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HomeMy WebLinkAbout7877RESOLUTION NO. 7877 A RESOLUTION APPROVING A LEASE BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND QUALMED, INC. RELATING TO THE PROPERTY KNOWN AS ROCKY MOUNTAIN BANK NOTE BUILDING AND AUTHORIZING THE EXPENDITURE OF $100,000 THEREFOR FROM THE 1992 -2001 SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS FUND Whereas, the City is the owner of Rocky Mountain Bank Note Building (the "Building "), and Whereas, QualMed, Inc. (the "Company ") desires to lease the Building for employee training, staging area and other business activities associated with Company's expansion within Pueblo, Colorado, and Whereas, City is willing to lease the Building to Company and Company is willing to lease the Building upon the terns and conditions contained in the attached Lease; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The Lease dated as of February 1, 1996 between Pueblo, a Municipal Corporation and QualMed, Inc., a copy of which is attached hereto, having been approved as to form by the City Attorney is hereby approved. The President of the City Council is authorized to execute and deliver the Lease in the name of the City and the City Clerk is authorized and directed to affix the seal of the City thereto and attest same. SECTION 2 Funds in an amount not to exceed $100,000 are hereby appropriated and authorized to be expended and made available out of the 1992 -2001 Sales and Use Tax Capital Improvement Projects Fund for the sole purpose of the renovation and/or replacement of the air conditioning refrigeration units for the Building upon delivery to the Director of Finance of the documents required by section 4.5 of the Lease. SECTION 3 The City Council does find and determine that the expenditure of funds from the 1992 -2001 Sales and Use Tax Capital Improvement Projects Fund as set forth in Section 2 of this Ordinance meets and complies with the criteria and standards established by Ordinance No. 5742 and will create employment opportunities justifying the expenditure of public funds. r ATTES _ : City Clerk INTRODUCED: May 28, 1996 By Cathy Garcia Councilperson APPROVED Presi nt of the City ouncil -2- LEASE THIS LEASE entered into as of February 1, 1996 between Pueblo, a Municipal Corporation, City Hall, 1 City Hall Place, Pueblo, Colorado, 81003 (the "City ") and QualMed, Inc., a Delaware corporation, 225 N. Main Street, Pueblo, Colorado, 81003 (the "Company "). RECITALS 1. City is the owner of the real property described in attached Exhibit "A" and improvements thereon (the "Property "). 2. Company is desirous of entering into a lease for the use of the Property. 3. City is willing to enter into a lease of the Property with Company upon the terms and conditions contained herein. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recital and mutual covenants contained herein, City and Company agree as follows: 1. Lease City hereby leases to Company, subject to the terms and conditions herein provided, the Property. Company accepts such lease and agrees to use and occupy the Property in compliance with the terms and conditions of the Lease. Company shall pay $1.00 per year in advance to City as rent for the use and occupancy of the Property. 2. Term The term of the Lease is one (1) year, commencing February 1, 1996 and ending January 31, 1997, unless sooner terminated as herein provided. If Company is not in default hereunder, Company shall have an option to renew this Lease for an additional one (1) year term upon the same covenants and provisions (except this right to renew) upon giving to City written notice of the exercise of this option on or before January 1, 1997. 3. Use. Company shall use the Property solely for the purpose of employee training and other business activities associated with Company's expansion within Pueblo, Colorado, including, but not limited to, staging area for expansion. 4. Conditions of Use Company's use of the Property are subject to and conditioned upon the following covenants which Company agrees to perform and comply with: 4.1 In the use and occupancy of the Property, Company shall comply with all applicable ordinances, laws and regulations affecting the Property and the use thereof by Company, including without limitation, environmental and hazardous waste laws, ordinances and regulations. 4.2 City shall not be obligated to repair, maintain or alter the Property or any part thereof. Company shall maintain the Property and adjacent sidewalks in good condition, appearance and state of repair regardless of cause of need for maintenance and repairs except those necessitated by reasonable wear and tear and insured casualty. Company shall upon the termination or expiration of the Lease deliver and surrender the Property to City in good condition, appearance and state of repair with reasonable wear and tear excepted. 4.3 Company shall not permit or create waste upon the Property nor cause or permit through Company's acts or defaults any lien or encumbrance to be placed on or asserted against the Property. 4.4 If the presence of Hazardous Materials on the Property caused by, or permitted by Company through its acts or defaults, or the activities conducted on the Property by Company results in contamination of the Property, then Company shall be responsible to remove, clean up and remediate such contamination and Company shall indemnify, defend and hold the City harmless from all claims, judgments, damages, penalties, fines, costs, liabilities or losses, including all expenses and reasonable attorney fees which arise, directly or indirectly, during or after the expiration or termination of the Lease as a result of such contamination or the failure of Company to comply with applicable federal, state and local environmental and hazardous waste laws, ordinances and regulations. The term "Hazardous Material" includes, without limitation, any material or substance that is (i) defined or designated as a "hazardous substance," "hazardous waste" or a "regulated substance" under applicable state or federal law or regulation, (ii) petroleum products, or (iii) asbestos. Company shall not be responsible for any Hazardous Materials existing on the Property on February 1, 1996 except to the extent Company's use or activities conducted on the Property causes or results in the release or discharge of such Hazardous Materials. 