HomeMy WebLinkAbout11803RESOLUTION NO. 11803
A RESOLUTION APPROVING A LEASE BETWEEN PUEBLO, A
MUNICIPAL CORPORATION, AND PUEBLO MUNICIPAL
SHOOTERS, INC. RELATING TO THE BUILDING LOCATED AT
3455% NUCKOLLS AVENUE, PUEBLO, COLORADO
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that
SECTION 1
The Lease dated as of January 25, 2010, between Pueblo, a Municipal Corporation, as
Landlord and Pueblo Municipal Shooters, Inc. as Tenant, a copy of which is attached hereto,
having been approved as to form by the City Attorney, is hereby approved.
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The President of the City Council is authorized to execute and deliver the Lease in the
name of the City of Pueblo, and the City Clerk is directed to affix the seal of the City hereto and
attest same.
INTRODUCED: February 8, 2010
BY: Judy Weaver
COUNCILPERSON
APPROVED:
RESIDENT CF CITY CC) UNCIL
ATTESTED BY:
GIB' Y CLERK
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Background Paper for Proposed
RESOLUTION
AGENDA ITEM # M -4
DATE: February 8, 2010
DEPARTMENT: OFFICE OF THE CITY MANAGER
JERRY M. PACHECO, CITY MANAGER
JENNY M. EICKELMAN, ASSISTANT CITY MANAGER
TITLE
A RESOLUTION APPROVING A LEASE BETWEEN PUEBLO, A MUNICIPAL
CORPORATION, AND PUEBLO MUNICIPAL SHOOTERS, INC. RELATING TO THE
BUILDING LOCATED AT 3455'/2 NUCKOLLS AVENUE, PUEBLO, COLORADO
ISSUE
Should the City Council approve a 20 -year lease of the property located at 3455'/2 Nuckolls
Avenue upon which the Pueblo Municipal Shooters, Inc. building is located?
RECOMMENDATION
Pueblo Municipal Shooters, Inc. has requested this lease be presented to City Council. Staff has
no objection to the new lease.
BACKGROUND
A lease agreement between the City of Pueblo and Pueblo Municipal Shooters, Inc. (PMS, Inc.)
for the land currently occupied by PMS, Inc. within City Park dates back to 1957. The current
five -year lease extension, approved by the City Council on November 12, 2007, expires on
November 30, 2012.
In 1957, PMS, Inc. constructed a ten lane, 50' indoor public shooting range facility on the City's
property, and the shooting range, with all of its improvements, serves as a regional hub for safety
training, firearm certification, and practice. Under the existing lease, members of the Pueblo
Police Department are entitled to use the range for weapons qualifications and certifications.
Pueblo Municipal Shooters recently approached the City with a request to enter into a new lease
agreement for a period of 20 years to enable PMS, Inc. to secure the grant funding they need in
order to make additional improvements to the facility, such as insulation, soundproofing, noise
abatement, and window replacement, and to encourage member participation. PMS, Inc.
believes a longer lease is necessary in order to be considered by the Colorado Division of
Wildlife and other granting agencies for funding purposes.
Concerns have been raised regarding parking and noise issues at the facility with respect to the
neighboring Pueblo Zoo. City staff recently met with board members and staff of the Pueblo
Zoo and PMS, Inc. to determine the validity and extent to which these concerns are a problem.
At that time, Pueblo Zoo indicated Pueblo Municipal Shooters, Inc. has been a good neighbor to
the Zoo, despite a number of negative comments from Zoo customers over the years regarding
the sounds of gunfire in such close proximity to the peaceful and tranquil environment of the
Pueblo Zoo. Parking Lot congestion does not appear to be the result of only PMS, Inc. users, but
rather several activities occurring simultaneously, such as kidddie rides, picnics, ball games,
tennis tournaments, Zoo activities, and shooting range events. The Pueblo Zoo does not oppose
a longer lease extension with PMS, Inc.; however, they have expressed a desire for PMS, Inc. to
seek relocation to another location at some time in the future to accommodate the Zoo's desire to
expand.
