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HomeMy WebLinkAbout5246RESOLUTION NO. 5246 A RESOLUTION APPROVING A LAND LEASE AND OPERATING AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND FLOWER AVIATION, INC., AND AUTHORIZING THE PRESIDENT OF THE COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that: SECTION 1. A Land Lease and Operating Agreement dated September 12, 1983, a copy of which is attached hereto and made a part hereof by reference, by and between Pueblo, a Municipal Corporation, and Flower Aviation, Inc. relating to a land lease and operation of a Fixed Base Operator located at Pueblo Memorial Airport, be, and the same is hereby approved, subject to the conditions as set forth in said Land Lease and Operating Agreement. SECTION 2. The President of the Council is hereby authorized to exectue said Land Lease and Operating Agreement on behalf of Pueblo, a Municipal Corporation, and the City Clerk shall affix the seal of the City thereto and attest the same. SECTION 3. All net proceeds derived from said Land Lease and Operating Agreement will be used for the operation, maintenance and improvement of the Airport. ATTEST: A,�'t� 1�9&- I i E Clerk Introduced September 26 , 1983 By MIKE SALARDINO Councilman APPROVED: President of the City Council PUEBLO MEMORIAL AIRPORT OPERATING AGREEMENT AND LAND LEASE This Lease made this 12th day of September , 1983 between the City of Pueblo, a Municipal Corporation (herein "City ") and Flower Aviation, Inc. (herein "Lessee "), WITNESSETH: In consideration of the payment of rent hereinafter provided and the keeping and performance of each of the covenants and agreements of the Lessee hereinafter set forth, City has and does hereby lease unto the Lessee the land 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 "Property ") for a term of twenty (20) years from April 1 , 1986 to March 31 , 2006. For and in consideration of the leasing of the Property, Lessee does hereby covenant and agree as follows: 1. Lessee shall fulfill the basic minimum standards and offer the mandatory services and activities set forth and described in the Pueblo Memorial Airport Minimum Standards For Airport Aeronautical Services, May 17, 1977, (herein "Standards "). Lessee hereby acknowledges receipt of a copy of the Standards. In addition to such services and activities, Lessee may on the Property (a) lease automobiles belonging to responsible rental companies or (b) sell and dispense soft drinks, candy and tobacco from coin operated vending machines but not food or food products. 2. Lessee shall pay to City as and for rent, the following: (a) For use of services and facilities presently being provided at the Airport, namely: sewage disposal, public street maintenance, fire protection and public street lighting, an annual service fee based on $200.00 per acre in monthly installment of $80.00 in advance without notice on or before the tenth day of each month during the effective period of this Lease. The service fee, at the sole option of City, may be modified, increased or decreased five years after the commencement of the original term and every five years thereafter during the effective period of this Lease, provided, that if City shall reduce or eliminate any or all of the services and facilities presently being provided, the service fee for the reduced services or facilities shall be determined by mutual agreement of City and Lessee but such fee shall not be less than City's actual cost and expense of providing such services or facilities. For purposes hereof City and Lessee agree that the Property contains 4.8 acres and that the annual service fee for the first five years if $960.00 per year. (b) For aviation fuel sold or dispensed on or from the Property, a flow fee equal to 5.5 cents per gallon for the first 40,000 gallons sold or dispensed each month and 6.5 cents per gallon for each additional gallon. The flow fee shall be paid monthly on or before the tenth day of the following month. (c) For other services and activities, a fee of one percent (1%) of Lessee's gross revenue from all sales, operations, services and activities made, furnished or conducted on or from the Property, except revenue from the sale of aviation fuel. Such fee shall be paid monthly on or before the tenth day of the following month. (d) For use of the land, owned by the Airport, the Lessee shall pay as rental for use and occupancy an annual fee of $ 240.00 per acre, in monthly installments of $ 96.00 in advance without notice on or before the tenth day of each month during the effective period of this Lease. This rental fee is subject to increase every five years from commencement of Agreement. and (d) - A Ir-4 (e) If the total fees payable under (b) and (c) /above are less than $ 73,313.00 (annual guarantee) for any calendar year, Lessee shall pay the difference between the annual guarantee and the total fees paid on or before the twentieth day of January of the following calendar year. If any portion of the term of the Lease is less than a calendar year, the annual guarantee and rent paid hereunder shall be prorated. 