Loading...
HomeMy WebLinkAbout10379ORDINANCE NO. 10379 AN ORDINANCE APPROVING A LEASE BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND BLACK HILLS COLORADO ELECTRIC, LLC, A DELAWARE LIMITED LIABILITY FOR THE USE OF CITY-OWNED PARCEL NO. 536100025 AND AUTHORIZING THE MAYOR TO EXECUTE SAME BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Lease between the City of Pueblo, a Colorado municipal corporation and Black Hills Colorado Electric LLC, a Delaware limited liability company, for City-owned property, Parcel No. 536100025, dated February 14, 2023, a copy of which is attached hereto and incorporated herein by reference, having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The Mayor is hereby authorized to execute the Lease on behalf of the City and the City Clerk is authorized to affix the Seal of the City thereto and attest same. SECTION 3. The officers and staff of the City are authorized to perform any and all acts consistent with this Ordinance and the Lease Agreement to implement the transactions described herein. SECTION 4. This Ordinance shall become effective immediately upon final action by the Mayor and City Council. Action by City Council: Introduced and initial adoption of Ordinance by City Council on January 23, 2023 . Final adoption of Ordinance by City Council on February 13, 2023 . President of City Council Action by the Mayor: ☒ Approved on February 15, 2023 . □ Disapproved on based on the following objections: Mayor Action by City Council After Disapproval by the Mayor: □ Council did not act to override the Mayor's veto. □ Ordinance re-adopted on a vote of , on □ Council action on _______ failed to override the Mayor’s veto. President of City Council ATTEST Deputy City Clerk City Clerk's Office Item # N6 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: January 23, 2023 TO: President Heather Graham and Members of City Council CC: Mayor Nicholas A. Gradisar VIA: Marisa Stoller, City Clerk FROM: Scott Hobson, Acting Director Planning and Community Development SUBJECT: AN ORDINANCE APPROVING A LEASE BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND BLACK HILLS COLORADO ELECTRIC, LLC, A DELAWARE LIMITED LIABILITY FOR THE USE OF CITY-OWNED PARCEL NO. 536100025 AND AUTHORIZING THE MAYOR TO EXECUTE SAME SUMMARY: This Ordinance approves a Lease between the City and Black Hills Colorado Electric, LLC (“Black Hills”) of a .34-acre City-owned property, Parcel No. 536100025, located immediately northwest of the Black Hills Units 5 & 6, south of a BNSF-owned railroad spur, and west of the parking lot shared by Black Hills Energy and the Riverwalk. PREVIOUS COUNCIL ACTION: None. BACKGROUND: Black Hills has submitted a request to lease a .34-acre City-owned property, Parcel No. 536100025, located immediately northwest of Black Hills Units 5 & 6, south of a BNSF- owned railroad spur, and west of the parking lot shared by Black Hills and the Riverwalk. Black Hills would like to use this parcel for a fenced parking lot and laydown yard for the storing of materials and equipment and to provide access to other portions of its property. The term of the lease is for one year, from March 1, 2023 to February 28, 2024 and the lease will automatically renew on an annual basis, unless terminated by the City or Black Hills, upon 60 days prior written notice. Annual renewals will not be effective after February 28, 2033, at which time the parties will be required to negotiate a new lease. FINANCIAL IMPLICATIONS: The City will receive an annual lease payment of $1,200, payable in advance. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: Should City Council not approve this Ordinance, the property will remain the responsibility of the City to manage and maintain. RECOMMENDATION: ATTACHMENTS: 1. Lease Agreement-Signed by John Vigil 2. Black Hills-Property Map Exhibit LEASE AGREEMENT This Lease Agreement ("Lease") is made as of this 14th day of February, 2023, by and between the City of Pueblo, a Colorado municipal corporation ("Landlord") and Black Hills Colorado Electric, LLC, a Delaware limited liability company ("Tenant"). Landlord and Tenant are sometimes referred to herein as a "Party" and collectively, as the "Parties." ARTICLE 1 BASIC DATA Each reference in this Lease to any of the terms contained in this Article or otherwise defined in this Lease will be construed to incorporate the definitions or data stated under that term, defined as follows: 1.1. Leased Premises: .Parcel No. 536100025, located immediately northwest of Black Hills Units 5 & 6, south of a BNSF-owned railroad spur, and west of the parking lot shared by Black Hills and the Riverwalk (approximately .34 acre) (hereinafter"Leased Premises"). 1.2. Term: One (1) year 1.3. Commencement date: March 1, 2023 1.4. Termination date: February 28, 2024 1.5. Annual Renewal: This Lease will automatically renew on an annual basis, unless terminated by the Landlord or Tenant, upon 60 days prior written notice. Annual renewals will not be effective after February 28, 2033, at which time the Parties will be required to negotiate a new lease. 1.6. Landlord address: City of Pueblo Attn: Mayor 1 City Hall Place, 2nd Floor Pueblo, CO 81003 1.7. Tenant address: Black Hills Colorado Electric, LLC 105 S. Victoria Ave. Pueblo, CO 81003 ARTICLE 2 LEASE OF PREMISES 2.1 Leased Premises. In consideration of the mutual covenants and agreements herein contained, Landlord hereby agrees to lease to Tenant and Tenant agrees to lease from Landlord, the above-described Leased Premises, according to the terms and conditions set for in this Lease. 