FINANCIAL IMPACT
This Resolution provides a termination for convenience of landlord clause that enables the City,
after the expiration of the first ten years of the term of the lease, to terminate the lease upon 180
days prior written notice. Upon exercising this right, the City would be obligated to pay the
tenant the fair market value of the building as determined by an appraisal. Fair market value
would not include any value attributable to tenant's leasehold interest or value of the land upon
which the building is located.
LEASE
THIS LEASE entered into as of January 25, 2010, between Pueblo, a Municipal Corporation,
1 City Hall Place, Pueblo, Colorado, 81003 (herein "Landlord ") and Pueblo Municipal Shooters, Inc.,
a Colorado nonprofit corporation (herein "Tenant ").
I. Premises Tenant has constructed a building on land owned by Landlord for the
purposes of providing a facility for an indoor public shooting range (the `Building "). Landlord leases
to Tenant and Tenant leases from Landlord subject to and upon the terms and provisions of this
Lease, the land upon which the Building is located known as 3455 Nuckolls Avenue, Pueblo,
Colorado, 81005 (the "Land ") (the Land and Building are collectively referred to herein as the
"Premises ").
Tenant stipulates and agrees that Landlord shall not be responsible for any defect in or
condition of the Premises or obligated to make any repairs, alterations, or improvements or additions
thereto. Tenant accepts the Premises "AS IS, WHERE IS, WITH ALL ITS FAULTS" and agrees
that the Premises are in good and satisfactory condition.
2. Use. The Premises are to be continuously used and occupied by Tenant solely as an
indoor public shooting range for members of Tenant and residents of the City of Pueblo, Pueblo
County, and surrounding areas. Members of the Pueblo Police Department shall be entitled to use the
shooting range at no cost for weapons qualifications and certifications. Tenant shall maintain and use
the Premises in a careful, safe and proper manner in compliance with all applicable laws, ordinances
and regulations including, without limitation, environmental laws and regulations. Tenant shall not
use or allow the Premises to be used for any improper, unlawful, immoral or objectionable purpose.
Tenant shall not cause, maintain, or permit any nuisance or waste in, on, or about the Premises.
Tenant shall not discriminate against any person based upon race, color, national origin, religion, sex,
age or disability.
3. Rent. Tenant agrees to pay to Landlord rent for the Land for the full original term of
$10.00 payable upon execution hereof. All other sums and charges required to be paid to Landlord
by Tenant under this Lease shall be deemed to be rent and shall be payable upon demand, and
Landlord shall have all rights specified in this Lease against Tenant for default in payment thereof as
in the case of arrears of rent.
4. Term The term of this Lease shall be twenty (20) years commencing on February 1,
2010, and ending January 31, 2030, both dates inclusive, unless sooner terminated as herein provided.
5. Taxes Tenant shall pay, before delinquency, any and all real property, personal
property, sales and use, income and withholding taxes, assessments, license fees, and other charges
imposed, levied or assessed against the Premises, or Tenant's operations, occupancy or conduct of
business upon or from the Premises, or upon Tenant's equipment, furniture, fixtures, and other
personal property located in the Premises.
6. Utilities Tenant shall promptly pay the cost of any utility service which is used or
consumed in the Premises whether or not such utility is separately metered. Landlord shall not be
obligated to furnish or provide to Tenant any facilities or services of any kind.
7. Repairs Tenant shall, at its expense, keep and maintain the exterior and interior ofthe
Building, including without limitation, roof, walls, floors, sewer and water lines and connections,
plumbing, heating and air conditioning equipment and systems, in good condition and repair and in
compliance with all applicable laws, regulations and codes. Tenant shall keep and maintain all
sidewalks and areas adjacent to the Building in good condition and repair and in a clean and safe
condition free of snow, ice, and debris. Landlord shall not be responsible to maintain or to make any
improvements or repairs of any kind in or upon the Premises, Building, adjacent parking area, or
sidewalks.
8. Quiet Enjoyment 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.
9. Alterations Tenant shall not make any additions, alterations or improvements in or to
the Premises ( "Alterations ") without Landlord's written consent. Tenant shall not permit or allow any
lien to be filed or recorded against the Premises or Landlord's interest therein. All Alterations made in
or to the Premises shall become part of the Premises. Tenant shall have the right to remove or
replace its removable trade fixtures, provided Tenant repairs any damage caused by such removal.
The failure of Tenant to remove its removable fixtures or any of its property at the termination or
expiration of the term of this Lease shall be deemed abandonment of such property and Landlord may
dispose of such property in such manner as Landlord shall determine in its sole discretion.
10. Rieht of Entry Landlord reserves and shall have the right to enter the Premises to
inspect the same upon reasonable notice to Tenant. Landlord shall have the right to use any and all
means which Landlord may deem necessary or proper to enter upon the Premises in an emergency.
Any entry to the Premises shall not under any circumstances be construed or deemed to be a forcible
or unlawful entry into, or a detainer of, the Premises, or an eviction, of Tenant.
11. Hold Harmless and Indemnification Landlord shall not be liable to Tenant or to
Tenant's agents, employees, customers or invitees, and Tenant hereby waives all claims against
Landlord, for any injury or damage, including personal injury, to any person or property in or about
the Premises by or from any cause whatsoever, including, without limitation, the following: (a) those
caused by snow, ice or water or sewer leakage or back -up of any character from the Premises; (b)
those caused by gas, fire, oil, electricity or any cause whatsoever in, on or about the Premises; or (c)
those caused by the acts or omissions of Tenant, its officers, members, agents, employees or invitees.
Tenant shall indemnity, defend and hold Landlord harmless from and against any and all
claims, demands, damages, injuries, penalties, and characterization and remediation costs and
expenses, including legal fees and expenses of expert witnesses: (a) arising out of any occurrence in,
on, or about the Premises or any part thereof or adjacent sidewalk notwithstanding the cause of such
injury or damage, (b) arising out of or resulting from this Lease or any prior lease of the Premises by
Tenant, or from Tenant's use and occupancy of the Premises or any equipment therein or
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appurtenances thereto, or (c) arising out of or resulting from Tenant's violation of any law, ordinance,
or regulation, including environmental laws or regulations. This indemnification shall survive the
termination or expiration of the term of this Lease, and any extension thereof, for the benefit of
Landlord, its successors, and assigns.
12. Liability Insurance Tenant shall, at Tenant's expense, maintain during the term ofthis
Lease a policy or policies of commercial general liability insurance, including contractual coverage,
with the premiums thereon fully paid on or before due date, issued by and binding upon an insurance
company authorized to do business in Colorado, such insurance to afford minimum coverage of not
less than the amounts set forth in section 24 -10 -114, C.R.S. or as same may be subsequently
amended. Any such policy shall name the Landlord as an additional insured and waive all rights of
subrogation against Landlord. Tenant shall at Landlord's request furnish Landlord with copies or
certificates of all insurance to be maintained by Tenant and with evidence of payment ofthe premiums
thereon. All such policies shall contain a clause or endorsement to the effect that they may not be
cancelled, terminated or materially amended except after 10 days' written notice thereof to Landlord.
13. Casualty Insurance Tenant shall maintain fire and extended coverage insurance on the
Building. Said insurance shall be maintained with an insurance company authorized to do business in
Colorado, in amounts equal to the full replacement value of the Building and at the expense of
Tenant, and payments for losses thereunder shall be made jointly to Landlord and Tenant. Tenant
shall also maintain at its expense fire and extended coverage insurance on all of its personal property,
including removable trade fixtures, located in the Premises.
Whenever (i) any loss, cost, damage or expense resulting from any peril described in this
paragraph 13 is incurred by any party to this Lease in connection with the 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 and waives any right of subrogation which might otherwise exist in or accrue to any person
on account thereof. If 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, Tenant shall be deemed to have been
fully insured and to have recovered the entire amount of its loss.
14. Casualty In the event the Building is damaged or destroyed by fire or other casualty,
Tenant shall immediately give notice thereof to Landlord, and immediately repair and restore the
Building to its condition existing prior to such damage. For such purpose, Landlord shall release to
and Tenant shall use the net proceeds of the casualty insurance maintained by Tenant pursuant to
section 13 hereof for such repair and restoration. In the alternative, Landlord and Tenant may
mutually agree that the Building will not be repaired or replaced, in which event Tenant shall remove
the Building and all debris from the Land and restore the Land to its original condition. Upon such
removal and restoration, all casualty insurance proceeds shall be released and paid to Tenant, this
Lease shall terminate, and Landlord and Tenant shall be released from all future obligations under this
Lease except those set forth in section 11 hereof which shall survive such termination.
