HomeMy WebLinkAbout6630RESOLUTION NO. 6630
A RESOLUTION APPROVING AN AIRPORT AGREEMENT BETWEEN
PUEBLO, A MUNICIPAL CORPORATION, AND MESA AIRLINES, INC.
AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO
EXECUTE SAME,
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, THAT:
SECTION 1:
A certain Airport Agreement Lease, dated November 1, 1990, a
copy of which is attached hereto and made a part hereof by reference,
after having been approved as to form by the City Attorney, by and
between Pueblo, a Municipal Corporation, and Mesa Airlines, Inc. relating
to the use of the Pueblo Memorial Airport, be and the same is hereby
approved, subject to the conditions as set forth in said Airport Agreement
Lease.
SECTION 2:
The President of the City Council is hereby authorized to execute
said Airport Agreement Lease on behalf of Pueblo, a Municipal Corporation
and the City Clerk shall affix the Seal of the City thereto and attest the
same.
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All net proceeds derived from said Airport Agreement Lease shall
be used for the operation, maintenance and improvement of the Airport.
INTRODUCED October 22, 1990
By KENNETH HUNTER
Councilperson
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APPROVED:
P esident of the City Co ncil
PUEBLO MEMORIAL AIRPORT
AIRPORT AGREEMENT
THIS INDENTURE of Lease, made and entered into this 22 nd day of
OCTOBER , 1990 by and between THE CITY OF PUEBLO, a municipal
corporation, hereinafter called "Lessor" and MESA AIRLINES, INC., hereinafter called "Lessee,"
WITNESSETH:
WHEREAS, Lessor now owns certain real property in the County of Pueblo, State of
Colorado, known as the Pueblo Memorial Airport, hereinafter called "Airport" and Lessee is
engaged in the business of transporting persons, property, cargo and mail by air; and Lessor
desires to lease and grant, and Lessee desires to lease and use, certain premises and
facilities on the Airport, together with certain rights, licenses, and privileges thereon.
NOW, THEREFORE, Lessor does hereby demise and let unto Lessee, for the purpose
of conducting its air transportation service business, and Lessee does hereby lease and take
from Lessor, for such purpose, certain premises and facilities, rights, licenses, services, and
privileges in connection with and on the Airport as follows, to -wit:
1. RIGHTS
(A) Use of Airport The use in common with others of the Airport and its
appurtenances including, if available and functioning, but not limited to: landing field,
runways, aprons, taxiways, roadways, sewer and water facilities, flood lights, landing lights,
control tower, signals, radio aids, and all conveniences for flying, landing and take -offs of
aircraft of Lessee, which use shall include the operation of a transportation system by its
aircraft for the carriage of persons, property, cargo and mail; including without limitation:
loading and unloading of its aircraft; the right to load and unload persons, property, cargo
and mail at the Airport by such motor cars, buses, trucks or other means of conveyances as
Lessee may require in the conduction of its business; and the right to install, maintain, use
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and operate such radio, communications, meteorological and aerial navigation equipment and
facilities in, on, or about the Airport as may be deemed necessary by Lessee for its opera-
tions provided same shall not interfere with Lessor's existing or expanded equipment and
facilities as well as the right, subject to Lessor's approval, to install advertising signs, and the
conduction of any other operation or activity reasonably necessary to the conduct by Lessee
of its air transportation service business or training of its personnel, provided such other
operations or activities will not interfere with the use of the Airport by Lessor or its employees,
agents or their tenants.
(B) Office Baggage Freight Handling and Public Space in Terminal
Building
Lease space shall consist of the exclusive use of 84 square feet of ticket
counter /office space and 30 square feet of baggage and freight handling space, all located in
the Terminal Building. The Lessor shall designate the specific areas to be used by Lessee.
Lessee's designated space is shown on Exhibit "A" attached hereto,
Indoor storage of gasoline - powered equipment and indoor operation of such
equipment is prohibited in the baggage and freight handling area.
