HomeMy WebLinkAbout10555RESOLUTION NO. 10555
A RESOLUTION APPROVING A PARKING AGREEMENT BETWEEN THE CITY OF PUEBLO, A
MUNICIPAL CORPORATION AND PROFESSIONAL BULL RIDERS, INC. RELATING TO
PARKING AND EASEMENTS ASSOCIATED WITH THE PROPOSED 44,000 SQUARE FOOT
BUILDING TO BE CONSTRUCTED ON LOT 2, BLOCK 1, HISTORIC ARKANSAS RIVERWALK
PROJECT, FILING ONE, PUEBLO COUNTY, COLORADO
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1
The Parking Agreement dated as of November 14, 2005 between the City of Pueblo, a
municipal corporation and the Professional Bull Riders, Inc., relating to parking and easements
associated with the proposed 44,000 square foot building to be constructed on Lot 2, Block 1,
Historic Arkansas Riverwalk Project, Filing One, Pueblo County, 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 Parking Agreement in
the name of
INTRODUCED November 14, 2005
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BY Michael Occhiato
Councilperson
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D °
Background Paper for Proposed
RESOLUTION
AGENDA ITEM # o
DATE: November 14, 2005
DEPARTMENT: Law Department
TITLE
A RESOLUTION APPROVING A PARKING AGREEMENT BETWEEN THE CITY
OF PUEBLO, A MUNICIPAL CORPORATION AND PROFESSIONAL BULL
RIDERS, INC. RELATING TO PARKING AND EASEMENTS ASSOCIATED WITH
THE PROPOSED 44,000 SQUARE FOOT BUILDING TO BE CONSTRUCTED ON
LOT 2, BLOCK 1, HISTORIC ARKANSAS RIVERWALK PROJECT, FILING ONE,
PUEBLO COUNTY, COLORADO
ISSUE
Should City Council approve the Parking Agreement?
RECOMMENDATION
Approve the Parking Agreement.
BACKGROUND
Generally, the Parking Agreement requires the City to provide for thirty years
parking spaces in a number equal to the number of full -time employees employed
by Professional Bull Riders ( "PBR ") on the 2 n 3`' and 4` floors of the 44,000
square foot building ( "Building ") but not to exceed 180 parking spaces (108 in the
parking structure to be constructed adjacent to the Building and 72 in the parking
area adjacent to HARP across Victoria Street). The parking spaces will be rent -free
for 10 years, and for the next 20 years payment of monthly parking fee for each
space established by City Council for parking in City parking facilities located in the
downtown area will be required. Parking spaces will be mutually allocated by City
and PBR. Parking spaces for PBR's employees will be signed indicating "Reserved
for PBR during business hours, 8:00 a.m. to 6:00 p.m." on an as- needed basis
based on the number of PBR's employees. The parking spaces will be available
and used during normal workdays (Monday through Friday, from 8:00 a.m to 6:00
p.m.) and shall be available for public use at all other times. If City determines it
would be in the best interest of the City to sell the parking structure, PBR is granted
a right fo first refusal. City will be responsible to maintain and repair the parking
structure.
City will grant perpetual easements over Parcel A (public land surrounding the
Building) for ingress, egress, utilities, deliveries, construction, lateral and subjacent
support, storage and use of trash, grease and recycling dumpsters. Easementform
and location will be reasonably acceptable to City and PBR. City will grant licenses
within the public area immediately adjacent to Lot 2 nearest the HARP channel for
outdoor restaurant and food service seating and use for any restaurant or food
service establishment on the first floor of the Building.
The City has made $2 million available for construction of the parking structure on
land adjacent to the Building by PEDCO Foundation in accordance with plans and
specifications approved by the City. The parking structure will be designed by the
same architect who designed the Building and will be constructed by the same
contractor who constructs the Building.
The foregoing is a general outline of the provision of the Parking Agreement; for
more specific provisions and content, please review the Parking Agreement.
FINANCIAL IMPACT
See Background.
