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HomeMy WebLinkAbout12096RESOLUTION NO. 12096 A RESOLUTION APPROVING A MASTER LEASE BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND PUEBLO ECONOMIC DEVELOPMENT CORPORATION DATED FEBRUARY 28, 2011 RELATING TO LOT 34, PUEBLO MEMORIAL AIRPORT INDUSTRIAL PARK SUBDIVISION BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Lease dated February 28, 2011 between Pueblo, a Municipal Corporation and Pueblo Economic Development Corporation, a Colorado nonprofit corporation (“Lease”) relating to Lot 34, Pueblo Memorial Airport Industrial Park Subdivision, 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 Council is authorized to execute and deliver the Lease in the name of the City and the City Clerk is directed to affix the seal of the City thereto. SECTION 2. This Resolution shall become effective immediately upon passage and approval. INTRODUCED: February 28, 2011 BY: Judy Weaver COUNCILPERSON Background Paper for Proposed RESOLUTION DATE: AGENDA ITEM # M-5 February 28, 2011 DEPARTMENT: Law Department Thomas J. Florczak, City Attorney TITLE A RESOLUTION APPROVING A MASTER LEASE BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND PUEBLO ECONOMIC DEVELOPMENT CORPORATION DATED FEBRUARY 28, 2011 RELATING TO LOT 34, PUEBLO MEMORIAL AIRPORT INDUSTRIAL PARK SUBDIVISION ISSUE Should City Council approve a lease of the vacant industrial building and property located at 310 Keeler Parkway to Pueblo Economic Development Corporation ("PEDCO") RECOMMENDATION PEDCO recommends approval. BACKGROUND The City owns a vacant building at 310 Keeler Parkway, Pueblo, Colorado, which was previously used by Adam Aircraft. The building consists of approximately 25,728 square feet suitable for manufacturing and warehouse use, and a 3000 square foot shed, and is located upon a parcel of land of approximately 4.41 acres. PEDCO has received a contract from the U.S. Army in the amount of $3,074,876 to undertake research and develop processes for reclamation of military components. Within that funding it represents that it has $120,000 for the first year for rent and utility costs for a suitable facility. It requests the use of 310 Keeler for such purpose. PEDCO anticipates that the grant and subleases to its subcontractors will provide employment. Under the terms of the Master Lease, PEDCO will lease the property for 5 years, with 3 optional renewal terms provided that it is not in breach, and subject to the parties being able to agree upon rent during each renewal term. Also, the rent of $120,000 a year during the initial term will be reduced by an amount equal to real property taxes on the leased premises, utility expenses, combined service fees and any costs of repair and maintenance of the building’s mechanical systems. Under the lease, if PEDCO fails to pay the rent, the City may terminate the Lease, but may not hold PEDCO liable for unpaid rent. FINANCIAL IMPACT During the first year of the initial term of the Lease, the City will receive rent of $120,000 less reduction for real property taxes, utility costs, combined service fees, and building mechanical system maintenance. The net rent to City may be as much as $60,000 or as little as $0, depending upon these reductions. 2 -17 2011 MASTER LEASE THIS MASTER LEASE (the Lease ") entered into as of February 28, 2011 by and between Pueblo, a Municipal Corporation (the "Lessor ") and Pueblo Economic Development Corporation, a Colorado nonprofit corporation (the "Lessee "), WITNESSETH WHEREAS, Lessor is the owner of or in control of Lot 34, Pueblo Memorial Airport Industrial Park, Pueblo County, Colorado, also known and numbered as 310 Keeler Parkway, Colorado, 81001, consisting of approximately 4 41 acres of land together with an approximately 25,728 square foot building ( the `Building "), 3,000 square foot shed and other improvements (collectively, the land, Building, shed and other improvements being the "Leased Premises "), and WHEREAS, Lessee has entered into a Cooperative Agreement with the US Army Research Laboratory (the "Government ") concerning Vet -Biz Initiative for National Sustamment (VINS) , Agreement No W911NF -11 -2 -0014 (the "Grant Agreement ") to undertake certain work for the Government ( the "Project "), and WHEREAS, Lessee is desirous of leasing the Leased Premises for the purpose of having a facility within which to undertake substantial portions of the Project, and Lessor is willing to lease the Leased Premises to Lessee upon the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the foregoing and mutual promises, covenants and conditions contained herein, Lessor and Lessee hereby agree as follows Article 1. Leased Premises. 1 01 Effective on Commencement Date, Lessor leases to Lessee and Lessee leases from Lessor the Leased Premises, upon and subject to the covenants, provisions and conditions herein. 1 02 "Easements" mean all deed restrictions, easements and reservations recorded in the records of Pueblo County, Colorado affecting the Leased Premises. 1 03 This Lease and Lessee's use of the Leased Premises are subject to the easements, including but not limited to the Easements, avigation 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. 