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HomeMy WebLinkAbout12840RESOLUTION NO. 12840 A RESOLUTION APPROVING A LEASE AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND ANGELO’S PIZZA PARLOR AND A MORE’, INC., A COLORADO CORPORATION, RELATING TO THE LEASE OF THE CITY HALL TRASH ENCLOSURE AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Lease Agreement dated December 9, 2013 between the City of Pueblo, a Municipal Corporation, and Angelo’s Pizza Parlor and A More’, Inc., a Colorado Corporation, a copy of which is attached hereto ("Agreement"), 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 Agreement in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 2. The officers and staff of the City are directed and authorized to perform any and all acts consistent with the intent of this Resolution and attached Agreement which are necessary to effectuate the transactions described therein. SECTION 3. This Resolution shall become effective upon final passage and approval. INTRODUCED: December 9, 2013 BY: Chris Kaufman Background Paper for Proposed RESOLUTION DATE: DECEMBER 9, 2013 AGENDA ITEM # M-4 DEPARTMENT: PLANNING AND COMMUNITY DEVELOPMENT JEFF BAILEY, P.E., ACTING DIRECTOR TITLE A RESOLUTION APPROVING A LEASE AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND ANGELO’S PIZZA PARLOR AND A MORE’, INC., A COLORADO CORPORATION, RELATING TO THE LEASE OF A PORTION OF THE CITY HALL TRASH ENCLOSURE AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME ISSUE Should City Council approve a Lease Agreement between the City of Pueblo and Angelo's Pizza Parlor and A More', Inc. related to the lease of a portion of the City Hall trash enclosure? RECOMMENDATION Approval of the Resolution. BACKGROUND This Resolution approves the lease of a portion (64 square feet) of the trash enclosure provided by the City for the City Hall Renovation Project located in the parking lot of #1 City Hall Place. The trash enclosure was constructed twice as large as needed for future use, and to assist with the collection of trash from nearby commercial development sites. Since the development sites on HARP were not designed large enough to handle all of the trash collected on premises which often requires multiple collections in one day, the developer Gary Anzuini discussed a solution to build one trash enclosure that could be shared by adjacent users. As described in Section 5 of the Lease Agreement, Use of Leased Premises, the lessee requires that only solid waste and unused food product be deposited and collected on a regular basis. No liquids shall be deposited in this trash dumpster because the enclosure has no drain or drainage system. This Lease can be terminated if the City needs the extra capacity for trash from City Hall or Memorial Hall in the future. FINANCIAL IMPACT The Lease Agreement requires a security deposit of $300. The monthly rent for the enclosure is $125 per month. The term of the Lease shall be for a five year period unless sooner terminated. The funds generated from the rent of this Lease will be deposited into the General Fund. LEASE AGREEMENT THIS LEASE is entered into as of the 9 of December, 2013 by and between Pueblo, a Colorado municipal corporation ( "Lessor ") and Angelo's Pizza Parlor and A More', Inc., a Colorado Corporation authorized to do business in the State of Colorado ( "Lessee" ). WHEREAS, Lessor is the owner of a trash dumpster enclosure located on the grounds of Memorial Hall /City Hall complex located at 1 City Hall Place, Pueblo, CO 81003; WHEREAS, Lessee is desirous of leasing approximately half of the trash dumpster enclosure 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: 1. PREMISES Lessor leases to Lessee, and Lessee leases from Lessor, the following premises, upon and subject to the covenants, provisions and conditions herein: Approximately sixty -four (64) square feet of the trash dumpster enclosure located at 1 City Hall Place, Pueblo, CO 81003, the location of which is depicted on the attached site plan, which is marked as Exhibit A and incorporated herein by reference (hereinafter "Premises "). 2. TERM. The Term of this Lease shall be from November 1, 2013 to December 31, 2018, unless sooner terminated as herein provided. 3. RENT. 3.01 Lessee shall pay to Lessor rent in the amount of One Hundred Twenty Five Dollars ($125.00) per month for use of the Leased Premises. 3.02 Rent shall be due in advance on the first day of each month. 4. SECURITY DEPOSIT. Upon execution of this Lease, Lessee shall deliver to Lessor a security deposit in the amount of Three Hundred Dollars ($300.00). In the event that Lessee fails to pay rent or any other fee due under this Lease or fails to perform any obligation at any time under this Lease, Lessor may draw from the security deposit to remedy Lessee's default. In the event that 1 the Lessor draws from this deposit to remedy Lessee's default, Lessor shall notify Lessee in writing and require Lessee to replenish the deposit to the original level. Failure to comply with this section shall constitute a material breach of this Lease. 