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PARKING AGREEMENT
THIS PARKING AGREEMENT ( "Agreement ") entered into as of
N01/011 b r, IX 2005 by and between the City of Pueblo, a municipal corporation, I
City Hall Place, Pueblo, Colorado, 81003 ( "City ") and Professional Bull Riders, Inc., a
Colorado corporation, 6 S. Tejon Street, Colorado Springs, Colorado, 80903
( "Permittee ").
WHEREAS, Permittee has entered into a lease for a ten (10) year term with
PEDCO Foundation Inc., a Colorado nonprofit corporation ( "PEDCO "), for Lot 2, Block
1, Historic Arkansas Riverwalk Project, Filing One, Pueblo, Colorado (the "Land "), and
the second, third and fourth floors of the approximately 44,000 square foot building to
be constructed thereon ( "Leased Premises ") ( "Lease "), and
WHEREAS, the Lease contains provisions with respect to the use of one hundred
eighty (180) parking spaces in parking facilities and areas owned by the City, and
WHEREAS, City and Permittee are desirous of entering into an agreement with
respect to such parking spaces, and
WHEREAS, the use of the parking spaces by Permittee will promote the public
welfare, enhance economic uevelopment, and create new employment opportunities
within the downtown area of the City.
NOW, THEREFORE, and in consideration of the foregoing and mutual covenants
contained herein, City and Permittee agree as follows:
1. Parking During Ten -Yea Lease Term. Provided Permittee is in compliance
with the Lease, Permittee shall be entitled during the I 0 -year lease term to use, except
during emergencies and reasonable periods for repairs and maintenance, rent -free parking
spaces in a number equal to the number of full -time employees employed by Permittee on
the Leased Premises ( "Employees ") but not to exceed one hundred eighty (1 80) parking
spaces. At least one hundred eight (108) parking spaces allocated to Permittee of the one
hundred eighty (1 80) provided to Permittee will be located in the parking structure to be
constructed adjacent to the Building ( "Parking Structure ") and the balance of 180 parking
spaces will be located in the parking area adjacent to HARP across Victoria Street
( "Parking Area "). If the Parking Structure when built and completed houses more than
168 spaces, the 108 spaces reserved for Permittee will be increased by the number of
spaces that exceed the 168 spaces estimated in the preliminary feasibility estimate. The
parking spaces shall be mutually allocated by City and Permittee on or before substantial
completion of the Leased Premises or upon design of the Parking Structure, whichever is
earlier. Signs indicating "Reserved for PEP. during business hours, 8:00 a.m. to 6:00
p.m." will be installed on an as- needed basis based on the number of Permittee's
Employees. The parking spaces shall be available and used during normal workdays
(Monday through Friday, from 8:00 a.m. to 6:00 p.m.) and shall be available for public
use at all other times, provided Lessee's Employees nay occupy the spaces if working in
the Leased Premises outside normal workdays and times at no additional charge. If non -
PER cars are parked during designated business hours in any such parking spaces described
hereunder, the City will enforce restricted parking and issue parking violation notices in the
same manner as City enforces restricted parking in other City owned parking facilities.
2. Parking After the Ten -Year Lease Term. If Permittee purchases the Leased
Premises as set forth in the Lease, the one hundred eighty (1 80) parking spaces as
provided and described in paragraph 1 above shall continue to be made available by the
City for use by Employees of Permittee or its successor entity in the Leased Premises
(second, third and fourth floors of the Building) for an additional period of twenty (20)
years from the expiration of the 10-year Lease term upon payment to the City of the
monthly parking permit fee for each parking space established by the City Council of
Pueblo, from time to time, which shall not be at a greater cost than at other City parking
facilities located in the downtown area of the City. The monthly parking permit fee for
each parking space shall be paid in advance, without notice, deduction or offset.
3. Relocation of Parking Area At the option of the City, the parking spaces
located in the Parking Area maybe relocated to another parking area or parking structure,
provided such parking area or parking structure is not located more than five hundred
(500) feet from the Leased Premises (subject to all other terns of this Agreement).
