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HomeMy WebLinkAbout09981RESOLUTION NO. 9981 A RESOLUTION APPROVING LEASE AGREEMENT (NUMBER 2) BETWEEN THE CITY OF PUEBLO AND BESSEMER HISTORICAL SOCIETY RELATING TO LEASE OF SPACE IN THE BUILDING COMMONLY KNOWN AS 1612 EAST ABRIENDO, PUEBLO, COLORADO 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 Agreement (Number 2) between the City and Bessemer Historical Society dated as of November 1, 2003 relating to lease of space in the building commonly known as 1612 East Abriendo, Pueblo, Colorado, a copy of which without exhibits is attached hereto and the original with exhibits attached is on file in the office of the City Clerk, 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 Agreement (Number 2) in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. INTRODUCED November 10, 2003 BY Al Gurule/Councilperson APPROVED: Bill Sova/President of City Council ATTEST: Gina Dutcher/City Clerk LEASE AGREEMENT (Number 2) THIS LEASE AGREEMENT entered into as of November 1, 2003, between Bessemer Historical Society, a Colorado nonprofit Corporation, 1612 E. Abriendo Avenue, Pueblo, Colorado, 81004 (herein "Landlord") and City of Pueblo, a municipal corporation, I City Hall Place, Pueblo, Colorado 81003 (herein "Tenant"). VVITNESSETH: RECITALS A. Landlord is the owner of the real property and improvements thereon legally described in Section 1 of this Lease Agreement. (the "Property"). B. Located on the Property is the building commonly known as the CF&I "Metal Building" with the street address of 1612 East Abriendo, Pueblo, Colorado,81004 (the "Building"). C. Landlord desires to lease 10,000 square feet of space in the Building as is more particularly described in Section 1 of this Lease Agreement. (the "Premises"). D. Landlord desires to lease the Premises to Tenant and Tenant is willing to lease the Premises from Landlord. E. Landlord also owns lands and buildings which are immediately adjacent to the Premises and part of which are the subject of a previous lease between the parties hereto. (Lease Agreement No. 1). The parties also desire to make an amendment to the original lease to make certain corrects and to also make its commencement date and termination date coordinate with this Lease Agreement No. 2 LEASE In consideration of the foregoing Recitals and mutual covenants contained herein, Landlord and Tenant agree as follows: 1. Demise. Landlord leases to Tenant and Tenant hereby leases from Landlord upon the terms and provisions set forth in this Lease Agreement, a portion of the premises the legal description of which is set forth on Exhibit A attached hereto and incorporated herein by this reference. The parties stipulate and agree that the portion of the Premises being leased hereunder consists of 10,000 square feet as is more particularly described and delineated in red marker on Exhibit B attached hereto and incorporated herein by this reference. Landlord further agrees that Tenant shall have nonexclusive access to and nonexclusive use of the restrooms which are located in the central portion of the Building as are outlined in blue marker on Exhibit B. Landlord further agrees that Tenant, its officer, agents and employees shall have exclusive -1- access to and exclusive use of the entryway to the metal building located at the northeast corner of the metal building from the east side parking lot and Landlord further agrees that such persons shall, in addition, have nonexclusive access to and nonexclusive use of the entryway to the metal building located on the north side of such building. In conjunction with the Lease of the Premises as described herein, Landlord hereby assigns to Tenant and Tenant shall have the right to use thirty (30) outdoor parking spaces in the area immediately adjacent to and east of the building of which the leased premises are a part. In addition, Tenant may, subject to availability, and Landlord's rules and regulations relating thereto use for itself or its invitees and employees parking spaces not exclusively assigned to other tenants of the building or reserved for Landlord and its employees. Tenant shall self police its assigned spaces and Landlord shall not be liable if others, including other tenants, park in or obstruct Tenant's assigned spaces. 2. Use. Tenant will use the Premises for the housing and provision of City services as it, in its discretion, so determines and may use it for any public use consistent with the City's activities. 3. Term. The Lease Term shall be five (5) years commencing on November 1, 2003, and ending sixty (60) months thereafter. Neither the Lease Term nor this Lease may be terminated by Landlord except as may be expressly provided herein. Tenant may terminate this Lease at any time. 4. Rent. Tenant has prepaid the rent for the entire five year term of this Lease in advance in the sum of Three Hundred Thousand Dollars ($300,000.00), (the "Rent"). 