1 04 "Commencement Date" means the date of this Lease first above written. Article 2. Term. 2 01 The Term of this Lease shall be five (5) years commencing on Commencement s Date and ending exactly sixty (60) months thereafter, unless sooner terminated as herein provided (the "Termination Date ") 2 02 Provided that the Lessee is not in default under this Lease, the term of this Lease may be extended for up to three (3) additional renewal terms of five (5) years each ( each being referred to herein as a "Renewal Term ") upon the same terms and conditions as set forth herein except that (a) the rental amount may be increased by Lessor for each such Renewal Term, and (b) no additional Renewal Term shall be granted beyond the three contemplated herein. In order to extend the Lease for any Renewal Term, Lessee shall give written notice to Lessor of its intent to extend not later than ninety (90) days prior to the expiration of the then effective Term or Renewal Term. After receipt of such notice, Lessor shall advise Lessee of the adjustment, if any, to be made in the amount of rent for the Renewal Term, and if acceptable to Lessee, the parties shall confirm same in a writing. If the parties fail to agree on the rent for any Renewal Term, the Lease shall terminate on the expiration of the Term or Renewal Term then in effect, and Lessee shall vacate the Leased Premises. Article 3. Rent. 3 01 Lessee shall pay to Lessor base rent for the Leased Premises for each year of the Term the sum of U S $120,000 00, adjusted as provided in Section 3 02, and payable in monthly installments of 1112 of the annual adjusted rent amount, in advance, without notice or demand, with the first monthly installment due on the Commencement Date, and subsequent monthly installments due on the same day of each month thereafter All payments shall be made or mailed via United States mail to the following address City of Pueblo, Attention. Director of Finance, 140 Central Main Street, Pueblo, CO 81003 , or to such other person or address as Lessor may from time to time designate to Lessee in writing. Lessee shall timely invoice the Government monthly for the rent and expenses associated with this Lease and all rent payments shall be paid by Lessee to Lessor within 10 days of receipt of the funds from the Government. In the event the Government declines, for any reason, to pay to Lessee funds for rent and lease expenses, Lessee shall promptly notify Lessor and Lessor shall have the right to terminate the Lease 3 02 The annual adjusted rent amount shall be equal to the annual base rent amount (a) reduced by (i) the annual amount of real property taxes upon the Leased Premises paid by Lessee, such amount not to include personal property taxes upon taxable personal property owned by Lessee or Lessee's approved sublessees, (ii) the annual cost actually paid by Lessee for the casualty insurance required in Article 11 of this Lease upon the Leased Premises, (in) combined service fees paid by Lessee to the City pursuant to § 3 -1 -14, Pueblo Municipal Code attributable to the Leased premises, (iv) expenses reasonably incurred for repair or maintenance of the building heating, cooling and mechanical systems and (v) all charges for sewer, water, gas, and electricity, furnished to or used in or supplied to the Leased Premises. and (b) increased by 50% of the amount of rent collected by Lessee from its sublessees. Lessee shall keep and maintain accurate records of the amounts paid for taxes, insurance and service fees and the amount of rents collected from sublessees and report same quarterly to Lessor 3 03 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 2 ten percent (10 %) per annum until paid. 3 04 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, except for the adjustments set forth in Section 3 02 hereof. 3 05 It is the intent of the parties hereto that, subject to the rent adjustment of section 3 02 hereof, this Lease is a "triple net" lease, with Lessor incurring no obligation, monetary or otherwise, hereunder Article 4. Use of Leased Premises 4 01 The Leased Premises shall be used and occupied by Lessee and Lessee's sublessees solely for research and manufacturing purposes associated with the Project and office space, storage and parking associated with or incident to such use. 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 and sublessees' 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 or cease to conduct business on the Leased Premises for any period longer than 90 consecutive days. Article 5. Condition of Premises. 5 01 IT IS UNDERSTOOD AND AGREED THAT THE LEASED PREMISES ARE LEASED "AS IS, WHERE IS, WITH ALL ITS FAULTS" AS OF THE COMMENCEMENT DATE AND THAT LESSOR IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTY OR REPRESENTATION OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, 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, ZONING, PHYSICAL OR ENVIRONMENTAL CONDITIONS, SIZE, UTILITIES, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE LEASED PREMISES WITH GOVERNMENTAL AND ENVIRONMENTAL LAWS AND REGULATIONS, THE TRUTH, ACCURACY OR COMPLETENESS OF ANY DOCUMENT OR OTHER INFORMATION PROVIDED TO LESSEE BY LESSOR OR ANY OTHER PERSON, OR ANY OTHER MATTER OR THING REGARDING THE LEASED PREMISES 5 02 The taking of possession of the Leased Premises by Lessee on Commencement Date shall be conclusive evidence that the Lessee accepts the Leased Premises in its then present condition "AS IS, WHERE IS, AND WITH ALL FAULTS" and that the Leased Premises are in good and satisfactory condition at the time such possession was taken. 