HomeMy WebLinkAbout10928RESOLUTION NO. 10928
A RESOLUTION APPROVING A LEASE AGREEMENT BETWEEN THE CITY OF PUEBLO AND
GCC RIO GRANDE, INC. RELATING TO 31841 EXCELLENCE AVENUE, PUEBLO,
COLORADO, AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME,
AND AUTHORIZING THE TRANSFER OF $6,200.00 OUT OF THE 1992 TO 2011 SALES AND
USE TAX CAPITAL IMPROVEMENTS PROJECT FUND FOR COSTS ASSOCIATED
THEREWITH
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO. that:
SECTION 1.
The Lease Agreement between the City of Pueblo and GCC Rio Grande, Inc., relating to
31841 Excellence Avenue, Pueblo, Colorado, 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 County is
authorized to execute the Lease Agreement in the name of the City.
SECTION 2.
Funds in the amount of $6,200.00 are hereby authorized to be transferred from the 1992 to
2001 Sales And Use Tax Capital Projects Fund for payment of costs associated with the building
and lease thereof.
SECTION 3.
This Resolution shall become effective upon final approval and passage.
INTRODUCED February 12, 2007
BY Michael Occiato
Councilperson
APPROVED: Q Z & j p� el&xv
FFR ESIDLINTof City Council
ATTESTED BY:
CITY CLERK
RES. /0 9Z8
D � 0
�J E
Background Paper for Proposed
RESOLUTION
AGENDA ITEM # -2 —
DATE: February 12, 2007
DEPARTMENT: Law Department
TITLE
A RESOLUTION APPROVING A LEASE AGREEMENT BETWEEN THE CITY OF
PUEBLO AND GCC RIO GRANDE, INC. RELATING TO 31841 EXCELLENCE AVENUE,
PUEBLO, COLORADO, AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO
EXECUTE SAME, AND AUTHORIZING THE TRANSFER OF $6,200.00 OUT OF THE
1992 TO 2011 SALES AND USE TAX CAPITAL IMPROVEMENTS PROJECT FUND FOR
COSTS ASSOCIATED THEREWITH
ISSUE
Should City Council approve the Lease Agreement?
RECOMMENDATION
Pueblo Development Foundation recommends that the Lease Agreement be approved.
BACKGROUND
The City of Pueblo owns the approximately 26,400 square foot building located on Lot 40,
Pueblo Memorial Industrial Park (31841 Excellence Avenue) which was acquired through
the bankruptcy of Universal Boiler Works. Pueblo Development Foundation has negotiated
a lease of the building with GCC Rio Grande, Inc. (the cement company) for storage at a
monthly rent of $2,500 for a 6 month term with the right to renew for an additional 6
months. City may terminate the lease upon 30 days notice.
FINANCIAL IMPACT
$2,500 monthly rent when received will be returned to the one -half cent sales tax fund and
$6,200 will be transferred from the one -half cent sales tax fund for costs associated with
the building.
L- 003/06
&15 1 -ay
THIS LEASE entered into as of Jc'r 1r:'9 i s, 2,oe7 29*, by and between The City of
Pueblo, a Colorado Municipal Corporation (the "Lessor"), Pueblo Development Foundation, a
Colorado Non -Profit Corporation ( "Manager ") and OCC Rio Grande Inc., a New Mexico
Corporation (the "Lessee'), WITNESSETH:
WHEREAS, Lessor is the ownel of 3 � + Co consisting of a
building containing approximately 0 Q0 square feet (the "Building') located on 7 >/
approximately 4.7 / acres of land (the "Land ") (collectively the Land and Building are referred to
herein as the "Leased Premises"), and
WHEREAS, Lessee is desirous of leasing the Leased Premises from the Lessor upon the
terms and conditions hereinafter set forth;
WHEREAS, Lessor is desirous of leasing the Leased Premises to Lessee upon the terms and
conditions hereinafter set forth;
WHEREAS, Lessor is desirous of Manager to Manage the terms of this Lease;
NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions
contained herein, Lessor, Manager and Lessee hereby agree as follows:
Article 1. Leased Premises
1.01 Lessor hereby leases to Lessee and Lessee hereby leases from Lessor, subject to the
covenants, provisions and conditions herein, the Leased Premises.