4.5 City may enter the Property at any reasonable time to view the Property and examine the conditions thereof, and for any lawful purpose necessary to enforce applicable laws and ordinances and the provisions of the Lease. 4.6 Company acknowledges and agrees that City makes no warranties or representations whatsoever with respect to the condition of the Property or any improvements thereon, environmental or otherwise. Company acknowledges that it has had the opportunity to inspect the Property and agrees to take possession and use of the Property in its present condition "AS IS." 4.7 Company shall cause the Property to be inspected and Company at its expense will make all repairs and improvements required for Company's use and occupancy of the Property. All improvements of a permanent nature shall be made only after prior approval of the City, which approval will not be reasonably withheld. All improvements approved by the City shall remain the property of City upon termination of the Lease. Company shall remove its equipment, trade fixtures and improvements (except improvements of a permanent nature approved by City) upon termination of the Lease and repair all damage to the Property caused by such removal. -2- 4.8 City will advance and make available to Company, an amount not to exceed $100,000.00 for renovation and/or replacement of the air conditioning refrigeration units for the Property (the "Renovation ") subject to and conditioned upon: (a) City's approval of the plans and specifications for the Renovation, which approval will not be unreasonably withheld or delayed. (b) All construction contracts for the Renovation shall be awarded after competitive bidding which allows qualified local contractors to reasonably participate in the competitive bidding procedures. (c) Company filing with the Director of Finance of City written requests for payment certified by an officer of Company that the amounts included in the requests for payment are for the actual cost of the Renovation, identifying the Renovation for which payment is sought, including certificates from the architect or contractor that such Renovation has been installed and constructed in accordance with the approved plans and specifications. (d) The $100,000 is separate from and not included in the $4.5 million to be made available to Company in exchange for Company's Employment Commitments. 5. Company's Representations Company represents and warrants that: 5.1 Company is a corporation duly organized and existing in good standing under the laws of the State of Delaware. 5.2 Company has approved and authorized, by all necessary actions and approvals, the Lease and its execution and delivery by its undersigned officers. 5.3 The Lease constitutes the valid and legally binding obligations of Company and is enforceable against Company in accordance with its terms. 6. Utilities Company shall at its expense install, extend and maintain all utility services to the Property and pay all charges for all utilities serving the Property. City will not be obligated to furnish or provide any utilities or services of any kind. 7. Taxes Company shall pay, before same become delinquent, all taxes assessed, levied or imposed against the Property, the Company pursuant to §39 -3 -135, C.R.S., Company's personal property thereon, and all activities conducted on the Property by Company. 8. Insurance and Liability 8.1 Company shall, at its expense, maintain and keep in force (i) commercial -3- general liability insurance for the Property and all activities conducted thereon naming the City as an additional insured as its interests may appear, in amounts not less than $1,000,000 per occurrence with $2,000,000 in the aggregate for property damage and personal injury including contractual coverage, and (ii) workers' compensation insurance required by Colorado law. Company shall furnish copies or certificates of such insurance to the City's Director of Finance. Company and City mutually release and discharge each other from all claims, liability or damage caused by or arising from any hazard covered by fire and extended coverage insurance, regardless of the cause of damage or loss. 8.2 Company shall be in control and possession of the Property as provided herein, and City shall not, in any event whatsoever, be responsible or liable for any injury or damage to any property or any person while on the Property or resulting from or arising out of the use of the Property by Company or activities conducted thereon. As to the City only, Company agrees to assume the risk of all injuries, including death resulting therefrom, to persons, and damage to and destruction of property, including loss of use thereof resulting from or arising out of, directly or indirectly, wholly or in part, any activities or prosecution of work undertaken by Company on the Property or the use of the Property by Company or the use of the Property by others under Company's supervision or control or with the permission of Company. 