5. Payments by Tenant. Tenant and Landlord acknowledge and agree that ail financial obligations of Tenant hereunder shall constitute currently budgeted expenditures of Tenant, if specifically appropriated by Tenant for that purpose. The financial obligations of the Tenant under this Lease shall be from year to year only, and shall not constitute a mandatory payment obligation of the Tenant in any fiscal year beyond a fiscal year during which funds are specifically budgeted and appropriated for such purpose. In the event that the monies for the financial obligations of Tenant hereunder are not budgeted or otherwise made available for the succeeding year during any year of the term of this Lease, then this Lease shall terminate without further actions of the party and possession of the leased premises shall be promptly returned to Landlord. No provision of this Lease shall be construed or interpreted as creating a general obligation or other indebtedness of Tenant within the meaning of any constitutional, statutory or Charter debt limitation. No provision of this Lease shall be construed or interpreted as a delegation of governmental powers nor as a donation by or a lending of the credit of Tenant, or as creating a multiple-fiscal year direct or indirect debt or other -2- financial obligation whatsoever of Tenant or a general obligation or other indebtedness of Tenant within the meaning of any constitutional Charter or statutory debt limitation, including without limitation, Article X, Section 20 or Sections 1, 2 or 6 of Article XI of the Constitution of the State. This Lease shall not directly or indirectly obligate Tenant to make any payments beyond those appropriated for any fiscal year in which this Lease shall be in effect. No provision of this Lease shall be construed to pledge or to create a lien on any class or source of Tenant moneys, nor shall any provision of this Lease restrict the future issuance of any Tenant's bonds or obligations payable from any class or source of Tenant moneys. 6. Taxes. Landlord shall pay before delinquent all real estate taxes levied or assessed against the Property including the Building and Premises. Tenant shall pay all taxes levied or assessed upon Tenant's equipment, furniture, fixtures, and other personal property located in the Premises. 7. Utilities. Tenant shall be responsibility for and pay for its proportionate share of all utilities including electrical, water, gas, sewer utility and trash service on or to the Property. Tenant's proportionate share of such utility services to the leased Premises on a monthly basis shall be computed by apportioning the respective utility charges according to Tenant's leased floor area against all of the floor area within the Building. Notwithstanding the foregoing, if, in fact, a particular utility is separately metered to the leased premises, then Tenant shall be responsible and pay for such service as is indicated by the separate metering. In addition, in the event that a stormwater discharge or similar fee is imposed by the City of Pueblo, the County of Pueblo, the Pueblo Board of Water Works and/or the State of Colorado or any other responsible governing entity having jurisdiction during the term of this Lease, then Tenant shall pay its fairly apportioned share of such fee based upon the number of square footage Tenant leases bears to the total amount of square footage of Landlord's property. 8. Repairs. Landlord agrees to maintain the structural soundness of the building in which the leased premises are situated and to be responsible for the condition of the roof of the same and keeping it in good repair. Landlord shall also be responsible for maintaining in good repair all plumbing, electrical wiring, air conditioning and heating equipment such as serve the leased premises. Tenant agrees to maintain the interior of the leased premises in good repair. Tenant shall not be responsible for damage caused by wind, fire, hail, or other perils beyond the control of Tenant except in accordance with this Lease, nor shall Tenant be responsible for ordinary wear and tear. 9. ~ment. Tenant shall, and may peacefully have, hold and enjoy the Premises, subject to the other terms hereof, provided that Tenant pays the rental herein recited and performs all of Tenant's covenants and agreements herein contained. -3- 10. Alterations. Tenant may make any additions, alterations or improvements in or to the Premises ("Alterations") with the Landlord's written consent which shall not be unreasonably withheld or delayed. Tenant shall have the right to remove or replace its furniture, equipment, removable trade fixtures, and Alterations, provided Tenant repairs any damage caused by such removal. The failure of Tenant to remove its fixtures, Alterations, or any of its property within thirty (30) days after the termination of this Lease shall be deemed abandonment of such property at the option of Landlord. 11. Right of Entry. Landlord reserves and shall at all reasonable times and upon forty-eight (48) hours prior written notice given to Tenant, have the right, when accompanied by a representative of the Tenant, to enter the Premises to inspect the same, and to alter, improve, or repair the Premises and any portion of the Building without abatement of rent, and may for that purpose erect, use and maintain scaffolding, pipes, conduits and other necessary structures in and through the premises where required by the character of the work to be performed, provided entrance to the premises shall not be denied Tenant, and further provided that the business and occupancy of Tenant shall not be unreasonably interfered with. Tenant shall cooperate with Landlord and shall make available a Tenant representative during Landlord's inspections. Landlord shall have the right to use any and all means which Landlord may deem necessary or proper to enter the premises in an emergency. Any such entry to the Premises shall not be construed or deemed to be a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction, of Tenant. Tenant shall permit Landlord (or its designees) to enter the Premises to erect, use, maintain, replace and repair, pipes, cables, conduits, plumbing, vents and telephone, electric and other wires or other items, in, to and through the Premises, as and to the extent reasonably necessary or appropriate for the proper operation and maintenance of the Building. All such work shall be done in such manner as to minimize interference with Tenant's occupancy and use of the Premises. Nothing in this Section shall be construed or interpreted to change or contradict the provisions of this Lease concerning the apportioned responsibility for maintenance and repairs between Landlord and tenant. 