1.02 This Lease and Lessee's use of the Leased Premises are subject to the easements,
rights -of -way, covenants, conditions, restrictions, reservations and limitations appearing of record,
and all applicable zoning and land use laws, ordinances, codes and regulations governing and
regulating the Leased Premises and its use.
Article 2. Toren
mrWrrhs JanWIVq Is,2AO9
The Term of this Lease shall be si_,% C�J year : commencing 00905MM (the
"Commencement Date") and ending s i x (Ln ) ywars unless sooner terminated as
provided herein (the `"termination Date'). Lessor shade granted the option to extend this lease of
a one (1) time period for a term of six (6) additional months from the Termination Date. Lessor"(
have the option to terminate this lease at any time by providing Lessee thirty (30) days notice to
Lessee. Said right shall apply at any time, including any extensions of said lease unless agreed to
otherwise in writing by Lessor and Lessee.
—1—
3.01 During the Term ofthis Lease and so long as Lessee is not in default underthis Lease
Lessee shall pay monthly rent of month in advance, withou,�60
notice or demand. TWO h� +r7Urml fX�ilo,rS ( #2,S UO�
3.02 All monthly rent and other payments required to be made by Lessee hereunder which
shall remain unpaid fifteen (15) days after their due dates shall bear interest at the rate of ten percent
(10 per annum until paid. All rent and other payments shall be made at ormailed by United States
mail to the following address: ! C. J it P /x�. A •t /_ C , or such other address as Lessor
may from time to time designate to Lessee in writing.
3.03 Lessee's obligation to pay rent to Lessor hereunder is absolute and unconditional and
rent shall not be offset, abated, reduced or withheld for any cause or reason whatsoever.
3.04 It is the intent of the parties hereto that this Lease be a "triple net" lease with Lessor
incurring no obligation, monetary or otherwise.
is-
4.01 The Leased Premises shall be used and occupied by Lessee exclusively for
commercial purposes associated with or incident to Lessee's business activities.
4.02 Lessee shall use the Leased Premises in a careful, safe and proper manner in
compliance with all laws and regulations applicable to the Leased Premises and Lessee's use thereof.
Lessee shall not cause, maintain or permit any nuisance or waste in, on, or about the Leased
Premises.
4.03 Lessee shall not abandon nor cease to conduct business on the Leased Premises for
any period longer than 180 consecutive days.
Article 5. Condition of Premises
5.01 EXCEPT AS SPECIFICALLY SET FORTH IN THIS LEASE, IT IS UNDER-
STOOD AND AGREED THAT LESSOR IS NOT MAKING AND HAS NOT AT ANY TIME
MADE ANY WARRANTY OR REPRESENTATION OF ANY KIND OR CHARACTER,
EXPRESS OR IIvE'LIED, WITH RESPECT TO THE LEASED PREMISES, INCLUDING, BUT
NOT LIMITED TO, ANY WARRANTY OR REPRESENTATION AS TO HABITABILITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER THAN
THE COVENANT OF QUIET POSSESSION SET FORTH IN ARTICLE 20), ZONING,
PHYSICAL OR ENVIRONMENTAL CONDITIONS, UTILITIES, GOVERNMENTAL
APPROVALS, THE COMPLIANCE OF THE LEASED PREMISES WITH GOVERNMENTAL
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LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF ANY DOCUMENT OR OTHER
INFORMATION PROVIDED TO LESSEE BY ANY OTHER PERSON, OR ANY OTHER
MATTER OR THING REGARDING THE LEASED PREMISES.
5.02 The taking ofposs=on ofthe Leased Premises by Lessee after Commmoement Date
shall be conclusive evidence that the Building has been completed and that Lessee accepts the
Leased Premises in its then present condition "As Is, Where Is, With All Faults" and that the Leased
Premises are in good and satisfactory condition at the time such possession was taken.
Article 6. Alterations and Improvements
6.01 Lessee shall not make any additions, alterations or improvements in orto the Leased
Premises ( "Alterations ") without Lessor's prior written consent. Lessee shall notpermit or allow any
lien to be filed or recorded against the Leased Premises or Lessor's interest therein, and Lessee shall
fully cooperate with Lessor in obtaining the protection afforded Lessor under Section 38 -22 -105,
C.R.S. All Alterations made in or to the Leased Premises by Lessee shall become part ofthe Leased
Premises and be surrendered with the Leased Premises at the termination of this Lease.
