reflect the commission for the previous month. Payments of rent shall be considered late if received after the tenth (10th) day of the month and a late fee of $100.00 will be assessed against the Lessee. The first payment of rent shall be due July 1, 2021 and will be based off of the gross sales of the prior month. 4. Except as expressly modified by this Amendment, the Agreement shall remain in full force and effect. Except as hereby modified, the obligations of either party to be performed under the Agreement are not waived nor excused in any manner but shall be performed in accordance with the terms and conditions of the Agreement as it existed prior to this Amendment. IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of this day and year first above written. [ SEAL ] CITY OF PUEBLO, A MUNICIPAL CORPORATION ATT ESPAM dA\ By .7t,CG4,, City Clerk Nicholas A. Gradisar, Mayor Approved as to form: C i City Attorney PETER'S IN AND OUT By /°Jr• —)a ''�'` 'eter J. Gom , Sole Proprietor Page 2 of 2 SECOND AMENDMENT TO THE LEASE AND OPERATING AGREEMENT FOR PUEBLO MEMORIAL AIRPORT RESTAURANT THIS SECOND AMENDMENT("Amendment") is made and entered into this 1.51 day of MlLN , 2021 ("Effective Date"), by and between THE CITY OF PUEBLO, a Municipal Corporation, hereinafter referred to as the "LESSOR," and PETER'S IN AND OUT, owned by Peter J. Gomez as a Sole Proprietor, hereinafter referred to as the "LESSEE." WHEREAS, Lessor leases to the Lessee, a certain area in the Terminal Building located at Pueblo Memorial Airport, Pueblo County, Colorado (herein "Airport") known as the Leased Premises for the sole purpose of conducting a restaurant business therein; and WHEREAS, Lessor and Lessee entered into the Lease and Operating Agreement for Pueblo Memorial Airport Restaurant ("Agreement") dated January 1, 2020 for a term of three years; and WHEREAS, Lessor and Lessee entered into the Amendment to the Lease and Operating Agreement for Pueblo Memorial Airport Restaurant("First Amendment") dated January 4, 2021, amending the terms of the Agreement because of the COVID-19 pandemic; and WHEREAS, Lessor and Lessee now desire to further amend the terms of the Agreement as set forth herein. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, Lessor and Lessee agree to amend the Agreement as follows: Section V, "Rent and Fees," Subsection B shall be deleted in its entirety and replaced with the following: B. Rent shall be as follows: 1. Beginning July 1, 2021, Lessee agrees to pay to the Lessor, without offset or deduction, at such places as the Lessor may designate from time to time, for the use of the premises, facilities, concession rights, and privileges, monthly rent that will be calculated at a three percent (3%) commission of the gross sales, where the gross sales and commission are reported to the Director of Aviation on a monthly basis. However, should the gross sales for a month be less than $10,000.00, the rent for that month shall be $300.00. In no case shall the monthly rent fall below$300.00. 2. The rent for the July 1, 2021 through December 31, 2021 period, totaling a minimum of $1,800.00, ("Forgiven Rent") shall be forgiven due to the COVID-19 pandemic. However, should Lessee default on or breach the terms of the Lease, the full amount of Forgiven Rent shall become Page 1of2 immediately due upon Lessor's notice to Lessee. 3. All monthly payments of rent shall be due on the first (1st) of each month and shall reflect the commission for the previous month. Payments of rent shall be considered late if received after the tenth (10th) day of the month and a late fee of $100.00 will be assessed against the Lessee. The first payment of rent shall be due July 1, 2021 and will be based off of the gross sales of the prior month. II. Except as expressly modified by this Amendment, the amended Agreement shall remain in full force and effect. Except as hereby modified, the obligations of either party to be performed under the amended Agreement are not waived nor excused in any manner but shall be performed in accordance with the terms and conditions of the amended Agreement as it existed prior to this Amendment. IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of