5. USE OF LEASED PREMISES 5.01 The Leased Premises shall be used by Lessee only for the purpose of the deposit of solid waste and unused food products associated with the Lessee's restaurant business. The solid waste and unused food products shall be deposited into receptacles provided by a trash hauler licensed to transact business in the City of Pueblo. The receptacles shall not be overloaded and shall be emptied by the licensed trash hauler as often as is commercially reasonable, but in no event, less frequently than every seven (7) days. The Leased Premises shall not be used for any other purposes whatsoever without first obtaining the Lessor's express written consent. 5.02 The Leased Premises do not have a drain or a drainage system. Therefore, Lessee agrees that it shall not deposit any liquids of any sort or nature into its trash receptacles on the Leased Premises. Failure to comply with this section shall constitute a material breach of this Lease. 5.03 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 damage, nuisance, or waste in, on, or about the Leased Premises, including but not limited to the area surrounding the trash dumpster enclosure. 5.04 Lessee shall instruct its employees on the limits this Lease places on their use of the Leased Premises and their obligations under this Lease, and shall monitor its employees and their use of the Leased Premises to ensure that they use the same in a careful, safe and proper manner in compliance with this Lease. 6. CONDITION OF PREMISES. 6.01 IT IS UNDERSTOOD AND AGREED THAT THE LEASED PREMISES ARE LEASED "AS IS, WHERE IS, WITH ALL ITS FAULTS" AND THAT LESSOR IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTY OR REPRESENTATION N 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 MERCHANTABILITY OR SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 2 6.02 The taking of possession of the Leased Premises by Lessee shall be conclusive evidence that the Lessee accepts the Leased Premises in its then present condition and that the Leased Premises are in good and satisfactory condition at the time such possession was taken. 7. ALTERATIONS AND IMPROVEMENTS. 7.0I Lessee shall not make or install any additions, alterations, equipment or improvements in or to the Leased Premises ( "Alterations ") other than trash receptacles, without Lessor's prior written consent. 7.02 Lessee shall remove all trash receptacles at the termination of this Lease. 7.03 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. S. RIGHT OF ENTRY. Lessor and its officers, employees, agents and representatives may enter the Leased Premises at any time without notice to Lessee or its employees and such entry shall not violate any express or implied covenant under this Lease. 9. TERMINATION. Lessor and lessee may terminate this Lease for any reason upon thirty (30) days prior written notice. 10. ASSIGNMENT. Lessee shall not voluntarily or by operation of law assign, rent or sublet all or any part of the Leased Premises or Lessee's interest therein without the express written consent of Lessor, which consent may be denied at the sole and absolute discretion of Lessor. Any assignment or attempted assignment or subletting of the Leased Premises or any interest herein by Lessee without Lessor's express written consent shall be null and void. No such assignment or subletting nor Lessor's consent thereto shall release or discharge Lessee from any obligation or liability under this Lease. Lessor may, in its sole and absolute discretion, condition any assignment or sub - letting of the Leased Premises or Lessee's interest herein upon the payment of an assignment fee and /or an increase in rent. 11. INSURANCE, INDEMNITY, AND RELEASE. 11.01 Lessee shall, within ten (10) days after this Lease is executed by both parties, provide to the Lessor the following Certificates of Insurance showing that Lessee has obtained the following insurance coverages. Lessee shall maintain all such insurance coverages at all times 3 during the term of this Lease: (a) Workers' Compensation insurance complying with statutory requirements in Colorado. (b) Commercial General Liability ( "CGL ") Insurance issued to and covering the liability of Lessee, to be written on a Commercial General Liability policy form CG 00 0I, with coverage limits of not less than One Million Dollars ($1,000,000.00) per person and occurrence for personal injury, including but not limited to death and bodily injury, and Fifty Thousand Dollars ($50,000.00) per occurrence for property damage. 