3. Lessee shall, within six months after commencement of the original term, construct upon the Property a building having a minimum of 6,000 square feet of net usable floor area in compliance and in accordance with City Building Codes and plans and specifications approved prior to construction by the City. The building will be inspected and approved by City prior to occupancy thereof. Failure to so timely construct said building shall constitute grounds to terminate the Lease upon ten (10) days prior written notice to Lessee. 4. Lessee shall not permit or authorize any person, firm or corporation to conduct commercial flying operations or activities on or from the Property or to use the Property as a base for commercial aviation operations unless authorized by Resolution of the City Council of City and unless such person, firm or corporation pays a landing fee to the City for the use of the Airport as established by Resolution of the City Council of City. Lessee shall collect all such landing fees and remit same to the City less five percent (5 %) thereof for collection costs. Landing fee schedules are available at the office of the Airport Superintendent. 5. Lessee shall not engage in any business or conduct any activity at the Airport or upon the Property other than that which is specifically authorized herein. 6. Lessee shall properly grade and surface with concrete, asphalt, asphaltic concrete or other cover material approved by the City all areas of the Property used for motor vehicle travel or parking and maintain such areas in good condition. 7. Lessee shall keep and maintain the Property in a clean, safe and orderly condition free of waste, rubbish, debris, trash and weeds and shall provide for the sanitary handling and dis- posal of all trash, garbage, waste and other refuse from the Property. All unsightly areas of the Property used for the storage of parts, materials, supplies, equipment or damaged aircraft pending repairs shall be completely enclosed or screened from public view by a solid fence not less than six (6) feet in height. Such fence shall be maintained in good and sightly condition and shall not be used as a sign or for the support of signs. All signs or advertising placed on the Property including any painted or installed on any building or improvement thereon shall be first approved by the City. If Lessee within 48 hours after receipt of notice from City shall not remove waste, rubbish or other debris from the Property and dispose of same, City may cause the waste, rubbish or other debris to be removed and disposed of and the cost thereof plus an amount equal to 100% thereof shall be charged to Lessee as additional rent and be paid by Lessee immediately upon billing therefor. 8. Lessee shall promptly pay when due and discharge all lawful charges, taxes, assessments and liens of whatever kind -2- or nature which may be levied upon or assessed against the Lessee, Property or improvements thereon. Lessee shall furnish and pay all charges for utilities used by Lessee. 9. Lessee shall maintain and keep the Property including all buildings and improvements whether now located or subse- quently constructed thereon in good order and repair at its sole cost and expense. All work and materials required to so maintain the Property shall be performed and furnished promptly and in a workman -like manner. City reserves the right to specify colors to be used in painting the exteriors of buildings and improvements on the Property. Lessee shall paint all buildings in need of painting within six months from the effective date of the original term and thereafter maintain all painting in good condition. 10. Lessee shall keep and maintain records of all business conducted or transacted on or from the Property in accordance with accepted accounting practices. Such records shall be open for inspection by the City or its agents for purpose of exam- ination and audit upon reasonable notice. 11. Lesssee shall construct and maintain at its own expense, free from leaks and unsanitary conditions, all water and sewer service lines other than as shown and designated as "Mains" on the Utilities Map of the Pueblo Memorial Airport, on file in the office of the Airport Superintendent, as may be necessary to his enjoyment and use of the Property. Lessee's use of the sewer is restricted by and made subject to the City's ordinances relating to sewer users and sanitary sewer restrictions. 12. The Lessee represents that he has inspected the Airport and all its premises and facilities including the Property and that he accepts the condition of same and fully assumes the risk incident to the use thereof. The City shall not be liable to the Lessee for any damages or injuries to persons or property which results from hidden, latent, or other dangerous conditions of the Airport. 13. Lessee, its employees and invitees shall have the right of ingress and egress between the main entrance of the Airport, as presently exists, or may hereafter be relocated and the Property over, upon and through such streets and no other as from time to time shall be designated by the Director of Aviation of the City. 14. City shall have full and unrestricted right to enter upon and inspect the Property at all times. 