6.02 All equipment, fixtures and improvements of a detachable or temporary nature
installed or placed upon the Leased Premises by Lessee, including trade fixtures, shall remain the
property of Lessee, subject to Lessee's right, at its option, to remove same not latexthanten (10) days
after termination of this Lease. Lessee, at its expense, shall promptly repair any damage resulting
from such removal. The failure of Lessee to remove its equipment, fixtures and detachable
improvements within ten (10) days after termination of this Lease shall, at the option of Lessor, be
deemed an abandonment of such property and Lessor may dispose of such property as the Lessor, in
its sole discretion, may determine.
Article 7. Repairs and Maintenance
7.01 Lessor shall not be obligated to repair, maintain or alter the Leased Premises or any
part thereof. Lessee, at its expense, shall keep and maintain the Leased Premises, including, without
limitation, the Building, structural components, roofs, walls, fixtures, and electrical, heating,
mechanical, plumbing and air conditioning systems, and adjacent sidewalks and panting area, in
good condition and repair and in a good, clean and safe condition at all times during the effective
term of this Lease and return the same to Lessor at Termination Date in as good condition and state
of repair as the same were in as of Commencement Date, except for ordinary wear.
7.02 If Lessee becomes obligated to make repairs which ate or may be covered by any
manufacturer's or General Contractor's warranty issued to or for the benefit of Lessor, Lessor will
assign and transfer to Lessee its interest in any such warranty for the purpose ofmaking such repairs.
If any such warranty may not be legally assigned, Lessor, at the request and expense of Lessee, will
in good faith enforce such warranty on behalf of Lessee.
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7.03 If Lessee becomes obligated to make repairs caused by an occurrence covered by the
insurance described in Article 11, the net proceeds of such insuran shall be made available to
Lessee to offset the cost of such repairs.
Article 8. Right of
Lessor, or Lessor's officers, employees, agents and representatives, as the case may be, may
enter the Leased Premises during normal business hours upon prior written notice to Lessee, except
notice shall not be required in case of emergency, such as fire.
Lessee shall not voluntarily or by operation of law assign all or any part of the Lease or
Lessee's interest therein without the express written consent of Lessor, which consent will not be
unreasonably withheld. Lessor may withhold its consent if the proposed assignee's financial
standing and responsibility at the time of the proposed assignment is insufficient inthe Lessor's sole
discretion to give assurance of performance and compliance with all terms and conditions of this
Lease. Upon such an assignment and consent, Lessee shall be released from all obligations arising or
occurring under this Lease after the effective date of such assignment and consent, provided that
such assignee shall execute, acknowledge and deliver to Lessor an assumption agreement in form
and substances satisfactory to lessor, whereby assignee agrees to observe, perform and keep all the
terms, provisions, covenants and conditions required to be observed, performed and kept by Lessee
hereunder. Any assignment or attempted assignment of the Lease or any interest herein by Lessee
without Landlord's express written consent shall be null and void.
Article 10. Insmance and Indemnification.
10.01 Lessee shall indemnify and hold Lessor and Menages harmless from and defend
Lessor and Manager against any and all claims or liability, including cost of defense andreasonable
attorney fees, for any injury or damage to Lessee or its officers, agents or employees, or to Lessee's
properly, or to any third person, or to the property of any third person: (a) occurring in, on or about
the Leased Premises or any part thereof by or from any cause whatsoever except injury or damage
caused by the wrongful or intentional acts of Lessor, its officers or employees; or (b) arising outofor
resulting from the Leased Premises, or any condition thereon, or from Lessee's use and occupancy of
the Leased Premises, or any equipmem therein or appurtenances thereto, or any activity conducted
thereon.
10.02 Lessee shall secure and maintain in full force and effect, at its expense, during the
Term of this Lease, commercial liability insurance including personal injury, property damage and
contractual coverage in the minimum amount of $2,500,000 combined single limits naming Lessor
and Manager as an additional insured.
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10.03 Lessee shall secure and maintain during the Term of this Lease Colorado Workers'
Compensation insurance or other similar coverage in the statutorily mandated amounts.
