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HomeMy WebLinkAbout7700RESOLUTION NO. 7700 A RESOLUTION APPROVING A LEASE AND OPERATING AGREEMENT BETWEEN THE CITY OF PUEBLO AND MINNEQUA BANK AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME Be it resolved by the City Council of Pueblo that: SECTION 1 A certain Lease and Operating Agreement, 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 the City of Pueblo, a Municipal Corporation, as Lessor, and Minnequa Bank, as Lessee, relating to a Lease for the operation of an ATM and Related Financial Services, located in the Terminal Building at the Pueblo Memorial Airport, be and the same is hereby approved, subject to the conditions as set forth in said Lease and Operating Agreement. SECTION 2 The President of the City Council is hereby authorized to execute said Lease and Operating Agreement on behalf of the City 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 Lease and Operating Agreement will be used for the operation, maintenance, and improvement of the Airport. INTRODUCED SPA ember 11 . 1995 BY: Samu-1 rnrsenti nn Councilperson ATTEST: APP VED: c City C&rk President of the City Council PUEBLO MEMORIAL AIRPORT AUTOMATED TELLER MACHINE (ATM) AND RELATED FINANCIAL SERVICES LEASE AGREEMENT THIS LEASE made and entered into this 11th day of 9/95 between THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, hereinafter referred to as the "LESSOR" and THE MINNEQUA BANK OF PUEBLO, hereinafter referred to as the "LESSEE ". WITNESSETH: That in consideration of the payment of rent hereinafter provided and the keeping and performance of the covenants and agreements of the Lessee, as hereinafter set forth, Lessor has and does hereby lease unto the Lessee and Lessee leases from Lessor, a certain area in the Terminal Building located at Pueblo Memorial Airport, Pueblo County, Colorado (herein "AIRPORT ") described in Exhibit A attached hereto and incorporated herein as if set out in full (herein "Property" or "Leased Premises ") for the sole purpose of conducting an ATM and Related Financial Services business therein for a term of three (3) years from October 1, 1995 If not in default under this Lease, Lessee shall have the option to extend the term of this Lease for three (3) successive two (2) year periods by giving to Lessor ninety (90) days written notice prior to the end of the original term or renewal term, whichever the case may be, of its exercise of such option. The extended term shall be upon the same covenants and conditions except (a) there shall be no further option to extend this Lease, and (b) the rent during the extended term shall be negotiated at the time of renewal. If Lessee does not timely exercise its option to renew, the option to renew shall terminate and be of no further force and effect. 1. RIGHTS AND PRIVILEGES OF LESSEE A. Lessee shall engage in and conduct said ATM and Related Financial Services business at and on the Property for the convenience of patrons and tenants of the Airport and the general public desiring such services at the Airport; which right, without limiting the generality hereof, shall, to the extent of customer demand and subject to the constraints of limited space, include: (1) Fully staffed branch location of Minnequa Bank (2) Teller services (3) Complete loan services (4) Complete deposit services (5) Full service ATM (6) A complete range of business products including international services, cash management, payroll, repurchase agreements, and employee support services. 2 B. The right to equip, install, operate and maintain on the Airport, at Lessee's expense advertising facilities; provided however, that in all cases the number, size, location, general type and design, and the method of installation shall by subject to the prior approval of the Director of Aviation. This limitation shall apply to and include all signs, placards, posters, or other forms of identification or advertising media, installed, placed upon or affixed to the Property exclusively to Lessee hereunder. C. Subject to prior written approval of the Director of Aviation, which approval will not be unreasonably withheld, the right to make improvements, modifications, revisions and other alterations to the Property. Costs of such improvements, modifications, revisions and alterations shall be borne solely by Lessee, and all such improvements, modifications, revisions or alterations shall become and remain the property of the Lessor. D. Lessee, its employees and invitees shall have the right of ingress and egress between the main entrance of the Airport as the same now exists or may hereafter be relocated and the Leased Premises over, upon and through such streets and no other as from time to time shall be designated by the Director of Aviation. E. If Lessee is not in default hereunder, and (1) Lessor determines, in its sole discretion, that a drive -up ATM facility located on the aviation area of the Airport would be in the best interest of Lessor and the public, Lessee shall have the right of first refusal to install and operate such drive -up ATM facility upon terms and conditions as Lessor and Lessee may mutually agree. If Lessor and Lessee are unable to mutually agree upon such terms and conditions within thirty (30) days, the right of first refusal hereby granted shall terminate and cancel. (2) Lessor offers for sale or lease any Lessor owned land in the industrial park area of the Airport to financial service organizations for financial service purposes, Lessor shall give notice thereof to Lessee and Lessee shall have an opportunity to participate in competition procedures for the lease or acquisition of such property. 