this day and year first above written. [ SEAL ] CITY OF PUEBLO, A MUNICIPAL CORPORATION ATTEST: � By '7/�N4 City kjerk Nicholas A. Gradisar, Mayor Approved as to form: 4624/ City Attorney PET41 . ' '\ND OUT �., i By - Peter J. Gomez, Sir- Proprietor Page 2 of 2 THIRD AMENDMENT TO THE LEASE AND OPERATING AGREEMENT FOR PUEBLO MEMORIAL AIRPORT RESTAURANT THIS THIRD AMENDMENT ("Amendment") is made and entered into this s day of , 2022 ("Effective Date"), by and between THE CITY OF PUEBLO, a Municipal Corporation, hereinafter referred to as the "LESSOR," and PETER'S IN AND OUT, owned by Peter J. Gomez as a Sole Proprietor, hereinafter referred to as the "LESSEE." WHEREAS, Lessor leases to the Lessee, a certain area in the Terminal Building located at Pueblo Memorial Airport, Pueblo County, Colorado (herein "Airport") known as the Leased Premises for the sole purpose of conducting a restaurant business therein; and WHEREAS, Lessor and Lessee entered into the Lease and Operating Agreement for Pueblo Memorial Airport Restaurant ("Agreement") dated January 1, 2020 for a term of three years; and WHEREAS, Lessor and Lessee entered into the Amendment to the Lease and Operating Agreement for Pueblo Memorial Airport Restaurant("First Amendment") dated January 4, 2021, amending the terms of the Agreement because of the COVID-19 pandemic; and WHEREAS, Lessor and Lessee entered into the Second Amendment to the Lease and Operating Agreement for Pueblo Memorial Airport Restaurant("Second Amendment")dated July 1, 2021, amending the terms of the Agreement because of the COVID-19 pandemic; and WHEREAS, Lessor and Lessee now desire to further amend the terms of the Agreement as set forth herein. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, Lessor and Lessee agree to amend the Agreement as follows: Section V, "Rent and Fees," Subsection B shall be deleted in its entirety and replaced with the following: B. Rent shall be as follows: 1. Beginning July 1, 2021 and through December 31, 2021, Lessee agrees to pay to the Lessor, without offset or deduction, at such places as the Lessor may designate from time to time, for the use of the premises, facilities, concession rights, and privileges, monthly rent that will be calculated at a three percent(3%) commission of the gross sales, where the gross sales and commission are reported to the Director of Aviation on a monthly basis. However, should the gross sales for a month be less than $10,000.00, the rent for that month shall be $300.00. In no case shall the monthly rent fall below $300.00. Page 1 of 3 2. The rent for the July 1, 2021 through December 31, 2021 period, totaling a minimum of$1,800.00, ("First Forgiven Rent")shall be forgiven due to the COVID-19 pandemic. 3. Beginning January 1, 2022 and through December 31, 2022, Lessee agrees to pay to the Lessor,without offset or deduction,at such places as the Lessor may designate from time to time, for the use of the premises, facilities, concession rights, and privileges, monthly rent that will be calculated at a five percent(5%) commission of the gross sales, where the gross sales and commission are reported to the Director of Aviation on a monthly basis. However, should the gross sales for a month be less than $10,000.00, the rent for that month shall be $500.00. In no case shall the monthly rent fall below $500.00. 4. The rent for the January 1,2022 through December 31,2022 period,totaling a minimum of$6,000.00, ("Second Forgiven Rent") shall be forgiven due to the COVID-19 pandemic. 5. Should Lessee default on or breach the terms of the Lease, the full amount of First Forgiven Rent and Second Forgiven Rent shall both become immediately due and payable upon Lessor's notice to Lessee. 