Lessor further grants Lessee the option of taking use for its operation of an air
transportation system of sufficient space in any new passenger terminal building which Lessor
may construct during the term hereof, said space and rental therefore to be mutually agreed
upon between Lessor and Lessee. Such use shall include, without limitation, the sale of
tickets, cargo, and the operation of a traffic operations and communication office. Lessee, its
employees, passengers, guests, patrons and invitees shall also have the use, in common with
others, of any public space now available in the Terminal Building, or which may hereafter
may be made available, including, but not limited to, waiting rooms, restrooms, and auto
parking space adjacent to the Terminal Building.
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(C) Miscellaneous Rights of Lessee Including, But Not BY Way of Limitation
Lessee shall have (a) the right of ingress and egress, without charge, to and
from the premises outlined in Paragraphs (A) and (B) above, as shall its employees, passen-
gers, guests, patrons, invitees, suppliers of materials and furnishers of service; (b) the right
to purchase or otherwise obtain property, facilities or services deemed by Lessee to be
required by, or incident to its operations from any persons or organizations it may choose,
provided that such suppliers of materials and furnishers of service have complied with the
requirements of Section 3- 1 -2(c) of the 1971 Code of Ordinances, as amended, of the City of
Pueblo to the extent applicable; and further provided, that in consideration of Lessee's
agreement to pay landing fees for its flights that land at the Airport, persons or organizations
furnishing charter aircraft services to Lessee in substitution of Lessee's scheduled flights shall
be exempt from the requirements of said Section 3- 1 -2(c); (c) except as herein otherwise
specifically provided, the right to use the Airport and appurtenances free of any other
charges, fees, or tolls by Lessor of any nature, direct or indirect or any discriminatory
restrictions by Lessor against Lessee or its suppliers or contractors of property, facilities or
services, for the privilege of using the Airport and appurtenances, including, without limitation,
the privilege of purchasing, using, storing, withdrawing, handling, consuming, loading,
unloading or delivering of any such property or of transporting the same to, from, or on the
Airport, provided such activities are reasonably necessary to the conduct by Lessee of its air
transportation service business.
2. TERM
This agreement remain in effect for a primary term of one year commencing
November 1, 1990 and ending October 31, 1991. The Lessee shall have the option to renew
this Agreement for a one (1) year term, by notice given in writing 60 days prior to the end of
the initial term, upon the same terms and conditions, except that the rental rates and landing
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fees shall be adjusted based on Lessor's actual operating and maintenance costs experi-
enced during the initial term. This Lease shall terminate at the end of the full primary term
and Lessee shall have no further right or interest in the leased premises, except that upon
termination of this Lease for any reason, Lessee shall have the right for a period of ten (10)
days after the date of termination, to remove any or all of its property from the Airport,
provided however, that Lessee shall not be in default in its payments to the Lessor hereunder
and Lessee repair all damage to the Airport caused by such removal.
3. RENTALS AND FEES
Lessee agrees to pay to Lessor for the use of the premises, facilities, rights,
licenses, services and privileges granted hereunder, rentals, fees and charges (there being no
other rentals, fees or charges, and no tolls payable to Lessee during the term hereof)
according to terms specified in Exhibit "B" attached hereto and made a part hereof.
4. MAINTENANCE OF AIRPORT BY LESSOR
Lessor shall provide all janitorial and maintenance services required to keep in
good repair the Airport Terminal Building, and all appurtenances, facilities and services now
or thereafter connected with the foregoing, and shall operate the Airport in all respects in a
manner at least equal to the standards or ratings of Airports of similar size and character
issued by the Federal Aviation Administration. Without limiting the generality of the foregoing,
the maintenance provided for herein shall include the keeping of runways, aprons, strips and
ramps free of snow and other obstructions insofar as reasonably possible. Lessor shall
maintain the premises leased hereunder for Lessee's use in a clean and attractive condition
and shall provide all janitorial and maintenance service necessary to accomplish that end.