4. Right of First Refusal if City determines that it would be in the best interest
of the City to sell the Parking Structure, Permittee shall have the right of first refusal to
purchase the Parking Structure upon the same price, terms and conditions the City is
willing to sell to a bona fide third -party purchaser ("Third-Party Offer "). Permittee shall
exercise its right of first refusal by executing, within thirty (30) days after receipt of City's
written notice of the Third -Party Offer, an agreement to purchase the Parking Structure
upon the same price, terms and conditions of the Third -Party Offer. if Permittee does not
execute such agreement within said 30 -day period, Permittee's right of first refusal shall
terminate and expire with respect to that specific agreement and City shall be entitled to
sell the Parking Structure upon the same price, terms and conditions set forth in City's
notice of Third -Party Offer free of Permittee's right of first refusal. If the City does not sell
the Parking Structure at the same price and terms under the Third -Party Offer within 90
days after the expiration of the foregoing 30 -day period, or if the City receives any other,
different or subsequent offers or amendments to the Third -Party Offer, Permittee will be
given additional rights of refusal for each such new, additional or amended offer. For
avoidance of doubt, the right of first refusal is for each unique offer with new, different or
amended terms and the right of first refusal does not expire after the first offer. The term
"sell" does not include the City's sale, transfer or lease of the Parking Structure to the
Urban Renewal Authority of Pueblo, Colorado or any entity controlled by the City or in
conjunction with any City financing transaction including, but not limited to, lease with
option to purchase or certificates of participation, where the lot remains in City or public
ownership or use in connection with a financing transaction. Notwithstanding the
foregoing, any sale, lease or other transfer of the Parking Structure by the City shall be
subject to Permittee's right to use parking spaces in the Parking Structure as herein
provided. The subsequent owner, lessee or other acquirer of the Parking Structure shall
continue to be obligated to provide parking spaces in the Parking Structure upon the same
parking permit fee, terms, and conditions herein specified. The right of first refusal in favor
of Permittee will be set forth in real property records for Pueblo County, Colorado in form
reasonably acceptable to City and Permittee and also recorded in the City's records
available for public inspection and notice promptly after execution of this Agreement.
5. Uses of Parking Spaces Parking spaces shall be used only for the parking of
motor vehicles in compliance with City's applicable rules and regulations. Motor vehicles
shall only be parked within marked spaces and display a current parking permit issued by
the City. City shall maintain or repair the parkins spaces in conjunction with its
maintenance and repair of the Parking Structure and Parking Area, and for such purpose
City may obstruct or deny access to or use of the parking spaces during reasonable periods
for such maintenance and repairs. Except in emergencies, City will give written notice to
Permittee at least five (5) days prior to commencement of maintenance or repairs which
will interfere with Permittee's use of the parking spaces. Permittee shall not make any
repairs, alterations or improvements to or upon the parking spaces or Parking Structure.
b. Assignment During the 10 -year Lease term, Permittee shall not assign or
otherwise transfer this Agreement or any of Permittee's interest herein, or sublease the
parking spaces or any part thereof. Permittee's merger or consolidation with or into
another entity, or sale of all or substantially all of its assets to another entity of equivalent
or greater financial status shall not constitute an assignment hereunder, provided, however,
that such merged, consolidated or acquiring entity shall perform and comply with all
covenants and provisions of this Agreement and the Lease on the part of Permittee to be
performed and completed thereunder, including without limitation, Permittee's
Employment Commitment as defined in the Lease. After Permittee purchases the Leased
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Premises and during the 20 -year period after expiration of the Lease, Permittee may not
sublet parking spaces but may assign this Agreement, in whole or in part, with the prior
written approval of City, which approval shall not be unreasonably withheld, but no
approval is required in the case in which Permittee is acquired and the successor entity
assumes the obligations of this Agreement. No suet} approval shall release or discharge
Permittee from its obligations under this Agreement unless otherwise agreed by City. Any
such assignment, transfer or sublease without prior written approval of City shall be void
and ineffective as to the City and shall constitute grounds to terminate this Agreement.