1 2.2. Surrender. On the Termination Date of this Lease, Tenant shall quit and surrender the Leased Premises in substantially the same condition as they were on the Commencement Date, reasonable wear and tear excepted. Within sixty (60) days following termination of this Lease, Tenant shall remove all personal property from the Leased Premises, provided that Tenant repairs any damage caused by such removal. Any items of personal property not removed by Tenant within sixty (60) days following the Termination Date of this Lease may be retained or disposed of by Landlord, at Tenant's expense. ARTICLE 3 RENT 3.1 Rent. Tenant shall pay Landlord, in advance, annual rent in the amount of$1,200.00. 3.2. Tenant's Tax Obligations. Tenant shall be solely responsible for the payment of its own tax obligations and agrees that said obligations shall not be paid by Landlord. Tenant's own tax obligations include, but are not limited to, sales and use taxes, personal property taxes and possessory interest real property taxes. ARTICLE 4 USE 4.1. Use. Tenant may use the Leased Premises as a fenced parking lot and laydown yard for the storing of materials and equipment and to provide access to other portions of its property. Any change of use by the Tenant shall require the prior written consent of the Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. 4.2. Compliance with Laws. During the Term of this Lease, Tenant shall comply with all applicable laws, rules, regulations and ordinances of all federal, state, county and municipal authorities having jurisdiction over the Leased Premises. ARTICLE 5 INDEMNIFICATION AND INSURANCE 5.1. Landlord's Indemnity. Landlord shall defend, indemnify and save harmless Tenant and its agents and employees against all costs (including, without limitation, reasonable attorneys' fees), damages or claims whether for personal injury, bodily injury or property damage, during the Term of this Lease, occurring on the Leased Premises, if caused by an act or omission by Landlord or its agents or employees. 5.2. Tenant's Indemnity. Tenant shall defend, indemnify and save harmless Landlord and its agents and employees against all costs (including, without limitation, reasonable attorneys' fees), damages or claims whether for personal injury, bodily injury or property damage, during the Term of this Lease, occurring on the Leased Premises, if caused by an act or omission by Tenant or its agents or employees. 5.3. Landlord's Insurance. 5.3.1. Liability Insurance. During the Term of this Lease, Landlord must maintain insurance covering Landlord's liability for ownership, occupation and use of the Leased Premises. Such insurance must provide limits of not less than $1 million with respect to injury to any one 2 person, $1 million with respect to any one occurrence and $500,000 with respect to property damage arising out of any one occurrence. 5.4. Tenant's Insurance. 5.4.1. Liability Insurance. During the Term of this Lease, Tenant must maintain insurance covering Tenant's liability for occupation and use of the Leased Premises. Such insurance must provide limits of not less than $1 million with respect to injury to any one person, $1 million with respect to any one occurrence and $500,000 with respect to property damage arising out of any one occurrence. 5.4.2. Worker's Compensation Insurance. Tenant shall maintain and keep in force an "all- employees" compensation insurance policy as required under the laws of the State of Colorado. 5.5. Waiver of Subrogation. The Parties to this Lease hereby release each other and their respective officers, agents, managers, directors, and employees from any and all claims and demands for loss, damages, expense or injury to any person which are caused by or result from any risk insured against under insurance policies carried or required to be carried by the Parties and in force at the time of any such loss, to the extent such loss is covered by such Parties' insurance policies. The Parties shall each obtain from their respective insurers waivers of all rights of subrogation, which the insurer of one Party might have against the other Party and Landlord and Tenant shall each indemnify the other against any loss or expense, including reasonable attorneys' fees, resulting from the failure to obtain such waivers of subrogation. ARTICLE 6 DEFAULT AND REMEDIES 6.1. Tenant's Default. If Tenant fails to perform or observe any agreement or condition contained in this Lease, and such failure is not corrected within thirty (30) days after Tenant receives notice from Landlord of such failure, then, in addition to all other remedies available at law or in equity, Landlord has the right to terminate this Lease and recover possession of the Leased Premises in the manner prescribed by law. 6.2. Landlord's Default: In the event Landlord defaults in the performance of its obligations hereunder, and such failure is not corrected within thirty (30) days after Landlord receives notice from Tenant of such failure, then, in addition to all other remedies available at law or in equity, Tenant shall have the right to terminate this Lease by written notice to the Landlord. 6.3. Disputes. In the event of an unresolved dispute between Landlord and Tenant regarding the performance by either Party of an obligation or condition of this Lease, as a condition precedent to the filing of litigation, authorized representatives of Landlord and Tenant will use good faith and commercially reasonable efforts to resolve such disputes. ARTICLE 7 CONDITION OF PREMISES 7.1 EXCEPT AS SPECIFICALLY SET FORTH IN THIS LEASE, IT IS UNDERSTOOD AND AGREED THAT LANDLORD 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, 3 FITNESS FOR A PARTICULAR PURPOSE ZONING, PHYSICAL OR ENVIRONMENTAL CONDITIONS, UTILITIES, GOVERNMENTAL APPROVALS, COMPLIANCES OF THE LEASED PREMISES WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF ANY DOCUMENT OR OTHER INFORMATION PROVIDED TO TENANT BY ANY OTHER PERSON, OR ANY OTHER MATTER OR THING REGARDING THE LEASED PREMISES. 