Notwithstanding the foregoing, Lessee shall be responsible to repair any damage to Pueblo
Memorial Airport or its facilities caused by it or its agents, employees, or invitees other than
due to normal wear and tear or fire. If Lessor fails to make such repairs or if Lessor shall
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default in the performance of any provision of this Airport Agreement on its part to be
performed, such failures or default shall not give rise to any action or claim by lessee or its
agents, employees or invitees against Lessor; Lessee's only remedy for such failure or
breach is to terminate this Airport Agreement.
5. BUILDING BY LESSEE
Lessee, at its own expense, may construct, install, alter, modify, repair and
maintain in or on any space which is or may be leased by Lessee hereunder and described
in Paragraph 1(B), any improvements that it shall determine to be necessary for use in
connection with its business. No restrictions shall be placed upon Lessee as to the archi-
tects, contractors or materialmen who may be employed by it in connection therewith, who
shall have free ingress and egress from the said premises. Notwithstanding the foregoing, no
improvement to or modification of the leased premises shall be made by Lessee until plans
and specifications therefore have been first approved by Lessor, which approval shall not be
unreasonably withheld, and provided the construction and installation of such improvement to
or modifications of the leased premises shall be in compliance with all applicable laws and
codes and shall not unreasonably interfere with Lessor's operation of the Pueblo Memorial
Airport or Terminal Building.
6. LIABILITY
Lessee agrees to defend, save and keep Lessor harmless from any and all
loss, expense or liability, resulting from negligence of Lessee or any of its employees, agents,
or invitees in their use and occupancy of the leased premises and airport, except that Lessee
shall not be liable for loss or damage to Lessor's property caused by fire or other hazards
insurable under an extended coverage endorsement, including vandalism or malicious
mischief. Lessee agrees to obtain and keep in force throughout the term of the Lease
Comprehensive Public Liability Insurance with limits not less than $1,000,000.00 bodily injury
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and $500,000.00 property damage per occurrence. Lessor and Lessee and all parties
claiming under them hereby mutually release and discharge each other from any claims,
liability or damage caused by or arising from any hazard covered by insurance on the leased
premises and improvements thereon or covered by insurance in connection with any property
on the leased premises, regardless of the cause of the damage of loss.
In the event the premises covered by this Lease are wholly or partially
destroyed or damaged so as to render the whole or a substantial part thereof unfit for
occupancy, and the same cannot be repaired with reasonable diligence within one hundred
twenty (120) days after the happening of such destruction or damage, or if Lessor, in its sole
judgment determines that it is not economically possible to repair same, then this Lease, at
the option of the Lessee or Lessor, shall cease and terminate as of the date of such damage
or destruction. Upon such termination, Lessor shall repay to Lessee any rents theretofore
paid by Lessee with respect to any period subsequent to the date of such termination.
Lessee shall surrender possession of the premises to the Lessor upon such termination. If, in
the sole opinion of Lessor, such destruction or damage can be repaired within one hundred
twenty (120) days, Lessor shall forthwith repair the same with all reasonable diligence, and at
its own expense, and this Lease shall continue in force and effect. During the period of such
repair, the rent shall be abated in the same ratio as that portion of the premises which is
rendered unfit for occupancy bears to the whole.
7. CANCELLATION BY LESSOR
Lessor may cancel this Agreement by giving Lessee thirty (30) days advance
notice, upon or after the happening of any one of the following events:
(A) The filing by Lessee of a voluntary petition in bankruptcy.
(B) The adjudication of Lessee as a bankrupt pursuant to such proceed-
ings.
(C) The appointment of a receiver of Lessee's assets; the divestiture of
Lessee's estate herein by other operations of Law.
(D) The abandonment by Lessee of its conduct of air transportation service
at the Airport.
