HomeMy WebLinkAbout8164RESOLUTION NO. 8164
• RESOLUTION APPROVING A LEASE BETWEEN PUEBLO,
• MUNICIPAL CORPORATION AND WESTPLAINS ENERGY,
• DIVISION OF UTILICORP UNITED, INC. RELATING TO A
PUBLIC PARKING LOT AND AUTHORIZING THE PRESIDENT
OF THE CITY COUNCIL TO EXECUTE SAME
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1
The Lease between Pueblo, a municipal corporation and WestPlains Energy, a division of
Utilicorp United, Inc. relating to a public parking lot located at 110 Victoria Street, Pueblo,
Colorado, a copy of which is attached hereto, having been approved as to form by the City Attorney,
is hereby approved.
SECTION 2
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.
ATTEST:
City Clerk
INTRODUCED: July 14, 1997
By: Fay B. Kastel i c
Councilperson
President ofqhe Ci Council
LEASE
THIS LEASE entered into as of November 1, 1996 between Pueblo, a municipal
corporation whose address is 1 City Hall Place, Pueblo, Colorado, 81003 (the "City"), and
WestPlains Energy, a division of UtiliCorp United Inc., a Delaware corporation, whose address
is 319 West Fourth Street, Pueblo, Colorado, 81003 ( "WestPlains ").
RECITALS:
A. City is developing and constructing a public project known as the Historic Arkansas
Riverwalk Project (the "HARP ").
B. The parties expect that HARP will increase the value of real property that adjoins
and that is near HARP, including WestPlains' real property. The expectation of increased real
property values is part of the consideration of this Lease.
C. WestPlains is willing to lease to City the real property owned by WestPlains located
at 110 Victoria Street, Pueblo, Colorado, and legally described as Lots 1 through 13, Block 50,
SOUTH PUEBLO, Pueblo County, Colorado (the "Leased Property ") and City is willing to lease
the Leased Property from WestPlains upon the terms and conditions of this Lease.
NOW THEREFORE, in consideration of the foregoing Recitals and mutual covenants
contained herein WestPlains and City agree as follows:
1.1 WestPlains hereby leases to City and City leases from WestPlains the Leased
Property, for use as a public parking lot, and for no other use or purpose, for a term of twenty
(20) years commencing on the date of this Lease and expiring on November 1, 2016, unless
sooner terminated as provided in Article V hereof.
1.2 So long as City is not in default under this Lease, either at the time of exercise or
at the time the Extended Term commences, City shall have the right and option to extend this
Lease for two (2) consecutive terms of ten (10) years (each an "Extended Term ") on the same
terms, covenants, and conditions of this Lease, upon one hundred eighty (180) days notice given
to WestPlains prior to the expiration of the original 20 -year term or the Extended Term,
whichever the case may be.
1.3 City may charge fees for parking spaces and use of the parking area on the Leased
Property.
KC1- 215247.2
1.4 City will make available and provide, without fee or charge, twenty-five (25)
parking spaces on the Leased Property between the hours of 6:00 a.m. through 6:00 p.m., and
ten (10) parking spaces on the Leased Property between the hours of 6:00 p.m. through 6:00
a.m., in a location reasonably satisfactory to WestPlains, for use by WestPlains' customers,
invitees and employees, subject to City's reasonable rules and regulations.
1.5 So long as City performs all of its obligations in this Lease, City's use of the
Leased Property will not be disturbed by WestPlains, or anyone claiming by, through or under
WestPlains.
1.6 Except as specifically set forth in this Lease, this Lease shall be "net" to
WestPlains, and WestPlains shall have no obligation or liability with respect to the operation or
maintenance of the Leased Property, the taxes and assessments levied upon the Leased Property,
or the insurance required by this Lease.
2.1 City will pay WestPlains $10.00 annually as rent during the term of this Lease.
2.2 City, at its cost and expense, will maintain and keep in good repair the Leased
Property and parking areas located thereon, and WestPlains will have no responsibility or
obligation for the maintenance or repair of the Leased Property or any improvements or facilities
located thereon.
2.3 City will pay all utilities servicing the Leased Property.
2.4 City will reimburse WestPlains for all real property taxes and assessments, if any,
levied on the Leased Property, within thirty (30) days after City's receipt of the bill or receipt for
such taxes and assessments.
2.5 City will not make any alterations, additions or improvements to the Leased
Property without WestPlains' prior written approval. All alterations, additions or improvements
made to the Leased Property by City shall upon termination of this Lease remain the property of
WestPlains.
3.1 City will, at its expense, include the Leased Property and City's activities
conducted thereon under City's liability coverage provided through the Colorado
Intergovernmental Risk Sharing Agency (the "CIRSA "). If City no longer participates in CIRSA,
KC1- 215247.2 2
City will carry and maintain commercial liability insurance in amounts not less than the amounts
specified in § 24 -10 -114 C.R.S. Notwithstanding the foregoing, City shall carry such liability
insurance in an amount not less than $1,000,000.00, combined single limit coverage for injury
to persons and damage to property. WestPlains shall be named as an additional insured on all
such liability insurance, and City shall furnish WestPlains with a certificate evidencing such
coverage, showing WestPlains as an additional insured. Nothing in this Lease shall constitute or
be construed to constitute a waiver of any immunities provided to or available to City under the
Colorado Governmental Immunity Act (§ 24 -10 -101 et. seq. C.R.S.) or any other statute or law.