15. Lessee shall make no alterations in or additions to the Property without first obtaining the written consent of City. All additions or improvements placed upon the Property of a permanent nature by Lessee including the building to be constructed by Lessee pursuant to paragraph 3 of this Lease shall be and become the property of City upon termination of this Lease free of all liens, taxes and encumbrances. 16. 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 given to Lessee by 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 City, at its election, with or without notice, to terminate this Lease and to re -enter and repossess the Property, using such force -3- as may be necessary, and to remove from the Property all personal property of Lessee without prejudice to any claim for rent or for breach of covenants, or without being guilty of trespass or forcible entry or detainer. City 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 be placed upon the Property including without limitation business fixtures, 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. 17. If the Property is left vacant and any part of the rent remains due and unpaid, City may, without being obligated to do so, and without terminating this Lease, retake possession of the Property and rent the same for such rent and upon such terms as City 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. Lessee agrees to pay to City all costs, including reasonable attorney fees, of any action brought by City to recover rent or other money due and unpaid under the Lease or to recover possession of the Property, whether such action proceeds to judgment or not. 18. No waiver of any breach of any one or more of the conditions or covenants of this Lease by City shall be deemed to imply or constitute a waiver of such breach or of any succeeding or other breach hereunder. The acceptance of rent by City shall not constitute a waiver of any breach then existing. 19. If Lessee remains in possession of the Property after termination 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 and at a monthly rental equal to two times the average of the monthly payments payable hereunder for the prior twelve months. 20. If, for the purpose of enlarging or extending its terminal Building or for other public purposes, City requires any part of the Property lying west of the Terminal Building, City may terminate this Lease as to that part of the Property so required, provided City leases to Lessee land of similar area which is contiguous to the Property. 21. City reserves for itself, its agents, officers and employees the right of ingress and egress over, upon and through the Property. 22. The General Provisions consisting of paragraph 1 through 22, attached hereto as Exhibit "B ", are incorporated herein and shall be binding upon and inure to the benefit of Lessee and City as if set out herein in full. 23. The flowage fee is subject to review in the event of major repairs or construction at the fuel farm. Any increase in flow fee will not exceed a 20% increase. Any increase or decrease in flow fee will be uniformly applied to all users. MEAM 24. Lessee shall make available and provide on a continuous twenty -four hour daily basis during the effective term of this Lease aircraft fuel and oil dispensing services and the services of a qualified mechanic. 25. Lessee shall maintain the ramp area of the Property in good condition, free of snow, ice, dirt and debris. If Lessee requests City to sweep or remove snow from the ramp or other areas of the Property, City may, at its option, provide such services as time permits at a charge to Lessee equal to 150% of City's cost therefor including a reasonable charge for City's equipment. 26. Lessee shall provide the Civil Air Patrol with a free tie -down space for one airplane on the Property together with the right of ingress and egress over the Property to and from the tie -down space. 27. In the event of a conflict between any provision of the Lease, the Standards or the General Provisions, the General Provisions shall control. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals the day and year first above written. ATTEST: A PPROVED TO FOR PUEBLO, A MUNICIPAL CORPORATION P resident of e City Council ��pW�CQ V 1 �-T7DN � �7V(�• Lessee ATTEST: City Att n Secreta f Lessee), -5- EXHIBIT "A" A parcel of land in the SE 1/4 of the NE 1/4 of Section 25, T -20 -S, R -64 -W and in the SW 1/4 of the NW 1/4 of Section 30, T -20 -S, R -63 -W, more particularly described as follows: Beginning at the W 1/4 corner of Section 30, T -20 -S, R -63 -W; thence North 0 0 08'40" West and along the west line of said Section 30, a distance of 381.54'; thence South 88 1 18 1 05" West, a distance of 225.00'; thence North 01'41'55" West, a distance of 325.66'; thence North 88 °18 East, a distance of 200.00' to the point of beginning; thence con- tinuing North 88 °18'05" East, a distance of 214.00'; thence North 01'41'55" West, a