10.04 A copy of each insurance policy, or certificate thereof, issued by an association or
company authorized to issue such policy or policies under the laws of the State of Colors&
containing aprovision prohibiting cancellation or material modification ofthe insurance except after
thirty (30) days' notice to lessor, shall be delivered to the Lessor within thirty (30) days atterdate of
this L ease, and thereafter the Lessee will furnish to Lessor evidence of the continuance of the
insurance coverage required herein within a reasonable time after the same has been issued
Article 12 Fire and Extended C veraee hisimince
11.01 Lessee shall, at its expense, during the Term ofthis Lease, secure and maintain in full
force and effect "All- Risk" casualty insurance (including, without limitation, fire, extended coverage
and boiler insurance) upon the Leased premises. Such insurance shall be in an amount not lass than
the full replacement value of the Building and improvements (without deduction for physical
depreciation), and issued by an insurance company or association authorized to issue such policies
under the laws of the State of Colorado and approved by Lessor, shall contain a deductible of not
more than $15,000.00 and a standard Colorado mortgagee clause in favor ofLessor, and shall not be
subject to cancellation, reduction or modification upon less than thirty (30) days' written notice to
Lessor. Such insurance, by its terns or by endorsement, shall waive any right of subrogation ofthe
insurer against Lessor, its officers, agents and employees, for any loss or damage resulting from
covered perils. Lessee will furnish to Lessor evidence of such insurance and its continuance during
the Term of this Lease.
11.02 Lessee shall, at its expense, segue and maintain fire and extended coverage insurance
on all fixducs, equipment and improvements installed by Lessee on the Leased Premises. Such
insurance, by its terms or by endorsement, shall waive any right of subrogation ofthe insurer against
Lessor, its officers, agents and employees, for any loss or damage resulting fiom covered perils.
Article 12. Taxes and Assessments
12.01 Lessee shall promptly pay and discharge as they become due and before delinquency
any and all property taxes, assessments, charges, liens, levies or excises, whether general or special
or ordinary or extraordinary, ofevery name, nature and kind whatsoever, including all govemmental
charges ofwhatsoever name, nature or kind, which may be levied, charged or imposed, or which may
become a lien or charge on or against the Leased Premises or any pad thereof, the leasehold interest
oflessee herein, or the improvements situated on the Leased Premises during the effective period of
this L ease. General property taxes shall be prorated for periods filling withinthe Tettnofthis Lease.
12.02 Lessee shall pay before delinquency any and all property taxes levied or charged
against any of the personal property belonging to it and situated on the Leased Premises or used in
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connection with the operation and maintenance of the Building on the Leased Premises.
12.03 Lessee shall have the right to contest or review, by legal proceedings at its own
expanse, and if necessary in the name of Lessor, or in such other manner as it may deem suitable, any
tax, assessment, levy or charge herein agreed to be paid by Lessee under this Article 12. Lessee may
defer payment of any such contested item if in connection with the proceeding instituted by Lessee
there shall have been obtained a stay of the collection of the item so contested. In the event of such
contest, Lessee shall give Lessor written notice prior to the commencement of any such contest
which shall be at least ten (10) days prior to delinquency of the item in contest and, on request of
Lessor, Lessee shall give to Lessor a good and sufficient surety bond indemnifying Lessor and the
Leased Premises against any such tax, assessment, levy or other charge and from any cost, liability or
damage arising out of such contest. In the event any notices of proposed increases in taxes,
assessments, levies or charges which are the obligation of Lessee are received by Lessor, it shall
promptly, but in no event later than 45 days after receipt thereof, forward the same to Lessee in order
that Lessee may proceed with payment or contest procedures within the periods provided for such
purposes.
12.04 All rebates or refunds on account ofanytax assessments, levy orcharge required to be
paid and paid by Lessee shall belong to Lessee, and Lessor will, on request of Lessee, execute any
documents which may be necessary in order to secure the recovery of any such rebates or refunds
and shall promptly pay over to Lessee any such rebates or refunds that may be received by Lessor
whether received before or after the end of this Lease.
12.05 Lessee shall famish Lessor within thirty (30) days after any amount is payable by
Lessee under this Article 13, official receipts of the appropriate taxing authority or lienholder or
other proof satisfactory to Lessor evidencing such payments as are required under this Article 12.
i ul _ o f q .
Lessee shall pay before delinquent City of Pueblo's combined service fee and all charges for
sewer, water, gas, electricity, telephone and all other utility services furnished to or used in or
supplied to the Leased Premises. Lessor shall not be obligated to famish or provide any utilities,
facilities or services of any kind.