6. All monthly payments of rent shall be due on the first (1st) of each month and shall reflect the commission for the previous month. Payments of rent shall be considered late if received after the tenth (10th) day of the month and a late fee of$100.00 will be assessed against the Lessee. II. Except as expressly modified by this Amendment, the amended Agreement shall remain in full force and effect. Except as hereby modified, the obligations of either party to be performed under the amended Agreement are not waived nor excused in any manner but shall be performed in accordance with the terms and conditions of the amended Agreement as it existed prior to this Amendment. [Remainder of page intentionally left blank.] Page 2 of 3 IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of this day and year first above written. [ SEAL ] CITY OF PUEBLO, A MUNICIPAL CORPORATION ATTEST: By7114,41e AC4lariA City C Nicholas A. Gradisar, Mayor Approved as to form: ->4/Y1;t,(1, 4< 7 =It City Attorney C PETE ' AND OUT B _1. - Peter J. Gomez, 'i'le Proprie` Page 3 of 3 FOURTH AMENDMENT TO THE LEASE AND OPERATING AGREEMENT FOR PUEBLO MEMORIAL AIRPORT RESTAURANT THIS FOURTH AMENDMENT ("Amendment") is made and entered into this 1 day of Sp-n) , 202'5("Effective Date"), by and between THE CITY OF PUEBLO, a Municipal Corporation, hereinafter referred to as the "LESSOR," and PETER'S IN AND OUT, owned by Peter J. Gomez as a Sole Proprietor, hereinafter referred to as the "LESSEE." WHEREAS, Lessor leases to the Lessee, a certain area in the Terminal Building located at Pueblo Memorial Airport, Pueblo County, Colorado (herein "Airport") known as the Leased Premises for the sole purpose of conducting a restaurant business therein; and WHEREAS, Lessor and Lessee entered into the Lease and Operating Agreement for Pueblo Memorial Airport Restaurant ("Agreement") dated January 1, 2020 for a term of three years; and WHEREAS, Lessor and Lessee entered into the Amendment to the Lease and Operating Agreement for Pueblo Memorial Airport Restaurant ("First Amendment") dated January 4, 2021, amending the terms of the Agreement because of the COVID-19 pandemic; and WHEREAS, Lessor and Lessee entered into the Second Amendment to the Lease and Operating Agreement for Pueblo Memorial Airport Restaurant("Second Amendment")dated July 1, 2021, amending the terms of the Agreement because of the COVID-19 pandemic; and WHEREAS, Lessor and Lessee entered into the Third Amendment to the Lease and Operating Agreement for Pueblo Memorial Airport Restaurant ("Third Amendment") dated January 1, 2022, amending the terms of the Agreement because of the COVID-19 pandemic; and WHEREAS, Lessee desires to extend the Agreement, and Lessor agrees, upon the terms and conditions as set forth herein. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, Lessor and Lessee agree to amend the Agreement as follows: The Agreement shall be extended for a term of three(3)years("Optional Term") upon the same covenants and conditions therein, beginning January 1, 2023 and terminating on December 31, 2025. II. As rent for the Optional Term, beginning January 1, 2023, Lessee agrees to pay to the Lessor, without offset or deduction, at such places as the Lessor may designate from time to time, for the use of the premises, facilities, concession rights, and privileges, monthly rent of$400.00. III. All monthly payments of rent shall be due on the first (1st) of each month. Payments of Page 1 of 3 rent shall be considered late if received after the tenth (10th) day of the month and a late fee of$100.00 will be assessed against the Lessee. IV. Lessee shall keep and maintain accurate and complete books and records of its restaurant and sales and gross receipts. By the tenth (10th) day of each month, Lessee shall provide Lessor with a record of its sales figures for the last whole month, including any profits or losses. V. Except as expressly modified by this Amendment, the amended Agreement shall remain in full force and effect. Except as hereby modified, the obligations of either party to be performed under the amended Agreement are not waived nor excused in any manner but shall be performed in accordance with the terms and conditions of the amended Agreement as it existed prior to this Amendment. [Remainder of page intentionally left blank.] Page 2 of 3 IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of this day and year first above written. [ SEAL ] CITY OF PUEBLO, A MUNICIPAL CORPORATION ' r ATTEST: By •�a. • re City �.rk Nicholas A. Gradisar, ayor Approved as to form: . 1-<-7fp j/,Q,2 City Attorney PETER' ' • ND OUT By I 4, Pe -r J. Gomez, !1 'roprietor Page 3 of 3