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HomeMy WebLinkAbout09796RESOLUTION NO. 9796 A RESOLUTION CONSENTING TO THE LEASE AGREEMENT DATED AS OF NOVEMBER 1, 2002 BETWEEN PUEBLO DEVELOPMENT FOUNDATION AND MINI MART, INC. RELATING TO PROPERTY LOCATED IN THE PUEBLO MEMORIAL AIRPORT INDUSTRIAL PARK BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The City Council does hereby consent to the Lease Agreement dated as of November 1, 2002 between Pueblo Development Foundation and Mini Mart, Inc. relating to the property commonly known as 442 Keeler Parkway, Pueblo, Colorado, located within the Pueblo Memorial Airport Industrial Park. SECTION 2. The Consent To Lease, a copy of which is attached hereto and incorporated herein, having been approved as to form by the City Attorney, is hereby approved. The President of the City Council is authorized to execute the Consent To Lease in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. INTRODUCED February 24, 2003 BY Al Gurule Councilperson APPROVED: President of City Council ATTEST: I D o EEDD Background Paper for Proposed RESOLUTION AGENDA ITEM # DATE: February 24, 2003 DEPARTMENT: Law Department TITLE A RESOLUTION CONSENTING TO THE LEASE AGREEMENT DATED AS OF NOVEMBER 1, 2002 BETWEEN PUEBLO DEVELOPMENT FOUNDATION AND MINI MART, INC. RELATING TO PROPERTY LOCATED IN THE PUEBLO MEMORIAL AIRPORT INDUSTRIAL PARK ISSUE Should City Council consent to the Lease between Pueblo Development Foundation and Mini Mart, Inc.? RECOMMENDATION Approve the Resolution consenting to the Lease. BACKGROUND The City in 1979 assigned to Pueblo Development Foundation ( "PDF ") the City's interest in a ground lease for the property described in the Lease Agreement between PDF and Mini Mart, Inc. PDF assumed and paid an approximately $150,000 mortgage against the property and leased the property to Loan N' Jug, Inc. which lease expired November 1, 2002. City owns the property subject to the ground lease which terminates December 1, 2010. The ground lease and assignment to PDF requires consent of the City in order for PDF to lease the property to Mini Mart, Inc. for a term expiring on the same date the ground lease terminates, i.e. December 1, 2010. After termination of the ground lease, City will not only own the land but all buildings and improvements located thereon. FINANCIAL IMPACT None LEASE AGREEMENT THIS LEASE AGREEMENT entered into as of November 1, 2002, between Pueblo Development Foundation, a Colorado nonprofit corporation, P. 0. Box 1663, Pueblo, Colorado, 81002, (herein "Landlord ") and Mini Mart, Inc., a Wyoming corporation, 442 Keeler Parkway, Pueblo, Colorado, 81001, (herein "Tenant "). 1. Premises. Landlord leases to Tenant and Tenant leases from Landlord subject to and upon the terms and provisions of this Lease, approximately 1.814 acres of land and office building located thereon known as 442 Keeler Parkway, Pueblo Memorial Airport Industrial Park, Pueblo, Colorado and legally described in the City Lease referenced in Section 5 hereof (the "premises "). 2. Use. The premises are to be used and occupied by Tenant solely for commercial office purposes. Tenant will in no case use the premises for any purposes prohibited by local zoning ordinances or by other local ordinances or state or federal laws. Tenant shall not use the premises for any purpose which would or might cause the lapse of existing fire and hazard insurance on the premises or which would necessitate the purchase of additional insurance or the payment of additional premiums on existing insurance by the Landlord. Tenant shall use and occupy the premises in compliance with all applicable laws and regulations, including, without limitation, all environmental laws and regulations. 3. Rent. Tenant agrees to pay to Landlord, without any right of offset or reduction whatsoever, rent, for the full term of $320,423.98 payable in monthly installments of $3,303.34, in advance without notice or demand, on or before the 1 st day of each calendar month during said term at such address as may be specified from time to time in writing by Landlord, with the first month's installment to be paid upon execution hereof. All past due installments shall bear interest at the rate of 12% per annum until paid. All other sums and charges required to be paid to Landlord by Tenant under this Lease shall be deemed to be rent and shall be payable in the manner provided and recoverable as rent, and Landlord shall have all rights specified in this Lease against Tenant for default in payment thereof as in the case of arrears of rent. 4. Term. The term of this Lease shall be eight (8) years and one (1) month commencing on November 1, 2002, and ending December 1, 2010, both dates inclusive, unless sooner terminated as herein provided. 