12. Liability Insurance. Tenant shall, at Tenant's expense, maintain during the term of this Lease a policy or policies of commercial general liability insurance with the premiums thereon fully paid on or before due date, issued by and binding upon an insurance company authorized to do business in the State of Colorado, or shall continue its participation in CIRSA. Such insurance or participation in CIRSA shall afford minimum protection of not less than the amounts provided in the Colorado Governmental Immunity Act, Article 10 of Title 24, C.R.S. Any public liability insurance acquired in accordance with this Section may be blanket insurance policy or policies. 13. Casualty Insurance. Landlord shall maintain casualty and property damage insurance on the Property including the Building and Premises. Said insurance shall be maintained with an insurance company authorized to do business in Colorado, in amounts not less than full replacement value of the Building including the Premises. The cost of the casualty insurance shall be prorated between the parties 4w based upon the ratio the square footage being leased hereunder bears to the total square footage owned by Landlord consisting of the metal building. Tenant shall pay to the Landlord an additional sum each month representing its prorated cost of such insurance coverage. Landlord shall present to Tenant a copy of said insurance policy and the invoice or other billing for the same in order to substantiate the amount owed and payable by the Tenant for its prorated portion of the cost of said insurance. If the premises or the building is damaged by fire or other hazard, Landlord shall be entitled to and shall receive all insurance proceeds payable for such damage. Thereafter, Landlord may cause the building to be repaired and the rent, if any is otherwise due and owing, will be abated for such period of time as the premises remains completely untentantable; however, if the building is destroyed or so damaged that the Landlord shall decide that it is inadvisable to repair it, this Lease shall then cease and terminate and any cost to the Tenant hereunder shall be adjusted to the date when such fire or other damage occurred. Within ten days after the occurrence of such fire or damage, Landlord shall notify Tenant in writing whether it intends to rebuild or abandon the premises and, if it intends to rebuild, the completion date of the restoration. If the Landlord elects not to rebuild and so notifies Tenant, then Tenant shall be released from the terms of the Lease and all Tenant costs hereunder shall be prorated to the date of loss. In addition, if Landlord elects not to rebuild, Landlord shall, from the proceeds it receives from the casualty insurance, refund to Tenant a pro rata portion of the rent which City has previously paid covering the entire term of the Lease. If the Landlord elects to rebuild but the estimated time frame of rebuilding is more than 90 days, Tenant may, at its option, terminate within ten days after receipt of the notice from Landlord of Landlord's intent to rebuild. In the absence of written notice as required under this paragraph, actual notice, if any, shall be deemed adequate. Tenant shall maintain at its expense casualty and property damage insurance on all of its personal property, including removable trade fixtures Whenever (i) any loss, cost, damage or expense resulting from any period described in this section is incurred by any party to this Lease in connection with the Building or Premises, or any part or contents thereof, and (ii) such party is then covered in whole or in part by insurance with respect to such loss, cost, damage or expense, then the party so insured hereby releases the other party, its officers, agents and employees from any liability it may have on account of such loss, cost, damage or expense to the extent of any amount recovered by reason of such insurance and waives any right of subrogation which might otherwise exist in or accrue to any person on account thereof. If either Landlord or Tenant fails to maintain in force any insurance required by this Lease to be carried by it, then for purposes of this waiver of subrogation the party failing to carry such insurance shall be deemed to have been fully insured and to have recovered the entire amount of its loss. 14. Public Taking. If the Premises, or any part thereof, is taken by or transferred under threat of condemnation, this Lease shall terminate on the date the Premises shall be so taken or transferred and all costs due and owing on behalf of the Tenant shall be apportioned as of that date. No part of any condemnation award or -5- payments in lieu thereof made by the condemning authority shall belong to the Tenant, except Tenant shall be entitled to payments made by the condemning authority for alterations made to the Premises by Tenant and relocation expenses. 