2. RIGHTS AND PRIVILEGES OF LESSOR A. All rights not herein granted to the Lessee are reserved to the Lessor and nothing herein contained shall be construed to grant or authorize the granting of an exclusive right within the meaning of Section 308 of the Federal Aviation Act of 1958. B. Lessor shall have full and unrestricted right to enter upon those portions of the Airport occupied and leased herein by the Lessee, and Lessor, its agents, or representatives shall be permitted to inspect the same at any reasonable hour. 3 C. Lessor reserves the right to maintain and keep in repair the landing area of the Airport and all publicly owned facilities of the Airport, but shall not be obligated to the Lessee for any failure to so maintain or keep in repair. D. There is hereby reserved to the Lessor, its successors and assigns, for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the premises hereby leased, together with the right to cause in said airspace such noise as may be inherent in the operation of aircraft, now known or hereafter used for navigation of or flight in the air, using such airspace or landing at, taking off from, or operating on Pueblo Memorial Airport. E. It is further understood and agreed that this Lease Agreement is subject to the written prior approval of the Federal Aviation Administration and that the provisions hereof cannot be modified without prior written approval by said Federal Aviation Administration. F. If the Leased Premises or the Terminal Building is damaged by fire or other casualty which render the Leased Premises untenantable, Lessor, in its sole discretion, may either (1) terminate this Lease Agreement, or (ii) repair the damage, in which event rent shall abate until the damages are repaired. 3. OBLIGATIONS OF LESSEE A. Lessee shall, at its sole expense, maintain and keep the Leased Premises and any improvements presently existing or hereafter constructed thereon in good condition, appearance, and state of repair, normal wear excepted. If Lessee should fail to keep and maintain the Leased Premises or improvements thereon in such good order and repair as is reasonably required, Lessor may enter the Leased Premises, without such entering causing or constituting a termination of the Lease Agreement, or an interference with the possession of the Leased Premises by Lessee, and perform the necessary maintenance or repairs to the Leased Premises to the condition required by the Lessor, and the costs of such maintenance or repairs by the Lessor shall be paid by Lessee to the Lessor in addition to the reserved rents. B. Lessee agrees, except as may be otherwise provided in other contracts entered into between the Lessor and Lessee, not to engage in any business at the Airport other than that which is expressly authorized herein. C. Lessee's personnel shall be prompt, courteous, clean and neat in appearance, and shall be trained and qualified to perform any and all services to the public required or contemplated under the terms of this Lease. Lessee shall not employ any person or persons in or about the Leased Premises who shall use improper language, or act in a loud, boisterous, or otherwise improper manner. 4 D. Period of Operation (1) Lessee's ATM operation shall remain open for service twenty -four (24) hours a day, seven (7) days a week. All other services shall be provided during the same days and hours Lessee's main banking facility in Pueblo, Colorado is open for customer services. (2) Any change in the minimum hours or days of operation of the ATM and Related Financial Services business is prohibited without the prior written approval of the Director of Aviation. 4. OBLIGATIONS OF LESSOR Lessor shall furnish heat, air conditioning, and lighting for the Leased Premises. 5. RENTALS A. For the privilege of operating the ATM and Related Financial Services business in the Airport Terminal Building, Lessee shall pay a rental of $369.00 per month, payable in advance on or before the tenth (10th) day of each month throughout the term, at a place to be designated by the Lessor. Said rent is based on the rate of 111.07 per square foot per year for floor space. B. Lessee shall pay additional rent equal to .10 for each foreign ATM transaction to Lessor. A foreign transaction is defined as any transaction utilizing a card not issued by Lessee. Lessee shall make a monthly report of all foreign ATM transactions to Lessor at such places as may from time to time be designated by Lessor, on a form or forms approved by the Director of Aviation. Said report shall be used as the basis for computation of additional rent. Said report shall be submitted no later than the tenth (10th) day of each month for the preceding month, and all additional rent shall be paid no later than the fifteenth (15th) day of each month for the preceding month. 