Article 14. Damage to or Destruction of Premises
14.01 IC during the Term of this Lease, the Leased Premises shall be damaged to such an
extent that the repair of such damage and the restoration of the Leased Premises can be
accomplished, with reasonable diligence, within one hundred eighty (180) days after such damage,
Lessee shall promptly repair such damage and cause the Leased Premises to be restored to their
condition prior to the event causing the damage. if, during the Term of this Lease, the Leased
Premises shall be destroyed or damaged, or partially destroyed or damaged, without Lessee's fault to
such an extent that the repair of such destruction or damage and the restoration of the Leased
Premises cannot be accomplished, with reasonable diligence, within one hundred eighty (180) days
after destruction or damage, then Lessee shall promptly notify Lessor in writing of such fact within
forty -five (45) days after the date of such destruction or damage, and Lessee shall thereafter have the
right, during a period of thirty (30) days following such notification, to terminate this Lease by
written notice to the Lessor, declaring this Lease to be terminated provided, however, that, as a
condition precedent to such termination, all proceeds of insurance required to be maintained by
Lessee under Article 11.01 shall be paid to Lessor, or, if Lessee fails to maintain the insurance
required to be maintained by Lessee under Article 11.0 1, an amount equal to the insurance proceeds
which would have been available but for such failure shall be paid by Lessee to Lessor. Unless such
notice of immediate termination shall be given within such 30-day period, this Lease shall continue
in full force and effect and Lessee shall promptly repair such destruction or damage and cause the
Leased Premises to be restored to their condition prior to the event causing the destruction or
damage. In the event the Leased Premises are destroyed or damaged, or partially destroyed or
damaged without Lessee's fault, the monthly rent payable by Lessee shall be abated proportionately
according to the floor area of the Leased Premises which is useable by Lessee. Such abatement shall
continue for the period commencing with such damage or destruction and ending when Lessee
completes repair work or reconstruction, provided Lessee diligently commences and expeditiously
completes the repair work or reconstruction.
14.02 Lessee shall make the repairs, restoration or rebuilding as expeditiously as possible in
accordance with plans and specifications submitted to and approved in writing by Lessor and in
compliance with all applicable laws, regulations and codes.
Article 15. Eminent Domain
If the whole or substantial part of the Leased Premises shall be taken or condemned by any
competent authority for anypublic or quasi -public use or purpose under any statute or bythe rightof
em ment domain, or purchased under threat of such taking, then this Lease shall terminate on the date
when the condemning authority takes possession of the Leased Premises or the substantial part
thereof so taken. There shall be no apportionment of the award for taking or condemnation, the
entire award going to Lessor, provided Lessee shall have the right to recover any award which may
be made for damages to or condemnation of Lessee's movable trade fixtures, equipment, furniture
and finnishings or payments for relocation, if any.
Article 16. Holding Over
In the event that Lessee
shall, with the consent of Lessor, retain possession ofthe Leased Premises after the expiration ofthe
Term of this Lease, this Lease shall continue on a month -to -month basis at a rental equal to the fair
market monthly rental value of the Leased Premises and upon all other terms, covenants and
conditions herein specified
Article 17. Quiet Possession
—7—
Lessee shall, and may peacefully have, hold and enjoy the leased Premises, subject to the
other terms hereof, provided that Lessee pays the monthly rent herein recited and performs all of
Lessee's covenants and agreements contained herein.