(E) The default by Lessee in the performance of any covenant or agreement
herein required to be performed by Lessee and the failure of Lessee to remedy such default
for a period of thirty (30) days after receipt from Lessor of written notice to remedy the same;
provided however, that no notice of cancellation, as above provided, shall be of any force or
effect if Lessee shall have remedied the default prior to receipt of Lessor's notice of cancella-
tion.
(F) Recapture of the Airport by the Federal Government and assumption of
full control over aviation activities at the Airport by the Federal Government for a period of
more than thirty (30) days.
(G) Issuance by any Court of Competent Jurisdiction of any injunction in
any way preventing or restraining the use of the Airport or any part thereof for airport
purposes, and the remaining in force of such injunction for a period of at least thirty (30)
days.
(H) No waiver of default by Lessor of any of the terms or conditions hereof
to be performed, kept and observed by Lessee, shall be construed to be or act as a waiver of
any subsequent default of any of the terms and conditions herein contained to be performed,
kept and observed by Lessee and acceptance of rent or part thereof by Lessor shall not
constitute a waiver or any breach by Lessee then existing.
8. CANCELLATION BY LESSEE
Lessee, in addition to any other rights of cancellation given herein or by Law,
may cancel this Agreement in whole or in part, and terminate all or any of its obligations
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hereunder at any time that Lessee is not in default in its payments to Lessor, hereunder, by
giving Lessor thirty (30) days advance written notice, upon or after the happening of any one
of the following events:
(A) The order or the action of the Department of Transportation or other
governmental authority terminating, suspending or relieving Lessee's right or obligation to
operate into and from the Airport.
(B) Issuance by any Court of Competent Jurisdiction of any injunction in
any way preventing or restraining the use of the Airport or any part thereof for airport purpos-
es, and the remaining in force of such injunction for a period of at least thirty (30) days.
(C) Any action by the Federal Government or its agencies refusing to permit
Lessee to operate into, from, or through the Airport such aircraft as Lessee may reasonably
desire to operate thereon, as long as services provided are not less than essential air service
to Pueblo.
(D) The breach by Lessor of any of the covenants or agreements herein
contained and the failure of Lessor to remedy such breach for a period of thirty (30) days
after receipt of a written notice of the existence of such breach; provided however, that no
notice of cancellation, as above provided, shall be of any force of effect if Lessor shall have
remedied the default prior to receipt of Lessee's notice of cancellation.
(E) The inability of Lessor to use said premises and facilities continuing for
a longer period of thirty (30) days due to any deficiency of the Airport or unsafe condition for
operating at the Airport of the type of aircraft then being flown by Lessee or any law, order,
rule or regulation of any appropriate Governmental Authority having jurisdiction over the
operations of Lessee or due to war, or other casualty.
(F) The assumption by the United States Government or any authorized
agency thereof of control of said Airport and facilities or any substantial part or parts thereof.
(G) The erection of any obstacle on or in the vicinity of the Airport which
would occasion a modification of Lessee's air carrier operating certificate or similar authoriza-
tion establishing minimum safety standards for the operation of Lessee.
(H) Upon termination by Lessee of all regularly scheduled flight service.
(1) No waiver of default by Lessee of any of the terms, covenants or
conditions hereof to be performed, kept and observed by Lessor shall be construed to be or
act as a waiver by Lessee of any subsequent default of any of the terms, covenants and
conditions herein contained to be performed, kept and observed by Lessor.
9. CONFORMITY OF AGREEMENT
In the event Lessor shall enter into any Lease or Agreement with any other
scheduled certificated air transport operator with respect to the Airport, containing more
favorable terms than this Agreement, or shall grant to any other scheduled certificated
transport operator rights or privileges with respect thereto which are not accorded to Lessee
hereunder, then the same rights, privileges and more favorable terms shall be concurrently
and automatically made available to Lessee.
10. ASSIGNMENT
Lessee may not assign or sublease the premises leased hereunder without the
consent of Lessor which shall not be unreasonably withheld, except an assignment to a
successor corporation which has merged with, or acquired substantially all the assets of the
Lessee, if such successor corporation should specifically agree in writing to perform this
Airport Agreement.