6. INDEMNITY AND INSURANCE A. The Lessee agrees to indemnify, defend, and save the Lessor, its agents, officers, representatives and employees, harmless from and against any and all penalties, liability or loss including costs and attorney fees resulting from claims or court action, whether civil, criminal or in equity, and arising directly or indirectly out of acts of the Lessee, its agents, employees, or servants or through any injury or casualty occurring on the Leased Premises. B. Lessee shall maintain with insurance underwriters satisfactory to the Lessor, a standard form policy or policies of comprehensive general public liability insurance with limits not less than $600,000.00 for any one accident or for any one injury or death and $200,000.00 property damage. Such policies shall name the Lessor as an additional insured. 5 C. Lessee shall furnish a certificate from the insurance carrier or carriers showing such insurances to be in full force and effect during the term of this Agreement or extensions thereof. All said policies shall provide for a minimum of ten (10) days notice to the Lessor in the event of cancellation, nonrenewal or material change in the terms thereof. D. Lessee shall not hold, or attempt to hold, Lessor liable for any injury, including loss of life, to any person, or for damage to any property while on the Leased Premises or the Airport, irrespective of how such injury or damage may be caused or occasioned. 7. DEFAULT HOLDOVER AND NON - PERFORMANCE CONDITIONS A. That if, after the expiration of the term of this Lease, Lessee shall remain in possession of the Leased Premises and continue to pay rent without any express written agreement as to such holding over, then Lessee agrees that all terms and covenants of this Lease shall remain in effect, except that Lessee shall be a tenant from month to month at a monthly rental equal to 150% of the rent for the last month payable hereunder. B. That if the Lessee shall be declared insolvent and bankrupt, or if any assignment of the Lessee's property shall be made for the benefit of creditors or otherwise, or if Lessee's leasehold interest herein shall be levied upon under execution, or seized by virtue of any writ of any Court of Law, or a Trustee in Bankruptcy or a Receiver appointed for the property of the Lessee, whether under the operation of the State or the Federal Statutes, then and in any such case, the Lessor may, at his option, immediately retake possession of the Leased Premises without the same working any forfeiture of any accrued obligations of the Lessee hereunder. C. That if the rent above reserved, or any part thereof shall be in default, or in case of a breach by the Lessee of any of the covenants or agreements herein, the said Lessor may declare this Lease terminated, and after the expiration of three (3) days from the date of the service of a written notice to that effect, be entitled to the possession of the Leased Premises without any further notice or demand. If the Lessor shall become entitled to the possession of the Leased Premises either by the expiration of this Lease or by any violation of any term or provisions as herein provided for, and the said Lessee shall refuse to surrender and deliver up the possession of the Leased Premises, after the service of said notice as aforesaid, then and in that event, the said Lessor may, without further notice or demand, enter into and upon the Leased Premises, or any part thereof, and take possession thereof and repossess them, and expel, remove, and put out of possession the Lessee, using such help, assistance, and force in so doing as may be needful and proper, without prejudice to any remedy allowed by law, available in such cases. D. That in case the Leased Premises are left vacant and any part of the rent herein reserved be due and unpaid, then the Lessor may, without in anyway being obligated to do so, and without terminating this Lease, retake possession of the Leased Premises and rent the same for such rent, and upon such conditions as A the Lessor may think best, making such changes and repairs as may be required, giving credit for the amount of rent so received less all expenses of such changes and repairs, and said Lessee shall be liable for the balance of the rent herein reserved until the expiration of this Lease Agreement. E. In the event the Lease Agreement be terminated as herein provided, Lessor should have and is hereby given a lien upon Lessee's equipment, fixtures, furniture, and inventory located in or upon the Leased Premises for all rent, expenses, attorney fees, and costs then due or to become payable by Lessee hereunder, 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. F. Lessee agrees to pay to Lessor all costs, including a reasonable attorney fees, incurred by Lessor in recovering any rent or other money due and unpaid under the terms of this Lease Agreement or to recover possession of the Leased Premises after termination hereof. 