11.02 Every insurance policy and certificate of insurance specified in this Section shall contain a provision requiring that Insuror shall notify the Lessor in writing, in the event that any such policy or coverage is revoked, terminated, rescinded, or lapses. All i nsurance policies required by this Lease shall contain an endorsement waiving subrogation against the Lessor. 11.03 Lessee forever releases and waives any and all claims, known and unknown, presently existing or arising in the future, and any suit or action in law or equity against the City of Pueblo and its officers, employees, agents and independent contractors ( "Released Parties ") in any court or tribunal, based on tort, statute, violation of civil rights, or any other legal theory, for money damages resulting from any physical injury, psychological injury, death, or property damage or loss that Lessee may suffer, related to or caused by the Released Parties which are in any way related to the Leased Premises or any of the activities under this Lease. 11.04 Lessee shall not file, pursue or prosecute any suit, action or proceeding, in law or in equity, in any court or tribunal, against the Released Parties, based on tort, statute, violation of civil rights, or any other legal theory, for money damages resulting from any physical injury, psychological injury, death, or property damage or loss that Lessee may suffer related to or caused by the Released Parties which are in any way related to the Leased Premises or any of the activities under this Lease. 11.05 Lessee shall indemnity, defend and hold harmless the Released Parties against any liability for any damages, attorneys fees, and restitution that may be imposed by any court or tribunal in any suit, action or proceeding in law or equity filed by any person or entity based on tort, statute, violation of civil rights, or any other legal theory, for money damages resulting from any physical injury, psychological injury, death, or property damage or loss which are in any way related to the Leased Premises or any of the activities under this Lease. 12. HOLDING OVER. There shall be no holding over under this Lease. Upon termination, Lessee shall 4 immediately vacate the Leased Premises and immediately surrender possession thereof to Lessor. 13. QUIET POSSESSION. Lessee waives any right of quiet or peaceful possession under this Lease. 14. DEFAULT. 14.01 In the event of default at any time by Lessee in the performance of any of its covenants and obligations herein contained, and such default is not cured within three (3) days after written notice specifying the default is given by Lessor to Lessee, then in such event, Lessor shall have the right, upon a subsequent three (3) days' notice in writing to Lessee specifying the date of termination, to terminate this Lease and reenter and take possession of the Leased Premises. 14.02 If Lessee violates any of the terms and provisions of this Lease or defaults in any of its obligations 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. 15. ENVIRONMENTAL PROVISIONS. 15.01 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 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. 15.02 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 guests, Licensees, employees, agents, invitees, contractors or subcontractors, 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. 5 15.03 Lessee agrees to defend, indemnify and forever hold harmless the City of Pueblo, 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 and subcontractors. 16. NOTICES. Any notice, demand or request provided in this Lease shall be in writing and sent by certified mail, return receipt requested to the other Party at the addresses listed below or at such other address as each party may provide the other by notice as provided in this section. Such notice shall be deemed to have been given when deposited in the regular United States mail: If to Lessor: City Manager 200 S. Main Street Pueblo, CO 81003 With an additional copy to: City Attorney City of Pueblo 1 City Hall Place Pueblo, CO 81003 If to Lessee: 105 E. Riverwalk Pueblo, CO 81003 17. RELATIONSHIP. Nothing in this Lease is intended to, or shall be deemed to constitute, a partnership or joint venture between the Parties, or to create any agency or partner relationship between the Parties. Neither Party shall hold itself out as a partner, joint venture, agent, or representative of the other under this Lease. 18. ADDITIONAL DOCUMENTS OR ACTION. The Parties agree to execute any additional documents or take any additional action that may be necessary to carry out this Lease. 6 19. FORCE MAJEURE. Any delays in or failure of performance by any party of its obligations under this Lease shall be excused if such delays or failure are a result of acts of God, fires, floods, storms, lightning strikes, labor strikes, labor disputes, accidents, regulations or orders of civil or military authorities, shortages of labor or materials, or other causes, similar or dissimilar, which are beyond the control of such party. 