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
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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.
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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
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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
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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
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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 �
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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.