11. APPLICATION OF PUEBLO CITY CODE
All terms and conditions of this Lease are hereby made subject to the provi-
sions of Title III, Chapter 1 of the 1971 Code of Ordinances of the City of Pueblo, and as
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same may be subsequently amended, and in event of conflict between said Code of
Ordinances and any provision herein, said Code shall control.
12. QUIET ENJOYMENT
Lessor represents that it has the right to lease the Airport, together with the
facilities, rights, licenses, and privileges herein granted, and has full power and authority to
enter into this Agreement in respect thereof, subject to the right of Recapture reserved by the
United States of America. Lessor agrees that, on payment of the rent and performance of the
covenants and agreements hereunder by Lessee, Lessee shall peaceably have and enjoy the
leased premises and all rights and privileges of the Airport, its appurtenances and facilities.
13. REGULATION
Lessee agrees to observe and obey all reasonable regulations imposed by
Lessor during the term hereof, provided the same are consistent with safety and do not
conflict with the regulations and procedures prescribed by the Federal Aviation Administration
for operation of Lessee's aircraft at the Airport.
14. NOTICES
Notices to Lessor provided for herein shall be sufficient if sent by certified mail,
return receipt requested, addressed to Director of Aviation, 31475 Bryan Circle, Pueblo
Memorial Airport, Pueblo, Colorado 81001, and notices to Lessee, if sent by certified mail,
return receipt requested, addressed to Vice President of Corporate Affairs, Mesa Airlines, Inc.,
2325 E. 30th Street, Farmington, New Mexico 87401, or to such other respective addresses
as the parties may designate to each other in writing from time to time.
15. INVALID PROVISION
It is further expressly understood and agreed by and between the parties
hereto that in the event that any covenant, condition or provision herein contained is held to
be invalid by any Court of Competent Jurisdiction, the invalidity of any such covenant,
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condition or provision shall in no way affect any other covenant, condition or provision herein
contained, provided however that the invalidity of any such covenant, condition or provision
does not materially prejudice either the Lessor or the Lessee in their respective rights and
obligations contained in the valid covenants, conditions or provisions in this Agreement.
16. Lessee agrees to operate the premises leased for the use and benefit of the
public.
(A) To furnish good, prompt and efficient services adequate to meet all the
demands for its services at the Airport.
(B) To charge fair, reasonable and non - discriminatory prices for each unit of
sale or service, provided that the Lessee may be allowed to make reasonable and non-
discriminatory discounts, rebates or other similar types of price reductions to volume
purchasers.
17. The Lessee, in the operations to be conducted pursuant to the provisions of
this Lease and otherwise in the use of the Airport, will not discriminate or permit discrimina-
tion against any persons or class of persons by reason of race, color, religion, sex, or
national origin in any manner prohibited by Part 21 of the Regulations of the Office of the
Secretary of Transportation, or any amendments thereto. The Lessor reserves the right to
take such action as the United States Government may direct to enforce this covenant.
18. The Lessee assures that it will undertake an Affirmative Action Program as
required by 14 CFR Part 152, Subpart E, to ensure that no person shall, on the grounds of
race, creed, color, sex or national origin, be excluded from participating in any employment
activities covered in 14 CFR Part 152, Subpart E. The Lessee assures that no person shall be
excluded on these grounds from participating in or receiving the services or benefits of any
program or activity covered by this Subpart. The Lessee assures that it will required that its
covered suborganizations provide assurances to the Lessor that they similarly will undertake
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Affirmative Action Programs and that they will require assurances from the suborganizations
as required by 14 CFR Part 152, Subpart E to the same effect.
19. It is clearly understood by the Lessee that no right or privilege has been
granted which would prevent any person, firm, or corporation operating aircraft on the Airport
from performing any services on its own aircraft with its own regular employees (including but
not limited to maintenance and repair) that it may choose to perform.
20. It is understood and agreed nothing herein contained shall be construed to
grant or authorize the granting of an exclusive right.
21. Lessor reserves the right to further develop or improve the landing area of the
Airport as it sees fit, regardless of the desires or views of the Lessee, and without interference
or hindrance.
22. Lessor reserves the right, but shall not be obligated to Lessee, except as
provided in Paragraph 5 herein, to maintain and keep in repair the landing area of the Airport
and all publicly owned facilities of the Airport together with the right to direct and control all
activities of Lessee in this regard.
23. During the time of war or national emergency, Lessor shall have the right to
lease the landing area or any part thereof to the United States Government for military or
naval use, and if such lease is executed, the provisions of this instrument insofar as they are
inconsistent with the provisions of the lease to the Government, shall be suspended.
24. Lessor reserves the right to take any action it considers necessary to protect
the aerial approaches of the Airport against obstruction, together with the right to prevent
Lessee from erecting, or permitting to be erected, any building or any other structure on or
adjacent to the Airport which in the opinion of the Lessor would limit the usefulness of the
Airport, or constitute a hazard to aircraft.
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25. This Lease shall be subordinate to the provisions of any existing or future
Agreement between Lessor and the United States, relative to the operation or maintenance of
the Airport, the execution of which has been, or may be, required as a condition precedent to
the expenditure of federal funds for the development of the Airport.
26. Regardless of the date of execution, the effective date of this Agreement is
November 1, 1990.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of this
day and year.
DATED THIS 22nd day of OCTOBER , 1990.
THE CITY OF PUEBLO, a municipal corporation
By:
P EStDENT OF CITY COUNCIL
ATTEST:
CITY CLERK
MESA AIRLINES, INC.
:
B Y
GARY RISLEY
VICE PRESI T OF CORPORATE S
ATTEST:
APPROVED AS TO FORM:
CITY ATTORN -
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EXHIBIT B
RENTALS AND FEES
AIRPORT AGREEMENT BETWEEN
THE CITY OF PUEBLO, COLORADO
AND
MESA AIRLINES, INC.
RENTALS
For the period November 1, 1990 through October 31, 1991, the following rental rates
shall apply:
30 square feet of Baggage and Freight Area at $9.07 per square
foot per annum.
84 square feet of Ticket Counter and Office Space at $11.07 per
square foot per annum.
Rentals shall be paid in 12 equal monthly installments in advance without notice and
without setoff or deduction on the first day of each calendar month commencing November 1,
1990.
EMPLOYEE PARKING SPACE
The City of Pueblo at Pueblo Memorial Airport is willing to rent automobile
parking spaces to Mesa Airlines, Inc. to be used by their employees at a location to be
determined by the Director of Aviation.
The rental rate for reserved automobile parking spaces at Pueblo Memorial Airport is
$10.00 per month for each space, payable monthly in advance.
Exhibit B
Page Two
LANDING FEES
Lessee agrees to pay landing fees at the Pueblo Memorial Airport for all revenue -
producing flights of the Lessee that land at the Airport at the rate of thirty -five cents ($.35) per
thousand pounds of maximum allowable gross landing weight of such aircraft, to include any
flight that is diverted to the Airport by the Lessee. The Lessee also agrees to pay landing
fees for all non - revenue (training) flights at the rate of twenty -three ($.23) per thousand
pounds of maximum allowable gross landing weight of such aircraft per actual landing,
provided however that no landing fees shall be due and payable in the event an aircraft
departs from the Airport to return and land at the Airport because of meteorological condi-
tions, mechanical or operating causes or for any similar emergency or precautionary reason.
Within five (5) days following the end of each calendar month, the Lessee shall
transmit to the Director of Aviation a true and accurate report, giving data necessary to
calculate the amount of landing fees. Data for training flights at Pueblo is to be included.
Lessee agrees to pay landing fees monthly within thirty (30) days of receipt of statements
from Lessor.
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EXHIBIT "A"