20. BINDING EFFECT. This Lease shall inure to the benefit of, and be binding upon, the Parties, their respective legal representatives, successors, and assigns; provided, however, that nothing in this paragraph shall be construed to permit the assignment of this Sub -Lease except as otherwise expressly authorized herein. 21. SECTION CAPTIONS. The captions of the Sections in this Lease 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 Lease. 22. INTEGRATION, SEVERABILITY, AMENDMENT, AND C OUNTERPARTS. This Lease represents the entire agreement between the Parties and supersedes all prior discussions and written agreements or understandings. This Lease may be amended only by an instrument in writing signed by the Parties. If any provision of this Lease is held invalid or unenforceable, no other provision shall be affected by such holding, and all of the remaining provisions of this Lease shall continue in full force and effect. This Lease may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together constitute one and the same agreement. 23. NO THIRD PARTY BENEFICIARIES; NO WAIVER OF IMMUNITIES. Nothing in this Lease is intended, nor should it be construed, to create any rights, claims, or benefits or assume any liability for or on behalf of any third party, or to waive any immunities or limitations conferred under federal or state law, including but not limited to the Colorado Governmental Immunity Act,§ 24 -10 -101 et seq., C.R.S. 24. WAIVER OF BREACH. A waiver by any party to this Lease of the breach of any term or provision of this Lease shall not operate or be construed as a waiver of any subsequent breach by either party. 25. GOVERNING LAW AND VENUE. 7 This Lease shall be governed by the laws of the State of Colorado. Venue for any action arising under this Lease or for the enforcement of this Lease shall be in a state court with jurisdiction located in Pueblo County, Colorado. To the fullest extent permitted by law, each Party hereto hereby waives its right to a trial by jury. 26. CERTAIN PROVISIONS SURVIVE EXPIRATION OF TERM AND TERMINATION. The provisions of this Lease pertaining to insurance, indemnification, releases, waivers, payments to the Lessor, and liability shall survive the expiration of the term of this Lease and termination of this Lease and continue in effect for a period of six (6) years following the termination of this Lease and for such further time as it may take to completely and finally negotiate, settle, or litigate any claim or suit concerning the same. 27. ATTORNEY'S FEES AND COSTS OF COLLECTIONS. In the event that it becomes necessary for the City to bring any action or proceeding to collect unpaid re nt, costs, or other sums due under this Lease, to enforce any provision of this Lease, to recover damages for Lessee's breach of this Lease, or to seek specific performance of this Lease, the City shall be entitled to collect its reasonable attorney's fees, costs of suit, and costs of collection as part of the judgment in such action or proceeding. 28. AUTHORITY OF SIGNERS. Each person signing this Lease on behalf of a party represents and warrants that he or she has the requisite power and authority to enter into, execute, and deliver this Lease on behalf of such party and that this Lease is a valid and legally binding obligation of such party enforceable against it in accordance with its terms. IN WITNESS WHEREOF, Lessor and Lessee, by their duly authorized representatives, have executed this Lease on the day and year first above written. LESSEE: Angelo's Pizza Parlor and A More', Inc. a Colorado co so ion By: / 7651 ff 64 Its: V f � - in 4;d 8 . COUNTY OF PUEBLO ) ) ss. STATE OF COLORADO ) Cr Thegoing instrument was acknowledged before me this ZI day of November, 2013 by J E)3ter:_,,t - Ve q' on behalf of Angelo's Pizza Parlor and A More', Inc. Witness my hand and official seal. My Commission Expires: /. (SEAL) 1 V- , UUt (t- 2t.._ Notary Public i Gloria Jeane McKim Notary Public LESSOR: State of Colorado CITY OF PUEBLO, CO ID 2 0094001248 A M 401011Rilito MY ConsnIssion Expires January 27, 2017 011111111111, 1 ouncil President ATTESTED BY: (::--�- CIT LERK 9 s 4 : 1 Z N Q lam H w o a 4 o z Y o 2 j w Q I Q d S 5 y ' V LLJ Z 2 w cc 4 Htow 0 . g. Q J w w w — W O W I W U w a W - 4 N Z co wOt 4 Q02 F in N t o " t d ¢ z Q a ea a to Z - EC a w Z�r . GC WO U �' firt C W 0 cc Z M al -, ° , .e ° `-`� } 4 W Q Y Q - - : * ' 4+: t$ N 0 � Q � ` i' `w � , rl '' Q> \ "' O M1� � 4 Nj ,,-4 0:4 7 ,:jkl?.- - '.'• . f 1 CC ., • A 0 'kiii ,,e, `x ,i.,,,)," {G ,� �� � �S � ,,` F ,:: Y 'P : V W CO "t N Z O Z iii a= ., Q O J V F O W W ,` ^S a[ 0 pu+ a Y LL V cc _ J p a CI' > C Z a Q Lu N Z O Z I z< Q U X N w O. —ZF. C ■ > _ O CC V! b. N R- _ 40 Y U Z 6u- u � o � a e Sa �t LU Id Z S a aoo J r,.: