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HomeMy WebLinkAbout12013RESOLUTION NO. 12013 A RESOLUTION APPROVING A PARKING PERMIT BY AND BETWEEN PUEBLO, A MUNICIPAL CORPORATION, THE URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO AND LOT 4 LLC BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. Pursuant to Section 2.01(i) of the Garage Lease Agreement between the City of Pueblo and Pueblo Main Street Garage Corporation dated December 14, 2006, the City Council hereby approves the Parking Permit dated November 8, 2010 by and between Pueblo, a Municipal Corporation, the Urban Renewal Authority of Pueblo, Colorado ("URAP") and Lot 4 LLC, a copy of which is attached hereto and incorporated herein by reference. SECTION 2. The President of the City Council is authorized to execute and deliver the Parking Permit in the name of the City and the City Clerk is authorized and directed to affix the seal of the City thereto and attest same. INTRODUCED: November 8, 2010 BY: Judy Weaver COUNCILPERSON Background Paper for Proposed RESOLUTION DATE: AGENDA ITEM # M-6 November 8, 2010 DEPARTMENT: Law Department Thomas J. Florczak, City Attorney TITLE A RESOLUTION APPROVING A PARKING PERMIT BY AND BETWEEN PUEBLO, A MUNICIPAL CORPORATION, THE URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO AND LOT 4 LLC ISSUE Should City Council approve the Parking Permit proposed for development of HARP Lot 4? RECOMMENDATION The Urban Renewal Authority recommends approval. BACKGROUND The Urban Renewal Authority of Pueblo, Colorado ("URAP") has entered into a development agreement and an amendment thereto with Lot 4 LLC to develop Lot 4 of the HARP Subdivision (Filing One) by constructing a three-story commercial building on the property with 12,717 square feet, except that if URAP purchases office space, a fourth floor will be constructed for a total size of approximately 17,342 square feet. The building may be marketed as commercial condominiums. In June 2010, the City Council approved the development plan in accordance with provisions in the Construction Covenants and Protective Covenants for the HARP Subdivision. Under Section 2.01(i) of the Garage Lease Agreement between the City and the Pueblo Main Street Garage Corporation dated December 14, 2006, the City agreed to make available a limited number of parking spaces in the Parking Structure near Main and "D" Streets for businesses located within the HARP Subdivision. URAP has negotiated with the developer of Lot 4 the provision of 42 spaces in the Parking Structure, with discounted rates during the first 6 years after st completion of the development (0% 1 year, increasing by 15% of full rate each year until year 7). Thereafter, the developer will pay the then applicable full parking rates for the spaces. These terms are included in the Parking Permit before Council. with The Parking Permit provides for a term expiring December 31, 2026, which would coincide the expiration of the Garage Lease to the City. FINANCIAL IMPACT Unknown. PARKING PERMIT THIS PARKING PERMIT (the "Permit ") is made and entered into as of this 8th day of November, 2010, by and between LOT 4, LLC, a Colorado limited liability corporation (the Developer), the Urban Renewal Authority of Pueblo, a body corporate and politic of the State of Colorado (the "Authority "), and PUEBLO, a municipal corporation, (the "City ") RECITALS A. City is lessee of a multi -story parking structure near Main and "D" Streets in the City of Pueblo, Colorado (the "Parking Structure ") under a Garage Lease Agreement with the Pueblo Main Street Garage Corporation, dated December 14, 2006 ( "Garage Lease Agreement ") B Pursuant to Section 2 01(i) of the Garage Lease Agreement, the City agreed to make available a limited number of parking spaces in the Parking Structure for businesses located within the Historic Arkansas Riverwalk Project, Filing One ( "HARP ") C City sold Lot 4 of HARP Filing One (the "Property ") to Authority, subject to certain restrictions of record, including construction covenants and Protective Covenants. D Authority entered into an Agreement for Disposition and Development dated May 12, 2009 with Developer, and Amendment No 1 to Agreement for Disposition and Development dated June 8, 2010 with Developer, which instruments were approved by City pursuant to Resolution No 11924 of the City Council of City, as required by certain Construction Covenants and Protective Covenants applicable to the Property (collectively, the "Development Agreement ") E. In order for Developer to meet its off - street parking requirements under applicable City ordinances to develop the Property in accordance with the approved Development Agreement, it is necessary or desirable that Developer obtains a permit to use a number of parking spaces in the Parking Structure. F City and Authority desire to cooperate in making available to Developer a number of parking spaces in accordance with the terms and conditions of this Parking Permit. AGREEMENT NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties (individually, a "Party" and collectively the "Parties ") and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, each covenants and agrees with the other as follows Section 1 The Parking Spaces. To enable the Developer to meet its off - street parking requirements under City ordinances, the City and Authority agree, subject to full compliance with the terms of this Parking Permit, to permit the Developer to use in Level 3 (a/k/a the "Orange Zone ") of the Parking Structure 42 spaces for use as Parking Spaces on a 1 first -come, first -served basis. The Parking Spaces shall be unmarked, located anywhere on Level 3 of the Parking Structure, and used by the employees and invitees of the Developer related to use of the Property as a restaurant and office condominium building, and for no other purpose The use of the Parking Spaces shall be only for parking motor vehicles and shall be subject to all rules, regulations and requirements of the City and the terms and conditions of the Garage Lease Agreement. Section 2 Term. The term (the Term) of this Parking Permit shall be from the date of this Parking Permit to and until December 31, 2026 Section 3 The Parking Fees. During the Term, the Developer shall pay the City parking fees as follows. until the first anniversary of the recording of the Certificate of Completion for the approved structure under the Development Agreement: __0_% of the City's full standard annual rate for parking in the Parking Structure as may be imposed by City, and as increased from time to time by City (the "Full Parking Rate "). Thereafter, commencing on the first anniversary of the recording of the Certificate of Completion, the charge shall be15% of the Full Parking Rate, thereafter, commencing on the second anniversary of the recording of the Certificate of Completion, the charge shall be 30% of the Full Parking Rate Thereafter the charge that Developer will be required to pay for the 20 parking spaces shall be increased on each such anniversary date by an additional 15% of the Full Parking Rate until the Developer is paying 100% of such Full Parking Rate. The forgoing rates shall apply only to the original 42 parking spaces allocated to the Developer by this Parking Permit. If the Developer desires to lease or rent more than 42 parking spaces in the Parking Structure, it shall pay the full standard annual rate for such additional parking spaces, subject to availability and approval of the City All payments shall be made monthly and in accordance with requirements applicable to the Parking Structure in effect at the time such fees are payable. Monthly payments shall be due and payable without notice or demand and in advance at the office of the City's Director of Finance, 150 Central Main Street, Pueblo, CO, 81003, or such other location as the City shall designate in writing to the Developer Section 4 Indemnification and Insurance Requirements. None Section 5 Assignment. This Parking Permit shall not be assigned by the Developer without the prior written consent of the City and Authority Section 6 Notices. Any notice required or permitted by this Parking Permit shall be in writing and shall be deemed to have been sufficiently given for all purposes if personally served or if sent by certified mail or registered mail, postage and fees prepaid, addressed to the Party to whom such notice is to be given at the address set forth below (a) if to City. City Manager, City of Pueblo, 200 S Main Street, Pueblo, CO, 81003, with a copy to City Attorney, 503 N Main Street, Suite 207, Pueblo, CO, 81003, (b) if to Authority Executive Director, Urban Renewal Authority of Pueblo, 126 N Mechanic Street, Pueblo, CO 81003 2 with a copy to Paul C Benedetti, Esq , 2730 Iliff Street, Boulder, CO 80305 (c) if to Developer Lot 4 LLC, 112 West "D" Street, Pueblo, CO 81003 , or at such other address as may hereafter be furnished in writing to the other Parties. Such notice shall be deemed to have been given if hand delivered, when deposited, delivery or postage charges prepaid, with an overnight courier service or by certified mail with the United Stated Postal Service. Section 7 Delays. Any delays in or failure of performance by any Party of its obligations under this Parking Permit shall be excused if such delays or failure are a result of acts of God, fires, floods, strikes, labor disputes, accidents, regulations or order of civil or military authorities, shortages of labor or materials, or other causes, similar or dissimilar, that are beyond the control of such Party Section 8 Default. Time is of the essence, subject to Section 7, above If any condition, obligation, or duty is not timely made, tendered, or performed by either Party, then this Parking Permit, at the option of the Party who is not in default, may be terminated by the non - defaulting Party, in which case, the non - defaulting Party may seek the equitable remedies of specific performance or injunction. The Parties hereby waive any rights to money damages. Section 9 Section Captions. The captions of the Sections are set forth only for the convenience and reference of the Parties and are not intended in any way to define, limit, or describe the scope or intent of this Parking Permit. Section 10 Additional Documents or Action. The Parties agree to execute any additional documents or take any additional action that is reasonably necessary to carry out this Parking Permit. Section 11 Integration and Amendment. This Parking Permit represents the entire agreement between the Parties with respect to the subject matter and there are no oral or collateral agreements or understandings with respect to the subject matter This Parking Permit may be amended only by an instrument in writing signed by the Parties. If any other provision of this Parking Permit is held invalid or unenforceable, no other provision hereof shall be affected by such holding, and all of the remaining provisions of this Parking Permit shall continue in full force and effect. Section 12 Waiver of Breach. A waiver by any Party to this Parking Permit of the breach of any term or provision of this Parking Permit shall not operate or be construed as a waiver of any subsequent breach by either Party Section 13 Governing Law; Attorney Fees, Venue. This Parking Permit shall be governed by the laws of the State of Colorado In the event of any litigation arising under this Parking Permit, the court shall award to the prevailing party its costs together with all reasonable and out -of- pocket expenses of any kind relating to the litigation including, but not limited to, reasonable attorney fees. Venue for any such litigation shall be Pueblo County, Colorado All 3 such litigation shall be filed in the District Court, County of Pueblo, State of Colorado, and each party submits to the jurisdiction of such District Court. To the extent allowed by law, each party waives its right to awry trial. Section 14 Binding Effect. This Parking Permit shall inure to the benefit of and be binding upon the Parties and their respective legal representatives, successors, heirs, and assigns, provided that nothing in this Section shall be construed to permit the assignment of this Parking Permit. Section 15 Execution in Counterparts. This Parking Permit may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute but one and the same instrument. Section 16 No Third -party Beneficiaries. This Parking Permit is intended to describe the rights and responsibilities only as to the Parties hereto This Parking Permit is not intended and shall not be deemed to confer any rights on any person or entity not named as a Party hereto Section 17 No Presumption. The Parties to this Parking Permit and their attorneys have had a full opportunity to review and participate in the drafting of the final form of this Parking Permit. Accordingly, this Parking Permit shall be construed without regard to any presumption or other rule of construction against the Party causing the Parking Permit to be drafted. Section 18 Severability If any provision of this Parking Permit as applied to any Party or to any circumstance shall be adjudged by a court to be void or unenforceable, the same shall in no way affect any other provision of this Parking Permit, the application of any such provision in any other circumstances or the validity, or enforceability of the Parking Permit as a whole Section 19 Minor Changes. The Parties executing this Parking Permit are authorized to make non - substantive corrections to this Parking Permit and attached exhibits, if any, as the Parties mutually consider necessary Section 20 Good Faith of Parties. In the performance of this Parking Permit or in considering any requested approval, acceptance, or extension of time, the Parties agree that each will act in good faith and will not act unreasonably, arbitrarily, capriciously, or unreasonably withhold, condition, or delay any approval, acceptance, or extension of time required or requested pursuant to this Parking Permit. Section 21 Parties Not Partners. Notwithstanding any language in this Parking Permit or any other agreement, representation, or warranty to the contrary the Parties shall not be deemed to be partners or joint venturers, and no combination of Parties shall be deemed to be partners or joint venturers, and no combination of Parties shall be responsible for any debt or liability of any other Party 4 IN WITNESS WHEREOF, this Parking Permit is executed by the Parties hereto in their respective names as of the date first above written. CITY PUEBLO, A MUNICIPAL CORPORATION ATTEST = By 1 / c ut�ti z l President of the City Council City Wrk AUTHORITY THE URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO ATTEST By /c DEVELOPER. LOT 4, LLC By ,/ C TjK i Co 4 I L 5