5 03 Lessee has been afforded the opportunity to conduct its own environmental 3 investigation of the Leased Premises and has declined to do so Article 6. Alterations and Improvements. 6 01 Lessee shall not make any additions, alterations or improvements in or to the Leased Premises ( "Alterations ") without Lessor's prior written consent which consent shall not be unreasonably withheld. Lessee shall not permit or allow any lien to be filed or recorded against the Leased Premises or Lessor's or Lessee's interest therein, and Lessee shall fully cooperate with Lessor in obtaining the protections afforded Lessor under §38 -22 -105, C.R.S All Alterations made in or to the Leased Premises by Lessee with Lessor's consent shall become part of the Leased Premises and be surrendered with the Leased Premises at the termination of this Lease. All other alterations shall, at the option of Lessor, be removed by Lessee at its cost and expense 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 later than thirty (30) days after termination of this Lease. Lessee shall repair all damage to the Leased Premises caused by such removal The failure of Lessee to remove its equipment, fixtures and detachable improvements within thirty (30) 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 This provision shall be applicable to any equipment, fixture and improvement that is paid from program funds pursuant to the Grant Agreement or paid for by the Pueblo Development Foundation, except that (a) Lessee shall provide to Lessor a list of said equipment, fixtures and improvements with thirty (30) days of said equipment, fixtures and improvements being installed and placed upon the Leased Premises, and (b) equipment, fixture and improvement that is acquired with funds provided pursuant to the Grant Agreement or paid for by the Pueblo Development Foundation, shall be removed with sixty (60) days after termination of the Lease or, at the option of Lessor, be deemed abandoned. Lessee shall repair all damages to the Leases Premises caused by such removal. 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 Buildings and the structural components, roofs, walls, fixtures, electrical, heating, mechanical, plumbing and air conditioning systems thereof, in good working 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 loss occasioned by ordinary wear 7 02 If Lessee becomes obligated to make repairs caused by an occurrence covered by the insurance described in Article 11, the net proceeds of such insurance shall be made available to Lessee to offset the cost of such repairs. Article 8. Right of Entry 4 Except in the case of an emergency, Lessor, or Lessor's officers, employees, agents and representatives, and property management representative, as the case may be, may enter the Leased Premises at any time during normal business hours upon reasonable notice to Lessee During any non - emergency entry by Lessor, Lessor shall await clearance to enter and shall be accompanied by a representative of Lessee In the case of an emergency response, including any response to prevent damage to the Leased Premises, Lessor may enter the Leased Premises at any time without notice Article 9. Assignment and Rights to Sublease for Project. 9 01 Except as provided in Section 9 02, 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 in the Lessor's sole and absolute discretion to give assurance of performance and compliance with all terms and conditions of this Lease and the City Agreement. 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. 9 02 Lessee may, in its sole discretion, sublease all or any portion of the Leased premises to any person performing subcontracted work or activities associated with the Project; provided, however, that any such sublease shall ( a) be in writing and bind the sublessee to comply with all of the requirements of this Lease, and (b) be for a term not exceeding the remaining Term or Renewal Term then in effect. Lessee shall indemnify, defend and hold Lessor harmless from all claims, demands and actions by or from sublessees, irrespective of any claimed fault or negligence of Lessor Lessor shall have the right, but not the obligation, to enforce the terms of this Lease against any sublessee, cancel any sublease and /or to evict any sublessee for committing any violation of the provisions of this Lease Notwithstanding any action that may be taken by Lessor against any sublessee, Lessee shall be and remain responsible to Lessor for any breach or damage caused to the Leased Premises or to Lessor by any sublessee Article 10. Insurance and Indemnification. 10 01 Lessee shall indemnify and hold Lessor, its officers, employees and agents, harmless from and defend them against any and all claims or liability, including cost of defense and reasonable attorney fees, for any injury or damage to Lessee or its officers, agents or employees, or to Lessee's property, 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 solely by the wrongful or intentional acts of Lessor, its officers, employees, or agents, or (b) arising out of or resulting from the Leased Premises, or any condition thereon, or from Lessee's, or any sublessee of Lessee's, use and occupancy of the Leased Premises, or any equipment thereon 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 5 effective term of this Lease, (a) commercial general liability insurance including coverage for personal injury (including death), property damage and contractual coverage in the minimum amount of $1,000,000 combined single limit naming Lessor, its officers, employees or agents as additional insureds, and (b) Colorado Workers' Compensation insurance or other similar coverage in the statutorily mandated amounts. Neither party shall be liable to the other party for any claim, loss or casualty covered by such insurance and each party waives any claim therefor against the other party whether by way of subrogation or otherwise. 