7. Sim. Permittee shall not place, install, affix or use any sign, advertising, or
identifying media on or within the parking spaces, Parking Area, or Parking Structure.
8. Default by Permittee Time is of the essence hereof. If Permittee defaults in
the payment of parking permit fees or fails to perform or observe any of the conditions
and covenants on its part to be performed or observed hereunder, and such default or
failure shall continue for a period of sixty (60) days after written notice thereof is given by
City to Permittee, then and in that event, City, in addition to other remedies available at
law or in equity, may terminate this Agreement and forthwith repossess the parking spaces.
Failure or delay by City in taking any action in connection with a default or failure of
Permittee, or accepting partial or full payment of parking permit fees with knowledge or
such default or failure, shall not waive such default or failure, and City shall have the right
at any time to take such action as may be lawful or authorized hereunder.
9. Default by City In addition to other remedies available at law or in equity,
in the event City defaults in providing the parking spaces as set forth in this Agreement,
and Permittee obtains other parking spaces at higher parking permit fees or charges, City
will pay to Permittee the difference between the parking permit fees specified herein and
the higher parking permit fees or charges required to be paid by Permittee for such other
parking spaces.
10. Attorney Fees In the event of any litigation arising out of this Agreement,
the Court shall award to the prevailing party its costs and expense of litigation including
reasonable attorney fees. Venue for such litigation shall be Pueblo County, Colorado.
11. Termination This Agreement with respect to the 108 parking spaces (or
more if applicable) in the Parking Structure shall terminate if the Parking Structure is
destroyed or materially damaged by fire or other casualty or by defects in its construction
and the City, in the exercise of its reasonable judgment, determines not to rebuild or
repair the Parking Facility. The City will provide replacement parking for the number of
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spaces lost in the Parking Structure within, 500 feet of the Parking Structure (subject to all
other terms of this Agreement).
12. _N otices . Any notice required, or permitted, under this agreement, shall be
in writing and shall be effective upon personal delivery, or three (3) days after mailing by
certified mail, postage prepaid, if to the City: City Manager, City of Pueblo, 1 City Hall
Place, Pueblo, Colorado, 81003, or if to the Permittee: 6 South Tejon Street, Colorado
Springs, Colorado, 80903; or to such other address as either party may specify in writing
given to the other party as herein provided.
13. City's Financial Obligations Any provision of this Agreement which
imposes upon City any financial obligation payable after the current fiscal year is expressly
contingent upon funds for such financial obligation being budgeted, appropriated, and
otherwise made available. Notwithstanding the foregoing, the City represents and warrants
that it has fully budgeted, appropriated, and otherwise made available $2,000,000 for
the construction of the Parking Structure and $5,000,000 for the construction of the
building containing the Leased Premises in order for it and PEDCO to fulfill their
obligations under this Agreement and the Lease.
14. Governmental immunity The City does not by entering into this
Agreement nor by any provision hereof waive or intend to waive any rights, immunities,
conditions or protection under the Colorado Governmental Act, C.R.S. §24 -10 -101, et
seq., or otherwise available or provided under any other law to the City and its officers
and employees.
15. Miscellaneous
(a) Time is of the essence hereof. This Agreement shall be binding upon
and inure to the benefit of Permittee and City and, subject to the limitations of Paragraph
6 hereof, their respective successors and approved assigns.
(b) This Agreement shall be governed by and interpreted in accordance
with the law of the State of Colorado without regard to conflict of law principles.
(c) This Agreement expresses the entire understanding of the parties and
supersedes any and all prior dealings and commitments with respect to the subject matter
of this Agreement and may not be altered, changed, or amended except by an instrument
in writing signed by Permittee and City.
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(d) If any provision of this Agreement is declared by a court of
competent jurisdiction to be invalid or unenforceable, such determination shall not affect
the other provisions of this Agreement which shall remain in full force and effect.