8.3 Notwithstanding any provision of the Lease to the contrary, no term or condition of the Lease shall be construed or interpreted as a waiver, either express or implied, of any immunities, rights, benefits or protection provided or available to City under applicable law including without limitation those provided and available to City under the Colorado Governmental Immunity Act, §24 -10 -101, et seq. C.R.S., as amended or as may be amended. The parties understand and agree that the City's and its officers', agents' and employees' liability for claims for injury to persons or property is controlled and limited by the provisions of §24 -10 -101, et seq., C.R.S. as amended or as may be amended. Any provision of the Lease, whether or not incorporated herein by reference, shall be controlled, limited and otherwise modified so as to limit any liability of the City, its officers, agents and employees to the above cited law. 9. Termination and Default 9.1 If the Property shall become untenantable because of fire or other insured casualty, Company may terminate the Lease upon ten (10) days notice. 9.2 If either party is in default hereunder, the non - defaulting party may given written notice describing the default to the defaulting party. If the defaulting party does not correct such default within thirty (30) days after receipt of said notice, or if the default cannot be corrected within said 30 -day period and the defaulting party fails to commence action to correct the default within said 30 -day period and thereafter diligently pursue corrective action, the non - defaulting party may upon an additional ten (10) days notice terminate the Lease and, except for accrued rights and liabilities hereunder, upon such termination each 0 party shall be released from all future duties and obligations hereunder. 9.3 The Lease shall terminate upon Company's substantial completion of the remodeling of the building commonly known as the Amherst Building, Pueblo, Colorado (the "Building ") for Company's use and occupancy. Company shall immediately after transfer of the Building to Company commence remodeling of the Building and thereafter expeditiously complete such remodeling. In the event of any dispute with respect to whether the remodeling of the Building is substantially completed, the architect engaged for such remodeling shall, based upon the construction documents therefor, resolve such dispute. 9.4 Upon termination of the Lease for any reason, all rights of Company hereunder shall cease and terminate and Company shall immediately and peacefully surrender and deliver possession of the Property to City or the transferee from City. 10. Notice Any notice required or permitted herein shall be in writing and delivered personally or by first class mail, postage prepaid, as follows: (a) If to City, I City Hall Place, Pueblo, Colorado, 81003, Attention: City Manager. (b) If to Company, 225 N. Main Street, Pueblo, Colorado, 81003, Attention: Legal Department. Each party reserves the right to change its address provided notice of such change is given in accordance herewith. 11. Eminent Domain If the Property shall be taken by right of eminent domain, in whole or in part, for public purposes, the Lease shall terminate and all damages which may be awarded for such taking shall belong to and be the sole property of City. 12. Miscellaneous Provisions 12.1 No assent, express or implied, by City to any breach or default by Company in the performance of any one or more of the covenants hereof shall be deemed or taken to be a waiver of any succeeding breach of or default in the same or different covenant. 12.2 In the event of any litigation arising out of the Lease, the court shall award to the prevailing party all costs and expenses, including but not limited to, reasonable expert witness and attorney fees. 12.3 Time is of the essence. The Lease shall be binding upon and inure to the benefit of the parties and their respective successors and approved assigns. 12.4 Except to affiliates of Company, Company shall not assign the Lease or any of its rights thereunder nor sublet the Property without the prior consent by resolution of the -5- City Council of City. 12.5 No amendment or modification of the Lease shall be effective unless in writing and signed by all of the parties hereto. 12.6 The Lease constitutes the entire agreement of the parties with regard to the lease of the Property hereof and supersedes any and all prior agreements and understandings whether oral or written. 12.7 At all times during the performance of the Lease, the parties shall adhere to and be bound by all applicable federal, state and laws, ordinances and regulations. 12.8 Nothing in the Lease, expressed or implied, is intended nor shall be construed to confer upon, or give to, any person or entity other than the City or Company any right, remedy, or claim under or by reason of the Lease or any covenant, condition or provision hereof, and all covenants, conditions, provisions and agreements contained in the Lease by or on behalf of City or Company shall be for the exclusive and sole benefit of City and Company and its affiliates. IN WITNESS WHEREOF, the parties have executed the Lease in Pueblo, Colorado as of the day and year first above written. ATTEST: s'� City Cler ATTEST: i Title: PUEBLO, a Municipal Corporation By Preside t of the City Council QUALMED, INC. By � -6- EXHIBIT A LEGAL DESCRIPTION All of that portion of Block 33 in the Town, now City of Pueblo, according to the plan of Pueblo made for the Probate Judge of Pueblo County, Ii. M. Fosdick, Engineer, in March 1869, bounded and described as follows: BEGINNING at the point of intersection of the South line of Fourth Street with the East line of Court Street; thence South and along the East line of Court Street 119.85 feet to the point of intersection of the East line of Court Street with the North line of the alley in said Block 33; thence Easterly and along the North line of the alley in said Block 33 140.02 feet to a point; thence Northerly and parallel with the East line of Court Street 119.71 feet to a point in the South line of Fourth Street; thence Westerly and along the South line of Fourth Street 140.02 feet to the POINT OF BEGINNG, being the same property sometimes described as Lots 6, 7, 8 and the West 8 feet of Lot 5, Block 33 of the Town, now City of Pueblo, according to the plan of PUeblo made for the Probate Judge of Pueblo County by H. M. Fosdick, Engineer in March 1869.