10 03 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 Colorado containing a provision prohibiting cancellation or material modification of the insurance except after no less than (10) days' notice to Lessor, shall be delivered to the Lessor within thirty (30) days after the Effective Date of this Lease, 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 11. Fire and Extended Coverage Insurance 11 01 Lessee shall, at its expense, during the Term of this 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 less 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 U S $25,000 00 and a standard Colorado mortgagee /landlord clause in favor of Lessor, and shall not be subject to cancellation, reduction or modification upon less than ten (10) days' written notice to Lessor Such insurance, by its terms or by endorsement, shall waive any right of subrogation of the 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, secure and maintain fire and extended coverage insurance on all fixtures, equipment and improvements installed by Lessee on the Leased Premises. Such insurance, by its terms or by endorsement, shall waive any right of subrogation of the insurer against Lessor, its officers, agents and employees, for any loss or damage resulting from 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, of every name, nature and kind whatsoever, including all governmental charges of whatsoever name, nature or kind, which may be levied, charged or imposed, or which may become a hen or charge on or against the Leased Premises or any part thereof, the leasehold interest of Lessor or Lessee herein, or the improvements situated on the Leased Premises prior to and during the effective period of this Lease 6 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 connection with the operation and maintenance of the Building on the Leased Premises. Lessee shall ensure that its sublessees pay before delinquency any and all property taxes levied or charged against any of the personal property belonging to sublessees and situated upon the Leased Property, and shall pay same before same may become any lien or encumbrance against the Leased Property 12.03 Lessee shall furnish Lessor within thirty (30) days after any amount is payable by Lessee under this Article 12, official receipts of the appropriate taxing authority or other proof satisfactory to Lessor evidencing such payments as are required under this Article Article 13. Utilities. Lessee shall pay, before delinquent, all charges for sewer, water, gas, electricity, telecommunications and all other utility services furnished to or used in or supplied to the Leased Premises. Lessor shall not be obligated to furnish or provide any utilities, facilities or services of any kind. Article 14. Damage to or Destruction of Premises. 14 01 If, 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 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 01, 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 and proceeds of insurance are paid to Lessor, 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, 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 7 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 any public or quasi - public use or purpose under any statute or by the right of eminent 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 furnishings or payments for relocation, if any Article 16. Holding Over There shall be no holding over under this Lease Upon termination, Lessee shall immediately vacate the Leased Premises and immediately surrender possession thereof to Lessor Article 17. Quiet Possession. Lessee may peacefully have, hold and enjoy the Leased Premises, subject to the other terms hereof, provided that Lessee performs all of Lessee's covenants and agreements contained herein. Article 18. Default. 18 01 In the event of default at any time by Lessee in the payment of the monthly installments or rent of the performance of any of its other covenants and obligations herein contained, and such default is not cured within thirty (30) days after written notice specifying the default is given by City to Lessee, or in the case of non - pecuniary default incapable of being cured within 30 days, not cured within ninety (90) days of such notice, provided that the cure is commenced within thirty days and diligently pursued, then, in such event, Lessor shall have the nght to either (a) Terminate this Lease and reenter and take possession of the Leased Premises, and /or (b) Pursue any remedy whatsoever provided by law; provided, however, that PEDCO shall not have personal liability for unpaid rent under this Lease if, upon demand by Lessor, it promptly surrenders possession of the Leased Premises in good order and repair; and /or 8 (c) Re -enter and take possession of the Leased Premises and use its best efforts to relet the same for and on account of Lessee for the then full remaining portion of the 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 18 