HomeMy WebLinkAbout6895RESOLUTION NO. 6895
A RESOLUTION APPROVING AN AIRPORT AGREEMENT BETWEEN
THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND
BRITT AIRWAYS, INC. DBA CONTINENTAL EXPRESS, 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 December 1, 1991, 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 Britt Airways, Inc. dba Continental Express
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.
SECTION 3:
All net proceeds derived from said Airport Agreement Lease shall be
used for the operation, maintenance and improvement of the Airport.
INTRODUCED February 24, 1992
ATTEST:
Cit Clerk
BY JOYCE LAWRENCE
Councilperson
APPROVED:
Presid t of the City Council
PUEBLO MEMORIAL AIRPORT
AIRPORT AGREEMENT
THIS INDENTURE OF LEASE, made and entered into this First day of December, 1991
by and between THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, hereinafter called
"Lessor" and BRITT AIRWAYS, INC. together with its wholly owned subsidiary
ROCKY MOUNTAIN AIRWAY INC., dba CONTINENTAL EXPRESS, 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 the 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 transporation system
by its aircraft for the carriage of persons, property, cargo, and mail; including
without limitation: landing, parking, take -off, servicing, repairings, storing, testing,
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 and operate such radio, communications, meterological and aerial
navigation equipment and facilities in, on, or about the Airport as may be deemed
necessary by Lessee for its operations 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 other tenants.
B. OFFICE, BAGGAGE, FREIGHT HANDLING, AND PUBLIC SPACE IN TERMINAL BUILDING.
Lease space shall consist of the use of 588 square feet of ticket counter and office
space and one -third joint use of 1354 (or 451) square feet of baggage and freight
handling space also 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 in advance of construction between Lessor and Lessee. Such use
shall include, without limitation, the sale of tickets, manifesting of passengers,
and cargo, handling of mail, baggage and cargo and the operation of a traffic
operations and communication office. Lessee, it's 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 be made available,
including, but not limited to: waiting rooms, rest rooms, and auto parking space
adjacent to the Terminal Building.
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,
passengers, 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 charier 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 specifially provided, the right to use the Airport and appurtenances
free of any charges, fees, or tolls by Lessor of any nature, direct or indirect of
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 deliverying 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 shall remain in effect for a term of three (3) years commencing
December 1, 1991 and ending November 30, 1994 This Lease shall terminate at the end
of the full 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 payment to the Lessor hereunder.
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 by Lessee
during the term hereof) according to terms specified in Exhibit "B" attached hereto
and made a part hereof.
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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 of if Lessor shall 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, or 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 architects, contractors or materialmen who may be employed by it in connection
therewith, who shall have free ingress to and egress from the said premises. Not -
withstanding 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 modification 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.
"I
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 this Lease, Comprehensive Public Liability Insurance with
limits not less than $1,000,000.00 bodily injury 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 or arising from
any hazard covered by insurance on the leased premises and improvements thereon
covered by insurance in connection with any property on the leased premises, regardless
of the cause of the damage or 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 judgement 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 forth-
with 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.
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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
proceedings.
C) The appointment of receiver of Lessee's assets; the divesture 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 the 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 cancellation.
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 at least thirty (30) days.
G) Issuance by any Court of Competant Jurisdiction of any injunction in any
way preventing or restraining the use of the Airport or any part
hereof 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 or 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 aceptance of rent or part thereof by Lessor shall not constitute
a waiver or any breach by Lessee then existing.
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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 air 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 of
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 provision
of Title III, Chapter l of the 1971 Code of Ordinances of the City of Pueblo,
and as 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 peaceable have and enjoy the leased premises and all rights
and privileges of the Airport, its appurtenances and facilities.
7
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 registered
mail addressed to Director of Aviation, 31475 Bryan Circle, Pueblo Memorial Airport,
Pueblo, Colorado 81001, and Notices to Lessee, if sent by registered mail, addressed
to Continental Express, Hangar 6, Stapleton International Airport, Denver, Colorado
80207, 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 event of any covenant, condition, or provision herein contained is held to be
invalid by any Court of Competent Jurisdiction, the invalidity of any such covenant,
condition or provision shall in no way affect any other covenant, condition or
provisions 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.
17.
LESSEE agrees to operate the premises leased for the use and benefit of the public.
(A To furnish its services and accommodations on a fair, equal and
non - discriminatory basis to all users thereof.
(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.
18.
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
discrimination against any person 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.
19.
The Lessee assures that it will undertake an Affirmative Action Program as
required by 14 CFR Part 152, Subpart E, to insure 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 require that its covered
Suborganizations provide Assurance to the Lessor that they similarly will undertake
Affirmative Action Programs and that they will require Assurances from the Sub -
organizations as required by CFR Part 152, Subpart E to the same effect.
20.
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.
21.
It is understood and agreed nothing herein contained shall be construed to grant
or authorize the granting of an exclusive right.
E
22.
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.
23.
Lessor reserves the right, but shall not be obligated to Lessee, except as
provided in Pargaraph 4 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.
24.
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.
25.
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 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.
26.
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.
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27.
Regardless of the date of execution, the effective date of this Agreement is
December 1, 1991.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as
of this day and year.
DATED THIS 24 th day of February .1992
The City of Pueblo
A Municipal Corporation
BY
Pre si ent of the Council
ATTEST:
City Clerk
CONTINENTAL EXPRESS
BY: ' Z�
am Ashmore, Sr. V.P.
Government & Airport Affairs
APPROVED AS TO FORM:
City At ney
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TICKET COUNTER AREA - -11 1/2 X 12 = 138 SQUARE FEET
OFFICE --22'8" X 9 = 226 SQUARE FEET
PRIVATE OFFICE --16' X 14' = 224 SQUARE FEET
583 SQUARE FEET
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EXHIBIT — A
AIRPORT AGREEMENT
BETWEEN
THE CITY OF PUEBLO, COLORADO
AND
CONTINENTAL EXPRESS
RENTALS
For the period December 1, 1991 through November 30, 1994 the following rental
rates shall apply.
451 square feet of baggage and freight area at $9.07 per square foot per
annum.
588 square feet of ticket counter and office space at $11.07 per square foot
per annum.
EMPLOYEE PARKING SPACES
The City of Pueblo at Pueblo Memorial Airport is willing to rent three (3) auto
parking spaces to Continental Express Airlinesto be used by their employees, at
a location to be determined by the Director of Aviation.
The rental rate for reserved auto parking spaces at Pueblo Memorial Airport is
$10.00 per month for each space.
LANDING FEES
The Lessee agrees to pay landing fees at the Pueblo Memorial Airport for all
revenue - producing flights of the Lessee that land at the Airport at the rate of
thirty -five cents ($.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 cents per thousand pounds of
EXHIBIT B - 1
maximum allowable gross landing weight of such aircraft per actual landing;
provided however, that no landing fee shall be due and payable in the event
an aircraft departs from the Airport for another destination and is forced to
return and land at the Airport because of meterological conditions, mechanical
or operating causes or for any similar emergency or precautionary reason.
The landing fees shall be determined on the following established maximum
allowable gross landing weights;
De Havilland DHC -7 43,000 pounds
De Havilland DHC -6 -300 12,300 pounds
ATR -42 35,270 pounds
BEECH 1900 16,100 pounds
Within five (5) days following the end of each calendar month, the Lessee shall
transmit to the Director of Aviation, a true report, giving data necessary to
calculate the amount of the landing fees. Data for training flights at Pueblo
is to be included. Lessee agrees to pay monthly statements within thirty (30)
days of receipt of notice from Lessor.
EXHIBIT B - 2