Article IV - Assignment
4.1 City may not assign this Lease or sublet the Leased Property without WestPlains'
prior written approval. In the event City requests WestPlains' approval to an assignment or
subletting of the Leased Property, WestPlains shall have the right, by notice to City given within
ten (10) days of WestPlains' receipt of City's request, to terminate this Lease. City shall have the
right to negate WestPlains' termination of this Lease by withdrawing City's request for
WestPlains' approval of such assignment or subletting, and continuing as the lessee in possession
under this Lease.
4.2 WestPlains may sell, transfer, convey, lease, mortgage and encumber the Leased
Property and its interest in this Lease subject to the terms, covenants and provisions of this Lease
and City's leasehold interest in the Leased Property.
Article V - Default and Termination
5.1 If either party defaults in the performance of any of its obligations hereunder, such
defaulting party shall cure the default within thirty (30) days after receipt of notice form the
non - defaulting parry specifying the default, or such greater time as may be required for curing a
default which cannot be reasonably cured within thirty (30) days.
5.2 If the defaulting party fails to cure such default as provided in Article 5. 1, the
non - defaulting party may upon thirty (30) days additional notice to the defaulting party terminate
this Lease and .exercise any other rights and remedies available to it under law.
5.3 Either party may terminate this Lease, without cause, upon eighteen (18) months
prior written notice given to the other party specifying the date of termination.
5.4 This Lease may be terminated by mutual agreement of WestPlains and City.
5.5 In the event of any litigation or dispute arising under this Lease, the prevailing
party shall be entitled to recover its costs and reasonable attorney fees for such litigation or
dispute from the non - prevailing party.
KCI- 215247.2 3
6.1 Neither party shall cause nor permit any Hazardous Material to be brought upon,
kept or used on or about the Leased Property except in compliance with all applicable federal,
state and local laws and regulations (the "Governmental Regulations ").
6.2 If any Hazardous Material brought upon, kept or used on or about the Leased
Property by either party results in contamination of the Leased Property, such party shall, at its
sole cost and expense, take all remedial action necessary to comply with Governmental
Regulations.
6.3 "Hazardous Material" means any substance, material or waste: (a) defined as a
"hazardous substance" pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act (42 § 9601 et. seq.) and amendments thereto and regulations promulgated
thereunder; (b) containing gasoline, oil, diesel fuel or other petroleum products; (c) defined as a
"hazardous waste" pursuant to the Federal Resource Conservation and Recovery Act (42 USC §
6901 et.seq.) and amendments thereto and regulations promulgated thereunder; (d) containing
polychlorinated biphenyls (PCB's); (e) containing asbestos; (f) radioactive; (g) biological; (h) the
presence of which requires investigation or remediation under any Governmental Regulation or
becomes regulated by and Federal, State or local governmental authority; or (i) which causes a
nuisance upon or waste to the Leased Property.
6.4 To the extent lawfully permitted, City shall defend and hold WestPlains harmless
from and against any and all claims, costs, liabilities or expenses incurred by or asserted against
WestPlains and arising out of the presence upon the Leased Property of any Hazardous Materials
placed or deposited upon the Leased Property from and after the commencement date of this Lease
and prior to the termination of this Lease, except to the extent such Hazardous Materials may have
been placed or deposited upon the Leased Premises by the acts or omissions of WestPlains or its
employees, agents or contractors.
Article VII - Miscellaneous Provisions
7.1 Any notice or other communication required or permitted under this Lease will be
in writing and deemed to have been given (a) when personally delivered, or (b) mailed by certified
mail, postage prepaid, addressed to:
(i) if to WestPlains - WestPlains Energy, 200 West 1st Street, Pueblo,
Colorado, 81003, Attention: President;
KCI- 215247.2 4
(ii) if to City - City of Pueblo, 1 City Hall Place, Pueblo, Colorado, 81003,
Attention: City Manager;
or such other address as either party shall designate in writing.
7.2 Time is of the essence for each and every provision of this Lease.
7.3 This Lease expresses the entire understanding of the parties with respect to the
subject matter hereof and may be amended only by an instrument signed by both parties.
7.4 Whenever this Lease requires the consent or approval of either party, such party
shall not unreasonably delay or withhold its consent or approval. If either party withholds its
consent or approval, its response shall explain its reasons for doing so.
7.5 This Lease shall be governed by the laws of the State of Colorado in all respects
including matters of validity, construction, performance and enforcement. Venue of any action
arising out of this Lease will be proper only in the District Court of Pueblo County, State of
Colorado.
7.6 This Lease shall be binding upon and inure to the benefit of the parties and their
respective successors and assigns.
7.7 The persons executing this Lease on behalf of a party hereto represent and warrant
that such persons and party are duly authorized to execute and deliver this Lease and this Lease
is a valid and binding obligation of such party enforceable against such party in accordance with
its terms.