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 reletting to exercise its right to terminate this Lease; and /or (d) Cure the default on Lessee's behalf and 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 18 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 re- letting of the Leased Premises after deducting all Lessor's reasonable expenses including, without limitation, all repossession costs, brokerage commissions, legal 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 a dispute arising out of this Lease, or the performance or breach thereof, the Court shall award costs, expenses, and attorney fees to the prevailing party 18 04 If Lessee violates any of the terms and provisions of this Lease or defaults in any of its obligations hereunder other than the payment of monthly 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 18 05 Nothing in this Article shall be construed to require Lessor to give any notice of default or other notice to Lessee's sublessees. Article 19. Waiver and Time of Essence No waiver of any breach or breaches of any provision, covenant or condition of this 9 Lease shall 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 of monthly rent 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 20. 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 notice, demand or communication is sent by certified United States mail, addressed to City Manager City of Pueblo 1 City Hall Place Pueblo, Colorado 81003 and to City Attorney Pueblo Law Department 503 N Main Street, Suite 203 Pueblo, Colorado 81003 (or to such other person or address as may hereafter from time to time be designated for this purpose by Lessor to Lessee in wrrtmg) 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 of or in 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 President Pueblo Economic Development Corporation 301 N Main Street, Suite 200 Pueblo CO 81003 (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 21. Environmental Provisions. 21 01 For the purpose of this Lease, "Hazardous Materials" means any hazardous or toxic substance, material or waste which is or becomes regulated by any local government authority, 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 10 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. 21 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, and sublessees on all or any portion of the 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 seq. and the Clean Air Act, 42 U S C Section 7401 et seq. 21 03 Lessee agrees to defend, indemnify and forever hold harmless the Leased Premises and Lessor, and its officers, employees, 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, characterization, remediation 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, subcontractors and sublessees. The provisions of this Article 21 and Article 10 01 shall expressly survive the expiration of the Term or other termination of this Lease Article 22. Miscellaneous Provisions. 22 01 Colorado Law This Lease shall be governed by the laws of the State of Colorado and shall be construed in accordance therewith without reference to such State's choice of law and/or conflict of law principles. 22 02 Writing for Waiver or Modification. No provision of this Lease may be waived or 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. 22 03 Binding Effect. This Lease sets forth the entire and complete understanding and agreement of the parties hereto with respect to the subject matter hereof. 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. 22.04 Construction. Throughout this Lease, the singular shall include the plural, the plural shall include the singular; and the masculine and neuter shall include the feminine, 11 wherever the context so requires. 22 05 Text to Control. The headings of sections are included solely for convenience of reference If any conflict between any heading and the text of this Lease exists, the text shall control. 22 06 Severability 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 remaining 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 22 07 Venue and Jury Trial. Lessor and Lessee agree that exclusive venue for all actions or causes of action relating to this Lease or the Leased Premises shall be Pueblo County, Colorado All such actions shall be filed in the District Court in and for the 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 22 08 Lessee's Warranties. The persons signing this Lease on behalf of Lessee represent and warrant that such persons and Lessee have the requisite power and authority to enter into, execute and deliver this Lease and that this Lease is a valid, legally binding obligation of Lessee enforceable against Lessee in accordance with its terms. 22 09 Time of Essence Time shall be and is of the essence as to the performance of all terms, conditions and obligations under this Lease 22 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 22 11 Annexation. Lessor shall have the right, at any time, to annex the Leased Premises into the City of Pueblo without notice to Lessee or Lessee's sublessees. IN WITNESS WHEREOF, Lessor and Lessee, by their duly authorized representatives, have executed this Lease on the day and year first above written. PUEBLO, A MUNICIPAL CORPORATION PUEBLO ECONOMIC DEVE • PMENT CO : ' ! : • TION, a Colorado onprofit • orporation • �1 L\ By :y l�..� President of he y Council Darnel ' . Centa - 'resident Attest. __...�k __ 1, , [SEAL] City 4' erk 12