Article 18. Default
18.01 In the event ofdefault at anytime by Lessee in the payment ofthe monthly rentherein
provided for, Lessor shall have the right, after three (3) days' notice inwritingto Lessee and Lessee's
failure within said three (3) day period to cure said default, or if said default does not relate to the
payment of money and cannot by its nature be cured within said three (3) day period, to undertake
and diligently pursue action to cure said default, to either:
(a) terminate this Lease and re -enter and take possession ofthe Leased Premises,
and/or
(b) pursue any remedy whatsoever provided by law; and/or
(c) re -enter and take possession ofthe Leased Premises and use its best efforts to
relet the same for and on account of Lessee for the then full remain portion ofthe unexpired Term
of this Lease or for any shorter period, and to collect and receive payment of rent therefor, but no
such re -entry or re-letting shall be construed as a termination of this Lease or as a release of Lessee
from Lessee's obligation to pay monthly rent provided for in this Lease, or from Lessee's obligation
to perform any other covenant herein contained. It expressly being understood and agreed that in the
event of any such re -entry or re- letting by Lessor such re-entry or re- letting shall not operate to
terminate this Lease or alter the obligation of Lessee to perform its covenants and to pay monthly
rent pursuant to the terms hereof unless Lessor expressly so elects pursuant to paragraph 20.01(a)
above. Lessor shall in no way be responsible or liable for any failure to re-let the Leased Premises,
or any part thereof, or for any failure to collect any rent due upon such re- letting. No notice from
lessor hereunder or under a forcible entry and detainer statute or similar law constitutes an election
by Lessor to terminate this Lease unless such notice specifically so states. Lessor reserves the right
following any such re-entry and/or rcletting to exercise its right to terminate this Lease; and/or
(d) cure the default on Lessee's behalfand at Lessee's expense, in which event, all
costs, expenses and reasonable attorney's fees incurred by lessor in curing the default together with
interest thereon at the rate of ten (10) percent per annum shall constitute additional rent payable to
Lessor by Lessee upon demand.
18.02 If Lessor does not elect to terminate this Lease but takes possession as provided for in
Article 1g.01(c), Lessee shall pay to Lessor the monthly rent and other charges at the times and in the
manner as herein provided which would be payable if such repossession had not occurred, less the
net proceeds, if any, of any rc4etting ofthe Leased Premises after deducting all Lessor's reasonable
expenses includ without limitation, all repossession costs, brokerage commissions, legal
—8—
expenses, attorneys' fees, alteration and repair costs and expenses of preparation for such re- letting.
18.03 In the event the parties hereto become involved in adispute arising out of this Lease,
or the performance or breach thereof, the Court shall award costs, expenses, and attorney fees to the
prep ling ley.
18.04 If Lessee violates any ofthe terms and provisions ofthis Lease or defaults in any ofits
obligations hereunder other than the payment ofmonthly rent or other sum payable hereunder, such
violation may be restrained or such obligation enforced by injunction at the instance and request of
Lessor without the showing of any special damages or an inadequate remedy at law.
Article 20. Waiver and Time of Essence
No waiver of any breach or breaches of any provision, covenant or condition of this Lease
SW be construed to be a waiver of any preceding or succeeding breach of such provision, covenant
or condition, or of any other provision, covenant or condition. Acceptance ofmonthlyrent or partial
monthly rent by Lessor shall not constitute a waiver of any then existing or subsequent breach or
default. Time is of the essence for each and every provision, covenant and condition herein
contained and on the part of Lessee to be done and performed.
Article 21. Assignment by Lessor
Lessor shall have the right to transfer and assign, in whole or in part, all its right and
obligations hereunder and in the Leased premises, and in such event and upon Lessor's transferee
assn ring Lessor's obligations hereunder no further liability or obligation shall thereafter accrue
against Lessor hereunder. Lessor shall give Lessee written notice ofits intent to make an assignment
or transfer of this Lease and a copy of the express ( written) assumption agreement between Lessor
and assignee or transferor.
Article 22. Subordination to MortgeM
This Lease shall be and is hereby made subordinate to any mortgage or deeds of trust of
Lessor which may now or hereafter encumber the Leased Premises and to all renewals,
modifications, consolidations, replacements and extensions thereof. This clause shall be self -
operative and no further instrument of subordination need be required by any mortgagee. This clause
shall be for the benefit of any mortgagee. In confirmation of such subordination, however, Lessee
shall, at Lessor's request, execute promptly any appropriate certificate, subordination agreement or
instrument that Lessor may request. Lessee hereby constitutes and appoints Lessor the Lessee's
attorney -in -fact to execute any such certificate, subordination agreement or instrument for and on
behalf of Lessee. Notwithstanding the fact that this Lease is and shall be subordinate as provided
above, Lessee will as a result of the enforcement of the default or foreclosure provisions of such
mortgage or deed of trust, including conveyance by deed in lieu of foreclosure, automatically become
the Lessee of the person or party succeeding to the interest of Lessor without change in the terms or
50
otherprovisions of this Lease and Lessee agrees to attorn to such party; provided, however, that such
mortgagee or successor in interest shall not (i) be bound by any amendment or modification to this
Lease made without the written consent of such mortgagee or such successor in interest; (u) be liable
for any previous act or omission by Lessor under this Lease; or (iii) be subject to any offset which
shall theretofore have accrued to Lessee against Lessor. Lessee further agrees, upon demand, to
execute such nondisturbance and attornment agreements as any such mortgagee or successor shall
-- go upon exaciss of 69 Gpdan
& T P- MMWE
At Lessor's request, Lessee will execute either an estoppel certificate addressed to Lessor's
mortgagee or any prospective successor of Lessor, or a third -party agreement among Lessor, Lessee
and said mortgagee or successor, certifying to such facts (if true) regarding the status acrd terms of
this Leese as may be requested, and agreeing to such notice provisions and other matters as such
mortgagee or successor may reasonably require in connection with Lessor's financing or the
conveyance of the Leased Premises.
