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HomeMy WebLinkAbout7035RESOLUTION NO. 7035 A RESOLUTION APPROVING AN AIRPORT USE AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND MESA AIRLINES, INC. AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME THAT: BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, SECTION 1• A certain Airport Use Agreement, dated January 1, 1993, 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 Use Agreement. SECTION 2• The President of the City Council is hereby authorized to execute said Airport Use 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 Airport Use Agreement shall be used for the operation, maintenance, and improvement of the Airport. INTRODUCED December 14, 1992 BY JOHN CALIFANO Councilperson WIT-9lii ` President of the City Council ATTEST: City Clerk PUEBLO MEMORIAL AIRPORT AIRPORT USE AGREEMENT THIS INDENTURE of Lease, made and entered into this � day of DC C ,5��, 1992 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 the persons, property, cargo, and mail by air; and Lessor desires to lease and grant, and Lessee desires to lease and use, certain premises and facility on the Airport, together with certain rights, licenses, and privileges thereon. NOW, THEREFORE, Lessor does hereby 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, 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 and operate such radio, communications, meteorological and aerial navigation 1 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 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 operation or activities will not interfere with the use of the Airport by Lessor or its employees, agents or other tenants. (B) Terminal BuildiM Lessee shall be entitled to the use of the following space in the Terminal Building. (1) Counter space - 256 square feet (2) Office space - 269 square feet (3) Outbound baggage space - 451 square feet (4) Passenger Loading space - 72 square feet (5) Record Storage space - 112 square feet 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 Terminal Building, including 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. (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 operation 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. The term of this Lease shall be for the period commencing January 1, 1993, and ending November 30, 1994, unless terminated earlier as provided herein. This Lease shall terminate at the end of the term and Lessee shall have no further right or interest in the leased premise, except that upon termination of this Lease for any reason, Lessee shall have the right for a period of ten 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 3 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 part hereof. 4. MAINTENANCE OF AIRPORT LESSOR. Lessor shall provide all maintenance services required to keep the 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 attractive condition and shall provide maintenance 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 be in default in the performance of any provision of this Airport Lease in 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 Lease. 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 architects, contractors or materialmen who may be employed by it in connection therewith, who shall have free ingress and egress from 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 4 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. Lessor 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, Terminal Building and 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 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, Airport and improvements thereon or covered by insurance in connection with any property on the leased premises, Terminal Building and Airport 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 judgement determines that its is not economically feasible 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 Lease by giving Lessee thirty (30) days advance notice, upon or after the happening of any one of the following events: (A) The filing of Lessee of a voluntary petition in bankruptcy. (B) The adjudication of Lessee as a bankrupt pursuant to such proceeding. (C) The appointment of a receiver of Lessee's assets; the divestiture of Lessee's estate herein by operation 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 by of any force or effect of 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 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 an 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. 6 8. CANCELLATION BY LESSEE. Lessee, in addition to any other rights of cancellation given herein or by law, may cancel this Lease in whole or in part, and terminate all or any of its obligations hereunder at any time that Lessee in 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. (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 purposes, and 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 of Lessor shall have remedied the default prior to receipt of Lessor'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 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 authorization establishing minimum safety standards for the operation of Lessee. (H) Upon termination by Lessee of all regularly scheduled flight service. (I) 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 therein contained to be performed, kept and observed by Lessor. 9. CONFORMITY OF AGREEMENT. In the event Lessor shall hereafter 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 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 provisions of Title III, Chapter 1 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 Lease in respect thereof, 8 subject to the right of Recapture reserved by the United States of America. Except otherwise provided herein, 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 addressed to Director of Aviation, 31201 Bryan Circle, Pueblo Memorial Airport, Pueblo, Colorado 81001, and notices to Lessee, if sent by certified mail, 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 herd 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 provision herein contained, provided however that the invalidity of any such covenant, condition or provisions does not materially prejudice either the Lessee in their respective rights and obligations contained in the valid covenants, conditions or provisions in this Lease. 16. SECURITY. Lessee shall comply with and be responsible for all applicable Federal Aviation Regulations and Airport Regulations, involving all of their leased area, including FAR Part 108, Lessee's FAA approved Standard Security Program and all other Department of Transportation and FAA directives pertaining to 9 airport security. 17. CONDUCT OF BUSINESS. Lessee agrees to operate the premises leased for the use and benefit of the public and that in the operation of its business upon the leased premises the Lessee agrees: (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 purchases. 18. NON - DISCRIMINATION. 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 persons or class of persons by reason of race, color, religion, sex, handicap, 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. AFFIRMATIVE ACTION. 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 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. 10 20. OTHER AIRCRAFT. 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. NON - EXCLUSIVE RIGHT. It is understood and agreed nothing herein contained shall by construed to grant or authorize the granting of an exclusive right. 22. DEVELOPMENT OF AIRPORT. 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. MAINTENANCE. 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. 24. NATIONAL EMERGENCIES. 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 navel use, and if such lease is executed, the provisions of this insofar as they are inconsistent with the provisions of the lease to the Government, shall be suspended. 25. AERIAL APPROACHES. 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. 11 26. UNITED STATES. 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. 27. EFFECTIVE DATE. 1993 Regardless of the date of execution, the effective date of this Agreement is January 1, WX. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of his day and year. DATED THIS /y day of 2G/ER_ 1992. THE CITY OF PUEBLO, a municipal corporation By. _ / A PRESID T OF THE CITY COUNCIL ATTEST: CilrY CLERK MESA AIRLINES, IN ATT T• 2 APPROVED AS TO FORM: CITY ATTO N 12 EXHIBIT B RENTALS AND FEES AIRPORT USE AGREEMENT BETWEEN THE CITY OF PUEBLO, COLORADO AND MESA AIRLINES, INC. For the period January 1, 1993, through November 30, 1994, the following rental rates should apply: (1) 256 square feet of Counter space at $11.07 per square foot per annum. (2) 269 square feet of Office space at $11.07 per square foot per annum. (3) 451 square feet of Outbound Baggage space at $9.07 per square foot per annum. (4) 72 square feet of Passenger Loading space at $11.07 per square foot per annum. (5) 112 square feet of Records Storage at 56.00 per square feet per annum. EMPLOYEE PARKING SPACE The City of Pueblo at Pueblo Memorial Airport is willing to rent 'w) automobile parking spaces to Mesa Airlines, Inc. to be used by their employees at a location to be determined by the Director of Aviation. The rental rate for reserved automobile parking at Pueblo Memorial Airport is 510.00 per month for each space, payable monthly in advance. ACTPAMS FEES Lessee agrees to pay landing fees at the Pueblo Memorial Airport for all revenue - producing flights of the Lessee that land at the Airport at the rate of thirty -five cents ($.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 1 landing fees for all non - revenue (training) flights at the rate of twenty -three (5.23) 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 conditions, 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. OA