8. GENERAL CONDITIONS A. The terms and conditions of this Lease Agreement and Lessee's rights hereunder 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. In the event of conflict between said Code of Ordinances and any provisions herein, said Code shall control. B. The Lessee, as a part of the consideration hereof, does hereby covenant and agree, as a covenant running with the Leased Premises, that in the event facilities are constructed, maintained, or otherwise operated on the Leased Premises for a purpose for which a Department of Transportation program or activity is extended or for another purpose involving the provision 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, Non - discrimination in Federally- assisted programs of the Department of Transportation -- Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. The Lessee, as a part of the consideration hereof, does hereby covenant and agree, as a covenant running with the Leased Premises, that (1) no person on the grounds of race, color, sex, disability, or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of the Leased Premises, (2) that in the construction of any improvements in the Leased Premises and the furnishing of services thereon, no person on the grounds of race, color, sex, disability, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that the Lessee shall use the Leased Premises in compliance with all other applicable requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non - discrimination 7 in Federally- assisted programs of the Department of Transportation -- Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. That in the event of breach of any of the above non - discrimination covenants, Lessor shall have the right to terminate this Lease C. The Lessee agrees to comply with the notification and review requirements covered in Part 77 of the Federal Aviation Regulations before construction of any future structure or building upon the Leased Premises or before any modification or alteration of any present or future building or structure situated on the Leased Premises is commenced. D. Lessee shall furnish its services and accommodations on a fair, equal, and not unjustly discriminating basis to all users thereof and it shall charge fair, reasonable, and not unjustly discriminating prices for each unit or service, provided that the Lessee may be permitted to make reasonable and non- discriminatory discounts, rebates or other similar price reduction to employees or volume purchasers. E. The Lessee by accepting this Lease expressly agrees for itself, its successors, and assigns that it will not make use of the Leased Premises in any manner which might interfere with landing and taking -off of aircraft from Pueblo Memorial Airport or otherwise constitute a hazard to aviation. In the event the aforesaid covenant is breached, the Lessor reserves the right to enter upon the premises hereby leased and cause the abatement of such interference at the expense of the Lessee. F. This Lease and all the provisions hereof are subject to all rights the United States Government now has, or in the future may have, or acquire, affecting the control, operation, regulation, re -entry upon and taking over of the said Airport including the Leased Premises. G. The Lessee shall observe faithfully all rules and regulations affecting use of the Airport, whether established by the Director of Aviation, by the City or other political subdivision having jurisdiction, by the State of Colorado or the United States, or agencies thereof, including but not limited to rules affecting the operation of motor vehicles upon, to and from the Airport. H. The Lessee, and all officers, agents and employees of Lessee, hereby agree to be bound by and subject to all the Police Ordinances of Pueblo, a Municipal Corporation, at all times while on the Airport, whether acting in the course of Lessee's business or otherwise, to all intents and purposes the same as though the Leased Premises were located within the city limits of Lessor. 1. The Lessee represents that it has inspected the Airport and all its premises and facilities and that it accepts the condition of same and fully assumes the risk incident to the use thereof. The Lessor shall not be liable to the Lessee for any damages or injuries to the property or personnel of the Lessee which result from hidden, latent or other dangerous conditions on the Airport or Leased Premises. u� 9. NOTICE Service of all notices required under the terms hereof shall be deemed complete and effective upon being deposited in the United States Mail, certified mail, with postage prepaid, directly to the City at Pueblo Memorial Airport, 31201 Bryan Circle, Pueblo, CO 81001, and to Lessee at 401 W. Northern Ave.. Pueblo, CO 81004 until either party shall give notice in writing to the other of a change of address. 10. MISCELLANEOUS A. In the event any covenant, term, condition, or section set forth herein is held valid by any court of competent jurisdiction, the invalidity of such covenant, term, or section shall in no way effect the remainder of this Lease Agreement. B. Lessee shall not assign or transfer the whole or any part of this Lease Agreement, or rights and privileges granted herein, without first having obtained the written consent of the City. Such consent shall not be unreasonably withheld by the City. All the covenants, stipulations, and Agreements herein shall extend to and bind the legal representatives, successors, and assigns of the respective parties hereto. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of this day and year. DATED THIS �1 r ! „ day of PUEB M_ NICIPAL CORPORATION BY / �� President of the City Council Attest: City Clerk LESSEE: THE MINNEQUA BANK OF UEBLO BY r TITLE: APPROVED AS TO FORM: --77 ! `- City Attorney