15. Breach of Lease If default shall be made in the payment of any sum to be paid by
Tenant under this Lease, and such default shall continue for 10 days, or default shall be made in the
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performance of any of the other covenants or conditions which Tenant is required to observe and to
perform, and such default shall continue for 30 days, or if this Lease shall, by act of Tenant or by
operation of law or otherwise, pass to any party other than Tenant, except with the prior written
consent of Landlord, or if Tenant be declared insolvent according to law, or if any assignment of
Tenant's property shall be made for the benefit of creditors, or if a receiver or trustee is appointed for
Tenant or Tenant's property, or if Tenant shall abandon or vacate the Premises, then Landlord may
treat the occurrence of any one or more of the foregoing events as a breach of this Lease. The
Premises shall be deemed to be abandoned if not used for a period of six (6) months or longer.
16. Remedies Upon Breach In the event of a breach of this Lease by Tenant, Landlord, in
addition to all other rights and remedies provided at law or in equity, may terminate this Lease.
17. Termination for Convenience of Landlord At any time after the expiration ofthe first
ten (10) years of the Term of this Lease, Landlord may, in Landlord's sole and absolute discretion,
terminate this Lease upon 180 days prior written notice to Tenant. On the effective date of such
termination, Landlord shall pay to Tenant the fair market value of the Building as determined by an
appraisal performed by a qualified appraiser selected by City who meets the requirements for a
certified general appraiser or licensed appraiser established under Part 7 of Article 61, Title 12,
C.R.S. (2009) or of any subsequent state law concerning the qualification of real estate appraisers.
In preparing the appraisal, the appraiser shall not include in his calculation of fair market value any
value attributable to Tenant's leasehold interest under this Lease or the value of the land upon which
the Building is located. Nothing in this Section shall be construed to constitute a waiver, limitation,
or condition upon Landlord's exercise of its power of eminent domain.
18. Building Upon termination of this Lease or expiration of its term without renewal or
extension, Tenant shall have one hundred eighty (180) days thereafter to sell or dispose of the
Building to a successor Tenant acceptable to Landlord. If Tenant shall fail to sell or dispose of the
Building as above provided within said 180 -day period, the Building shall, at the sole option of
Landlord, either become the sole property of Landlord, or be removed from the Land and the Land
restored to its original condition at the sole cost and expense of Tenant. This Section does not apply
to termination for convenience of Landlord under Section 17 of this Lease.
19. Non - Waiver Failure of Landlord to declare any breach or default immediately upon
occurrence thereof, or delay in taking any action in connection therewith, or accepting partial or full
payment of rent with knowledge of such breach or default, shall not waive such breach or default, but
Landlord 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, either at law or in equity.
20. Assignment or Sublease Neither this Lease nor any part of the Premises shall be
assigned or sublet by Tenant without the prior written consent of Landlord, which consent shall not
be unreasonably withheld and, notwithstanding the consent of Landlord to any such assignment or
subletting, the Tenant shall not be released of its obligation to pay the rent and to perform all other
obligations to be performed by Tenant hereunder for the term of this Lease.
21. Signs Tenant shall not, without Landlord's prior written consent, install, affix or use
any signs or other advertising or identifying media on the exterior of the Premises, or which is visible
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from the exterior of the Premises or the Building.
22. Recording Neither this Lease nor any memorandum thereof shall be recorded in the
office of the Pueblo County Clerk and Recorder. If this Lease or any memorandum thereof is so
recorder, this Lease shall immediately terminate upon such recording.
23. 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
Premises, 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, Attention: City Manager, or to such other person or place as Landlord may from time to
time designate in a written notice to the Tenant. All notices shall be deemed given on the date of such
delivery or mailing.