15. Default. a. If either Landlord or Tenant defaults in the performance of any covenant or condition which it is required to observe and to perform hereunder, and such default shall continue for thirty (30) days after the non-defaulting party gives written notice thereof to the defaulting party, the non-defaulting party shall, except as otherwise provided in (b) below, have in addition to any other remedy provided by law, the right to have specific performance by the defaulting party of the defaulted covenant or condition. b. Landlord and Tenant stipulate and agree that under no circumstances or condition may Landlord terminate this Lease term or the Lease, retake possession of the premises during the Lease Term, or remove Tenant from possession of the Premises during the Lease Term except as is otherwise specifically provided for herein. 16. Non-Waiver. Failure of either Landlord of Tenant to declare any breach or default immediately upon occurrence thereof, or delay in taking any action in connection therewith, shall not waive such breach or default, but Landlord or Tenant, whichever is applicable, shall have the right to declare any such breach or default at any time and take such action as might be lawful or authorized hereunder. 17. Assignment or Sublease. Tenant may not assign this Lease or sublet all or any portion of the Premises without the prior written consent of the Landlord which consent shall not be unreasonably withheld. 18. Recording - Short Form Memorandum. Tenant and Landlord shall execute a short form memorandum of this Lease in recordable form which shall be placed of record. 19. Subordination to Mortgage. This Lease shall not be made subordinate to any mortgages or deeds of trust or other lien which may now hor hereafter encumber the Property including the Building and Premises, or to all renewals, modifications, consolidations, replacements and extensions thereof. 20. Notices. All notices and demands which may be or are required to be given by either party to the other hereunder shall be in writing and delivered in person or sent by United States Certified Mail, postage prepaid. Notices and demands to Tenant shall be addressed to it at the address indicated in page 1, or to such other place as the Tenant may from time to time designate in a written notice to the Landlord. Notices and demands to the Landlord shall be addressed to it at the address indicated in page 1, or to such other firm or to such other place as Landlord may from time to -6- time designate in a written notice to the Tenant. All notices shall be deemed given on the date of such delivery or mailing. 21. Attorneys fees. In the event of any litigation arising out of this Lease, the Court shall award to the prevailing party its costs and reasonable attorneys fees. Venue for any such action shall be Pueblo County, Colorado. 22. Successors and Assigns. This Lease shall be binding upon and inure to the benefit of the successors and assigns of Landlord and Tenant. 23. Miscellaneous. a. The pronouns of any gender shall include the other genders and either the singular or the plural shall include the other. b. Landlord and Tenant acknowledge and agree that they have not relied upon any statements, representations, agreements or warranties except such as are expressed herein. No amendment or modification of this Lease shall be valid or binding unless expressed in writing and executed by the parties hereto in the same manner as the execution of this Lease. c. If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws effective during the Term of this Lease, then, and in that event, it is the intention of the parties hereto that the remainder of this Lease shall not be affected thereby. d. This Lease is made in and shall be governed by and interpreted in accordance with the laws of the State of Colorado. 24. Amendment to Lease No. 1. That certain Lease Agreement dated March 25, 2002, by and between Landlord and Tenant hereto is hereby amended as follows: a. The commencement date of said Lease shall be November 1, 2003. b. Section 1, Demise, is amended to read in full as follows: Landlord leases to Tenant and Tenant leases from Landlord the premises upon the terms and provisions of this Lease. The parties stipulate and agree that the premises shall include 43,206 sq. ft. of space in the building shown on the building floor plans attached hereto as Exhibit B and shall also include an additional 14,000 sq. ft. of space in the building also owned by Landlord immediately adjacent to and south of the building shown on Exhibit B. -7- IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date aforesaid. LANDLORD: BESSEMER HISTORICAL SOCIETY ~ 'President TENANT: by: ~"~-~':~'/' President of the City Council A'I-I'EST: '~ecretary ATTEST: COUNTY OF PUEBLO STATE OF COLORADO ) ss. The foregoing instrument wasacknowledged before me this ~ ~_ day of 2003, byC~/~?~,,¢~? ,/Y',~-N ~,~ as President of Bessemer Historical Society, a Colorado nonprofit corporation. Witness my hand and official Seal. My commission expires: ~P/~/'~ ~; Notary Public -8- COUNTY OFPUEBLO ) STATE OF COLORADO ) ss. The foregoi ,r~ instrumenl~was acknowledged before me this/ifh day of 2003, by /'._'~'JL ~_~'-[/'z~ as President of the City Council of_.t~ City of Pueblo, a Municipal corporation. Witness my hand and official Seal. My commission expires: ~-~_l-~)"/ Notary Public -9-