7.2 The taking of possession of the Leased Premises by Tenant after the Commencement Date shall be conclusive evidence that the Tenant accepts the Leased Premises in its then present condition "As Is, Where Is, With All Faults" and that the Leased Premises are in good and satisfactory condition at the time of the commencement of this Lease. ARTICLE 8 GENERAL PROVISIONS 8.1. Notices. Notices, consents, and demands required or permitted to be given hereunder must be in writing and be effective when received or refused, whether by hand delivery, nationally recognized overnight courier (with evidence of receipt or refusal), or U.S. Mail (return receipt requested), to the parties' respective addresses stated in Article 1 of this Lease, or to such other address as the parties designate by written notice to each other, and each party may identify additional parties to receive copies of same. 8.2. Waiver/Remedies. The failure of Landlord or Tenant to insist upon strict performance by the other of any of the provisions of this Lease or to exercise any option herein conferred will not be deemed as a waiver or relinquishment for the future of any such provision or option. Except as expressly provided otherwise herein, all rights and remedies provided for herein or otherwise existing at law or in equity are cumulative, and the exercise of one or more rights or remedies by either party shall not preclude or waive its right to the exercise of any or all the others. 8.3. Partial Invalidity. If any provision of this Lease or the application thereof to any person or circumstance is, at any time or to any extent, invalid or unenforceable, the remainder of this Lease will not be affected thereby, and each such provision will be valid and will be enforced to the fullest extent permitted by law. 8.4. Attorneys' Fees. In the case of any litigation among the Parties under this Lease, the prevailing party will be entitled to reimbursement for its reasonable costs, including reasonable attorneys' fees, incurred in any such dispute. 8.5. Entire Agreement. This Lease contains the entire and exclusive agreement between the parties relating to the Leased Premises and may not be modified except by written instrument signed by the party to be bound thereby. 8.6. Venue and Waiver of Trial by Jury. In the event of any litigation arising under this Lease, exclusive venue for any such litigation shall be Pueblo County, Colorado. All such litigation shall be filed in the District or County Court and each Party submits to the personal and subject matter jurisdiction of such court. Landlord and Tenant hereby waive a trial by jury in any action, proceeding, or counterclaim brought by either against the other, upon any matters whatsoever arising out of or in any way connected with this Lease, Tenant's use or occupancy of the Leased Premises, and/or any claim of injury or damage. 8.7. Relationship of the Parties. Neither Party shall be, or hold itself out as, agent of the other or as joint venturers or partners under this Agreement. 4 8.8. Drafting of Agreement. Each Party acknowledges that this Agreement was fully negotiated by the Parties and, therefore, no provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision. 8.9. Broker. Tenant and Landlord represent and warrant that they shall each pay their respective brokers or real estate agents, if any, in connection with this transaction. Landlord agrees to indemnify, defend and hold Tenant harmless from and against any and all claims, loss, liability, costs and expenses (including reasonable attorneys'fees), resulting from any claims that may be made against Tenant by any broker or other person claiming a commission, fee or other compensation by reason of the transaction contemplated hereby if the same shall arise by, through or on account of Landlord. Tenant agrees to indemnify, defend and hold Landlord harmless from and against any and all claims, loss, liability, costs and expenses (including reasonable attorneys' fees), resulting from any claims that may be made against Landlord by any broker or other person claiming a commission, fee or other compensation by reason of the transaction contemplated hereby if the same shall arise by, through or on account of Tenant. 8.10. No Third-Party Beneficiaries. The provisions of this Lease are for the exclusive benefit of the Parties hereto and their successors and permitted assigns, and no third party shall be a beneficiary, or have any rights by virtue of this Agreement. 8.11. Counterparts. This Lease may be executed in any number of counterparts, and each such counterpart shall be deemed for all purposes to be an original, and all such counterparts shall together constitute but one and the same original. 8.12. Survival. Whether or not specifically noted within any section or provision of this Lease, any provision of this Lease which must survive termination of this Lease in order to be effective will so survive such termination. IN WITNESS WHEREOF, this Lease is executed and delivered as of the date first above written. LANDLORD City of Pueblo, Colorado a Colorado municipal corporation • By: -7(caleet Name: Nicholas• ar, Mayor Date: g TENANT Black Hills Colorado Electric, LLC a Delaware limited liability company By: Name: John Vigil Title: _Senior Program Manager, Community Affairs_ Date: 01/05/2023 5 Property Map Exhibit ..:' . \ -I . .......„ ,,. ‘..i e. e . . . . . ...,.• ,s . . it A.4. .. ).-,. ,_. e 4. le • ..