7.8 Nothing in this Lease expressed or implied is intended nor shall be construed to
confer upon, or give or grant to any person or entity, other than WestPlains and City, any right,
remedy or claim under or by reason of this Lease or any covenant or provision hereof. All
covenants and provisions hereof shall be for the exclusive benefit of WestPlains and City.
7.9 City acknowledges and agrees that: (a) it has had the opportunity to examine and
inspect the Leased Property; (b) City takes possession of the Leased Property in its "as is"
condition; (c) WestPlains has not made, and City has not relied upon, any warranty or
representation with respect to the condition of the Leased Property or its fitness for City's
intended use; and (d) WestPlains shall have no liability to City for the condition of the Leased
Property.
KC1- 215247.2 5
Executed in Pueblo, Colorado the day and year first above written.
PUEBLO, a Municipal Corporation
ATTEST: By:
K .
Cit6CIerk President V the 0 1 ity Council
WESTPLAINS ENERGY, a division of
UtiliCorp United Inc., a Delaware corporation
ATTEST: - By:
t
Title: Title: NPF-c Z R- CoRPoRATE RC -A- ESMATE ` FA GIu rrC-S
KC1- 215247.2 6
STATE OF COLORADO )
ss.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before me this 14th day of .T„i�z ,1917by
Fay B. Kastelic as President of the City Council and Gina Dutcher as City Clerk of Pueblo, a
Municipal Corporation.
Witness my hand and official seal.
My Commission Expires:
8 -21 -99
[SEAL] Ila
Notary Public
STATE
ss.
COUNTY OF Vjqg,, )
The foregoing instrument was acknowledged before me this y day of due. ,19
,L�o s . �i✓.rL as -i* bF Cm2P.
,Es of WestPlains Energy, a division of UtiliCorp United Inc.
Witness my hand and official seal.
My Commission Expires:
CARRY E. OWE^
r. '.iryRubiic- of
a:unussion Expires Aug
[SEAL]
Noi6y 6blic
KC1- 215247.2 7
David J. Galli One City Hall Place
City Manager Pueblo, Colorado 81003
Douglas M. Fitzgerald J U I ED L """"" Phone (719) 553 -2655
Assistant City Manager Fax (719) 553 -2698
Office of the City Manager
May 16, 2006
Mr. Tom Ruth
Director of Business Operations
Aquila Networks
105 South Victoria Street
Pueblo, CO 81003
Re: Parking Lot Lease Amendment
Dear Tom:
As I explained to you in order for Cingular Wireless, Inc. ( "Cingular ") to locate its inbound
service support center facility in the City of Pueblo ( "City ") and employ 500 full -time employees,
the City is required to make certain commitments relating to employee parking.
During the construction of a parking facility, City will need to temporarily use the parking spaces
in the South Victoria Street parking lot (except 25 spaces reserved to West Plains) for Cingular
employees during business hours, subject to the terms and conditions of the November 1, 1996
Lease between the City and Aquila, Inc. d/b /a Aquila Networks (f/k/a WestPlains Energy)
( "November 1, 1996 Lease ") which is for a term of 20 years with two 10 -year options. It is
anticipated the parking structure will be completed in approximately four (4) years.
At the time Cingular employees will commence using the parking spaces, City will pave and stripe
the parking lot.
Therefore, City requests that the November 1, 1996 Lease be modified as follows in order for
City to meet its employee parking commitments to Cingular:
(a) Change Article 5.3 of the November 1, 1996 Lease so that Article 5.3 reads as
follows:
5.3. Either party may terminate this Lease, without cause, upon forty -eight
(48) months prior written notice given to the other party specifying the date of
termination; provided, however, that after May 31, 2010, either party may
terminate this Lease, without cause, upon eighteen (18) months prior written
1
notice specifying the date of termination of this Lease.
(b) Add the following new Article 2.6 to the November 1, 1996 Lease:
2.6. Notwithstanding anything contained herein to the contrary, City may
allow the employees of Cingular Wireless, Inc. to use during business hours
parking spaces in the Leased Premises, except the twenty -five (25) parking spaces
reserved for use by West Plains' customers, invitees and employees by Article 1.4
hereof. Immediately prior to the use of the parking spaces by employees of
Cingular Wireless, Inc., City will, at its expense, repave and stripe the Leased
Premises.
As modified by (a) and (b) above, the November 1, 1996 Lease will remain in full force and effect.
This Letter Agreement will be effective as of the date first set forth above.
If the forgoing is in accordance with your intention and approval, please execute this Letter
Amendment, by duly authorized signature, in the space provided below. Please keep one original
copy of this letter for your records, and send one original back to me at the address above.
Very truly yours,
PUEBLO, a Municipal Corporation
/y
Name: David alli
Title: City Manager
Date: May 19, 2006
AQUILA, INC. d/b /a Aquila Networks (f/k/a
WestPlains Energy)
Name:
Title: l�c n 3,...,1 ,4 4. 67/( '-4-
Date: S/,1 V/ 0 6
2