Article 24. Notices
All notices, demands or communications of any kind which may be required or desired to be
served, given or made by Lessee upon or to Lessor, under the terms of or in connection with this
Lease, shall be sufficiently served, given or made (as an alternative to personal service upon Lessor)
if such ratite, demand or communication is sent by certified United States trail, addressed to:
CDfY o� �rC(�
n 1 C, l-fk(! P�ez y 1
(onto such other person or address as may h r m time to time be designatedlibrthisPurPow
by Lessor to Lessee in writing). All notices, demands or communications of any kind which may be
required or desired to be served, given or made by Lessor upon or to Lessee, under the terms oforin
connection with this Lease, shall be sufficiently served, given or made (as an alternative to personal
service upon Lessee) if such notice, demand or communication is sent by certified United States
Mail, addressed to: G CC Ad CTnAae -Tnr ,
3 1 8 clel �k rP�(H-CIC tg l e
0'4, 0(40AAQa d'(o0!
(or to such other person or address as may hereafter from time to time be designated for this purpose
by Lessee to Lessor in writing).
Article 25. Environmental Provisions
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25.01 For the purpose of this Leave, "Hazardous Materials" means any hazardous or toxic
substance, material or waste which is or become regulated by any local government auth(rity, the
State of Colorado or the United States government and shall include, but not be limited to (1)
substances defined as "hazardous waste," "restricted hazardous waste," "hazardous substance" or
"hazardous material" under any applicable federal, state or local law or regulation ("Environmental
Regulations "), (2) asbestos - containing materials, (3) PCBs, (4) petroleum or petroleum based
products, and (5) lead.
25.02 Lessee will comply with Environmental Regulations that are applicable to the Lessee
and its use of the Leased Premises. No activity shall be undertaken by the Lessee, its employees,
agents, licensees, invitees, contractors or subcontractors, on all or any portion ofthe Leased Premises
which would cause or permit: (i) the presence, use, generation, release, discharge, storage or
disposal of any Hazardous Material in, on, under, about, or from the Leased Premises or any part
thereof in violation of any Environmental Regulations; (ii) any portion of the Leased Premises to
become a hazardous waste treatment, storage or disposal facility without receiving proper
governmental authorization, and in compliance with all Environmental Regulations; or (iii) the
discharge of pollutants or effluents into any water source or system, or the discharge into the air of
any emissions without receiving proper governmental authorization, and in compliance with all
Environmental Regulations, including, without limitation, the Federal Water Pollution Control Act,
U.S.C. Section 1251 et sea. and the Clean Air Act, 42 U.S.C. Section 7401 et M.
25.03 Lessee agrees to defend, indemnify and forever hold harmless the Leaved Premises,
Lessor, and their respective agents, successors, and assigns, as their interest may appear, from all
claims, losses, damages, penalties, expenses and costs, including, but not limited to, attorneys' fees,
remedial, and cleanup costs, incurred by reason of the use, storage, generation, release, discharge,
maintenance, disposal, or removal of Hazardous Materials in, on, under, about, or from the Leased
Premises, or any part thereof; by Lessee, its employees, agents, licensees, invitees, contractors and
subcontractors. The provisions of Article 2+'shall expressly survive the expiration of the Term or
other termination of this Lease.
Article 26. Management Fee
Lessor shall pay to Manager a fee of Five Percent (5 %) of each monthly payments paid to
Lessor by Lessee. Said Management Fee is due on the first of each month and is not contingent of
Lessee being current on its renal obligations as described in this lease.