(e) Should meters ever be added to the Parking Facility or Parking Area,
the metered rate will not apply to Permittee either during the initial 10 -year lease term or
the 20 -year additional period described herein.
(f) Subject to Sections 5 and 1 1 hereof, City shall be solely responsible
at its cost for reasonable maintenance, repair, and replacement of the Parlcing Facility and
Parkin; Area to keep in good working order and condition.
(g) The City and Permittee shall not unreasonably withhold, delay, or
condition their consent or approval under this Agreement or under the Lease (if such
consent or approval is required).
(h) The article and section headings used herein are for reference and
convenience only, and shall not enter into the interpretation hereof. No restriction,
condition, obligation or provision contained in this Agreement shall be deemed to have
been waived or abrogated by reason of any failure to enforce same irrespective of the
number of violations or breaches thereof that may occur. All remedies are cumulative.
(1) Within sixty days from when the Architect Plans and Construction
Documents (as each is defined in the Lease) are prepared, the City shall grant to
Permittee and the Land and tenants, visitors, licensees, owners, and users thereof, as
applicable, in form and specific location reasonably acceptable to Permittee and City, a
perpetual appurtenant easement (which is not junior to any lien) and which shall survive
the termination of this Agreement for: (i) non - exclusive ingress and egress to the Land
and any improvements thereon (from at least both levels of the Parking Structure),
including but not limited to from at least the top level of the Parking Structure (and also
from the lower level as reasonably determined by the parties once the Architect Plans
and Construction Documents are completed) for deliveries of any kind (such as food or
furniture) and removal of trash and other waste, (ii) non - exclusive provision of any
utilities and other services to the Land and any improvements thereon, (iii) temporary
construction and maintenance to the Land and any improvements thereon, (iv) lateral
and subjacent support for the Land and any improvements thereon (and any common
wall agreements), (v) storage and use of trash, grease, and recycling dumpsters, and
(vi) the overhang of any building on the Land over the Parking Structure as described in
the Lease (which shall also provide the Parking Structure shall not exceed two (2) floors
or have a cover that blocks views from the second floor of the building unless otherwise
agreed by Permittee), in that portion of Parcel A, Block 1, Historic Arkansas Riverwalk
M
Project, Filing One, County of Pueblo, Colorado which is northwest of Union Avenue,
Southwest of Victoria Avenue, and northeast of the HARP channel (the "Subject Area ").
If the Parking Structure or the building on the Land is damaged or destroyed and is not
reconstructed in similar form to the original constructed configurations, the easement
shall provide that the parties will modify or move the physical location of such easement
if necessary to accommodate the needs of the parties (provided that Permittee is not
unreasonably adversely harmed) based upon what ultimately ends up being
reconstructed for the Parking Structure or the building on the Land. The City shall grant
licenses to Permittee and its tenants for outdoor restaurant and food service seating
within only that portion of the Subject Area immediately adjacent to the Land nearest
the HARP channel which does not impair pedestrian access along the HARP channel
(as reasonably determined by City and Permittee) (the "Outdoor Restaurant Area ") for
any restaurant or food service establishment at the Land upon terms (including
financial) no worse than for other restaurant or food service establishments within the
HARP -1 zone district (as such terms are reasonably adjusted to reflect size which may
differ between the outdoor seating area of each), and the City shall not allow any other
licenses within such Outdoor Restaurant Area without Permittee's consent (not
unreasonably withheld, delayed, or conditioned (it shall be reasonable to withhold
consent, among other items, if the use would compete with any uses within the first
floor of the building on the Land)). Such easement shall be prepared, executed, and
recorded in the real property records of Pueblo County in the time period provided in
this paragraph.
Executed in Pueblo, Colorado the day and years first above written.
PUEBLO
ATTEST:
City Oerk
CITY OF PUEBLO, A MUNICIPAL
CO ORATION
By:
Pre ident of the Ci ouncil
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Title: Gt rPC��7 cer'
-45247 s.noc