24. Attorney's Fees In the event Tenant makes default in the performance of any of the
terms, covenants, agreements or conditions contained in this Lease and Landlord places the
enforcement of this Lease, or any part thereof, or the collection of any rent due, or to become due
hereunder, or recovery of the possession of the Premises in the hands of an attomey, or files suit upon
the same, Tenant agrees to pay Landlord a reasonable attorney's fee incurred by Landlord. Venue for
any action under this Lease shall be Pueblo County, Colorado.
25. Successors and Assigns This Lease shall be binding upon and inure to the benefit of
the successors and assigns of Landlord, and shall be binding upon and inure to the benefit of Tenant
and Tenant's successors and assigns to the extent assignment may be approved by Landlord
hereunder.
26. Access and Parking Tenant shall access the Premises from City's adjacent parking lot
over the existing sidewalk or such other access as the Director of Parks and Recreation ( "Director ")
shall designate. Tenant, its members and invitees shall not park vehicles along Nuckolls Avenue but
may park in the City's adjacent parking lot subject to such rules and regulations as the Director shall
establish.
27. Miscellaneous
(a) The pronouns of any gender shall include the other genders, and either the
singular or the plural shall include the other.
(b) The rights and remedies of Landlord hereunder, and any other rights and
remedies provided by law, shall be construed as cumulative and no one of them is exclusive of any
other right or remedy. Such rights and remedies shall further be continuing rights, none ofwhich shall
be exhausted by being exercised on one or more occasions. Landlord shall be entitled to an injunction
or the appointment of a receiver for Tenant in proper cases upon ex parte application therefor to
enforce any part or parts of this Lease or to prevent or stop any violation, breach or default on the
part of Tenant.
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(c) Whenever in this Lease Landlord reserves or is given the right and power to
give or withhold its consent to any action on the part of Tenant, such right and power shall not be
exhausted by its exercise on one or more occasions, but shall be a continuing right and power for the
full term of this Lease.
(d) This Lease sets forth the entire understanding of the parties and supersedes all
prior written and verbal statements and agreements, including the Lease between the Parties dated
December 1, 2002, and all Lease Extension Agreements relating thereto. Tenant acknowledges and
agrees that it has 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.
(e) 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.
(f) This Lease is made in and shall be governed by and interpreted in accordance
with the laws of the State of Colorado.
(g) This Lease may not be altered, changed, or amended, except by an instrument
in writing, signed by both parties hereto.
(h) No third party shall have any right or remedy under this Lease. All rights and
remedies under this Lease are strictly reserved to Landlord and Tenant.
(i) No term, provision or condition of this Lease shall be construed or interpreted
as a waiver, express or implied, by Landlord, of immunities, rights, benefits, protections granted to it
under the Colorado Governmental Immunity Act or any other law, common or statutory, granting
immunity and protection of the Landlord.
0) Financial obligations of the Landlord, if any, under this Lease and contingent
upon and subject to funds for that purpose being appropriated, budgeted, and otherwise made
available.
(k) This Lease may be executed in two or more counterparts, each of which shall
be deemed an original and all of which together constitute one and the same instrument.
(1) Each person signing this Lease on behalf of Tenant represents and warrants
that he or she has the requisite power and authority to enter into, execute, and deliver this Lease on
behalf of Tenant and that this Lease is a valid and legally binding obligation of Tenant enforceable
against it according to its terms.
M
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date
aforesaid.
LANDLORD:
PUEBLO, A MUNICIP CORPORATION
By o till' (✓ i2.�
President of the City Council
Attest:
City lerk
COUNTY OF PUEBLO
STATE OF COLORADO
SS.
TENANT:
PUEB[;O MUNICIPAL SHOOTERS, INC.
By
President
Attest: �
cretary
The foregoing instrument was acknowledged before me this _� day of January, 2010,
by Lawrence W. Atencio , 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:
- '[S E A L]
COUNTY OF PUEBLO
STATE OF COLORADO
ss.
Notary Public
The foregoing instrument was acknowledged before me this P day of January, 2010,
by , as President, and
as Secretary of Pueblo Municipal Shooters, Inc., a Colorado corporation.
Witness my hand and official seal.
My commission expires: /O /5 A
cf
Notary Public
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