distance of 324.00'; thence North 88 East, a distance of 31.00'; thence North 01 °41'55" West, a distance of 39.00'; thence South 88 1 18'05" West, a distance of 5.00'; thence North 01 °41 West, a distance of 71.00'; thence South 88 East, a distance of 98.00'; thence North 01'41'55" West, a distance of 71.00'; thence North 88 1 18'05" East, a distance of 211.00'; thence South 01'41'55" East, a distance of 71.00'; thence North 88'18'05" East a distance of 200.00'; thence South 01 °41'55" East, a distance of 183.00' to the point of beginning; Said parcel of land contains 4.8 acres more or less. EXHIBIT "B" GENERAL PROVISIONS 1. This Lease is subject and subordinate to the provisions of any existing or future agreement between City 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 Property in the event of a National Emergency. If such right is exercised, the Lease shall terminate and Lessee shall immediately quit and vacate the Property and remove all its property and equipment therefrom. If the Lease is so terminated, neither City or Lessee shall be liable or responsible to the other party for any damages or injury resulting from or occasioned by such termination or on 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 Chapter 1 of Title III of the 1971 Code of Ordinances by the City 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,. City 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. Lessee shall restrict the height of structures, buildings, objects of natural growth and other obstructions on the Property to a height of not more than 4683 feet above sea level. Lessee shall not erect or permit the erection of any structure, or allow trees to grow, or use or permit the Property to be used, in any manner which might interfere with the landing and taking off of aircraft at Pueblo Memorial Airport or otherwise constitute a hazard to aviation. The City reserves the right to take any action it considers necessary to protect the aerial approaches and aeronautical use of the Pueblo Memorial Airport against obstruction or hazards including, without limitation, removing from the Property at Lessee's expense any offending structure, object, use, or growth. 5. City 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 City from any and all damages or injuries resulting from or occasioned by any such actions taken or omitted to be taken by the City. 6. Lessee shall fence non - public areas from public areas within or immediately adjacent to the Property and police the non - public areas within or immediately adjacent to the Property, keeping unauthorized persons or vehicles out of same. 7. 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; and (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 purchasers. 8. The Lessee, as a part of the consideration hereof does hereby further covenant and agree, as a covenant running with the Property, that in the event facilities are constructed, maintained, or otherwise operated on the Property for a purpose for which a Department of Transportation program or activity is extended or for another purpose involving the provisions of similar services or benefits, the Lessee shall maintain and operate such 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 Property, that (a) no person on the grounds of race, color or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of the Property, (b) that in the construction of any improvements on, over, or under the Property and the furnishing of service thereon, no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, and (c) that the Lessee shall use the Property 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 non- discrimination covenants, the City shall have the right to terminate the Lease and to re -enter and repossess the Property and the facilities thereon, and hold the same as if the Lease had never been made or issued. 9. 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 Property, 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 Property and improvements thereon are subject to all ordinances of the City the same as though the Property and Pueblo Memorial Airport was located within the jurisdictional limits of City. 10. Notwithstanding any provision in the Lease or these General Provisions to the contrary, the Lease and the rights granted to Lessee thereunder are not and shall not be construed to be a grant of an exclusive right, privilege or franchise. :f'essee further understands and agrees that no right or privilege granted by the Lease will operate to prevent any person, firm or corporation operating aircraft on Pueblo Memorial Airport from performing any services on its own aircraft with its own regular employees, including, but not limited to, maintenance and repairs that it may choose to perform. 11. The Property and Lessee's use thereof is subject to recorded and unrecorded rights of way and easements and existing lines and facilities for water, gas, sewer, electrical, telephone and other utilities. No buildings or other structures of a permanent nature shall be constructed on, over, adjacent to -2- or under any waterline, sewerline or other utility lines or appurtenant facilities on the Property. Lessee after prior written consent of City may move and relocate such utility lines at its sole cost and expense to another location pur- suant to plans and specifications approved by City. 12. Lessee shall indemnify and save harmless the City, 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, including 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 Property, or based upon any violation of any statute, ordinance, or regulation, except those caused by the negligence of the City, its officers, agents or employees. 13. Lessee shall maintain at its expense during the effective period of the Lease (a) comprehensive general liability, products liability, and automobile insurance against liability for injuries to or death of any person for damage to or loss of property with limits not less than $500,000 combined single limit per occurrance, and (b) workmen's compensation insurance with policy provisions as required by Colorado law. Lessee shall furnish to City certificates from an insurance company acceptable to City 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 City in the event of cancellation or material change in the terms thereof. City reserves the right to reasonably increase the minimum insurance limits set forth in (a) above. 14. 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, deletion, or other amendment shall have any force or effect whatsoever unless specifically included in the Lease. No subsequent novation, 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 resolution or ordinance of the City Council of City. 15. 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 City first had and obtained. If Lessee is a corporation or partnership, a majority interest in the voting stock of the corporation or majority interest in the partnership shall not be sold or otherwise transferred without the prior written consent of City. Any such assignment, transfer or sublease made without prior written consent of the City shall be void and ineffective as to City and shall constitute grounds to terminate the Lease. 16. In case any one or more of the provisions contained herein or in the Lease shall be invalid, illegal or unenforce- able 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. 17. Whenever in the Lease or in these General Provisions any of the parties hereto is named or referred to, the successors and assigns 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 City, shall bind and inure to the benefit of the respective successor and assigns, whether so expressed or not. =19 as may be necessary, and to remove from the Property all personal property of Lessee without prejudice to any claim for rent or for breach of covenants, or without being guilty of trespass or forcible entry or detainer. City 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 be placed upon the Property including without limitation business fixtures, 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. 17. If the Property is left vacant and any part of the rent remains due and unpaid, City may, without being obligated to do so, and without terminating this Lease, retake possession of the Property and rent the same for such rent and upon such terms as City 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. Lessee agrees to pay to City all costs, including reasonable attorney fees, of any action brought by City to recover rent or other money due and unpaid under the Lease or to recover possession of the Property, whether such action proceeds to judgment or not. 18. No waiver of any breach of any one or more of the conditions or covenants of this Lease by City shall be deemed to imply or constitute a waiver of such breach or of any succeeding or other breach hereunder. The acceptance of rent by City shall not consitute a waiver of any breach then existing. 19. If Lessee remains in possession of the Property after termination 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 and at a monthly rental equal to two times the average of the monthly payments payable hereunder for the prior twelve months. 20. If, for the purpose of enlarging or extending its terminal Building or for other public purposes, City requires any part of the Property lying west of the Terminal Building, City may terminate this Lease as to that part of the Property so required, provided City leases to Lessee land of similar area which is contiguous to the Property. 21. City reserves for itself, its agents, officers and employees the right of ingress and egress over, upon and through the Property. 22. The General Provisions consisting of paragraph 1 through 22, attached hereto as Exhibit "B ", are incorporated herein and shall be binding upon and inure to the benefit of Lessee and City as if set out herein in full. 23. The flow fee review will be years after the commencement of the ment. Any increase in flow fee will Any increase or decrease in flow fee to all users. undertaken every five ( 5 ) original term of the agree - not exceed a 20% increase. will be uniformly applied -4-