Article 27. Miscellaneous Provisions
27.01 Colorado Law This Lease shall be governed by the laws ofthe State ofColorado and
shall be construed in accordance therewith without reference to such State's choice of law ancllor
conflict of law principles.
27.02 Wddm for Waiver or Modification No provision of this Lease may be waived or
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modified except by an agreement in writing signed by the waiving party. A waiver of any term or
provision shall not be construed as a waiver of any other term or provision.
27.03 Na" Effect This Lease sets forth the entire and complete understanding and
agreement of the parties hereto. Lessee acknowledges and agrees that it has not relied upon any
statements, representations, agreements or warranties of Lessor except such as are expressed herein.
This Lease shall be binding on the parties, their successors and approved assigns.
27.04 Construction Throughout ibis Lease, the singular shall include the plural; the plural
shall include the singular; and the masculine and neuter shall include the feminine, wherever the
context so requires.
27.05 Text to Control The headings of sections are included solely for convenience of
reference. Ifany conflict between any heading and the text of this Lease exists, the text shall control.
27.06 Seyera¢iiily. If any provisions of this Lease is declared by any court of competent
jurisdiction to be invalid for any reason, such invalidity shall not effect the remaining provisions. On
the contrary, such re mainin g nin provisions shall be fully severable, and this Lease shall be construed
and enforced as if such invalid provisions had never been inserted in the Lease.
27.07 Venue and Jury Trial Lessor and Lessee agree that the venue for all actions or causes
ofaction relating to this Lease or the Leased Premises shall be in Pueblo County, Colorado. All such
actions shall be filed in the District Court, County of Pueblo, State of Colorado and Lessor and
Lessee submit to the jurisdiction of that Court To the extent allowed by law, each party waives its
right to a jury trial.
27.08 Lessee's Warranties The persons signing this Lease on behalf of Lessee represent
and warrant that such parties and Lessee have the requisite power and authority to enter into, execute
and deliver this Lease and that this Lease is a valid and legally binding obligation of Lessee
enforceable against Lessee in accordance with its terms.
27.09 Time of Essence Time shall be of the essence as to the performance of all terms,
conditions and obligations under this Lease.
27.10 Third Parties The provisions of this Lease are and will be for the benefit of Lessor
and Lessee only and not for the benefit of any third party, and accordingly, no third party shall have
any right or remedy hereunder or the right to enforce any provision of this Lease.
27.11 Dmkwa Commission Lessor and Lessee each represent to the otherdwtheybave
not entered into any agreement or incurred any obligation in connection with this Lease transaction
which might result in the obligation to pay a brokerage commission to any brother. Each party shall
indemnify and hold the other party harmless from and against any claim or demand by any broker or
other person for bringing about this Lease who claims to have dealt with such indemnifying party,
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including all expenses incurred in defending any such claim or demand (including reasonable
attorney's fees).
IN WITNESS WHEREOF, Lessor, Manager and Lessee, by their duly authorized
representatives, have executed this Lease on the day and year first above written.
City of Pueblo
By
Name: V 6
Title:president of the City Council
[SEAL]
Attest:
Name: G a Dutcher
City Clerk
GCC Rio
By —
Nam sercjio Sa Z
( Title:
[ SEAL
Pueblo Development Foundation
By _
Name me Spa i
Title: rdent
[SEAL]
Attest:
Title:
i TLE: — r(to.TeCT mANAC*t.4L
Attest:
Name:
STATE OF COLORADO
) SS.
COUNTY OF PUEBLO ) Febr(Ci v y
2007 The fore 'oh ' strulnent was acknowledged before me this y o
iSby as President City Counc Cf ityofz
IIT� —13—
y EGG
aonRav€o
°f �-1
TAq
my band and official seal.
commission expires: - 2�
W - 7 .
STATE OF )
COUNTY OF 1
Y
N Public
The foregoing instrument was acknowledged before me this 1 day of�� 2OW 2007
by a� W �� as Presi en t of Pueblo DevelopmentFoundatio(�
Witness my hand and official seal.
My commission expires: ao
[SEAL] ��
STATE OF COLORADO )
as.
COUNTY OF PUEBLO
The foregoing instrument was acknowledged before me this day of 2006 by
as President of GCC Rio Grande Inc.
Witness my hand and official seal.
My commission expires:
[SEAL]
Notary Public
— 14 — -�LQ N_d7r�
My Com scion Expires Oct. 18, 2009