5. City Lease. Tenant acknowledges that this Lease is a sublease and Landlord is the assignee and Lessee under that certain Lease Agreement dated November 9, 1970 between the City of Pueblo and Craddock Development Company recorded April 9, 1971 in Book 1689 at Page 267 of the Pueblo County records (the "City Lease ") and agrees that this Lease is subject to the terms and conditions of the City Lease. Tenant shall not be obligated to perform any of the Landlord's obligations under the City Lease but shall, at no cost or expense to Tenant, cooperate with Landlord in the performance thereof. Tenant shall not do or omit to do anything which will breach any of the terms of the City Lease. If the City Lease is tenninated, this Lease shall terminate simultaneously. 6. Taxes. Tenant shall pay, before delinquency, any and all taxes (including property taxes which may be assessed against Tenant under Section 39 -3- 107(4) C.R.S.), assessments, licenses, sales and use. taxes, and other charges imposed, levied or assessed and which become payable during the term hereof upon the Premises or Tenant's operations, occupancy or conduct of business upon or from the Premises or upon Tenant's equipment, furniture, fixtures, and other personal property located on the Premises, whether levied or assessed against Landlord or Tenant. Except for taxes imposed upon the Tenant pursuant to Section 39- 3- 107(4) C.R.S., real property taxes on the premises shall be paid by Tenant after presentation to Tenant by Landlord of statement(s) from the taxing jurisdiction(s) in which said property is located. Tenant, however, will pay only the lowest discounted amount and will not be required to pay any penalty, interest, or cost accruing by reason of Landlord's failure to secure tax statement(s) from the taxing authority(ies). Taxes for the last year of this Lease, if any, shall be prorated to the day the lease term terminates. 7. Utilities. Tenant shall promptly pay the cost of any utility service which is used or consumed on the Premises whether or not such utility is separately metered. Landlord shall not be obligated to furnish or provide to Tenant any utility, facility or service of any kind. 8. Maintenance and Repairs. Landlord shall, at its expense, keep and maintain the structural portions of the premises in good condition and repair, provided that structural repairs caused by the negligent acts or omissions of Tenant, its agents, employees, contractors or invitees shall be the responsibility of Tenant. Tenant shall, at its expense, keep and maintain in good and clean condition and repair all other portions of the premises, including, but not limited to, interior walls, exterior walls, except structural defects, roof, parking area and sidewalk surfaces, landscaping, sewer and water line connections to the premises, and plumbing, heating, electrical, and air conditioning equipment and systems. Tenant shall, at its expense, also repair or replace with glass of equal quality any broken or cracked plate or other glass in doors, windows, and elsewhere on the premises. Tenant agrees to keep and maintain the parking area and sidewalks adjacent to the premises in a clean and safe condition, free of snow, ice and debris. Except as herein provided for structural portions of the premises, Landlord shall not be obligated to maintain, repair or make improvements to the premises or any portion thereof. If Tenant fails to keep and maintain the premises as required herein, Landlord, at its option, may cause such repairs and maintenance to be performed at the Tenant's costs and expense and Tenant shall immediately pay or reimburse Landlord for the cost of such repairs and maintenance. 9. Quiet Enjoyment. Tenant shall, and may peacefully have, hold and enjoy the Premises, subject to the other terms hereof, provided that Tenant pays the rental herein recited and performs all of Tenant's covenants and agreements herein contained. 10. Alterations. Tenant shall not make any alterations involving structural changes without first securing Landlord's written consent to the same. Other alterations or additions, such as to non - weight bearing partitions, may be made by Tenant in a good workmanlike manner without any cost to -2- Landlord. Tenant shall not permit or allow any lien to be filed or recorded against the Premises or the Building or Landlord's interest therein and Tenant shall fully cooperate with Landlord in obtaining the protection afforded Landlord under Section 38 -22 -105, C.R.S. All additions, alterations and improvements made in or to the Premises by either Landlord or Tenant shall, at the option of the Landlord, become the property of Landlord and be surrendered with the Premises at the termination of this Lease or be removed by Tenant at its expense and the Premises restored to its original condition. Tenant shall have the right to remove or replace its removable trade fixtures, provided Tenant repairs any damage caused by such removal. The failure of Tenant to remove its fixtures or any of its property at the termination of this Lease shall be deemed abandonment of such property at the option of Landlord. 11. Right of Entry. Landlord reserves and shall at all reasonable times have the right to enter the Premises to inspect the same, to show the Premises, and, without any obligation to do so, alter, improve, or repair the Premises without abatement of rent, and may for that purpose erect, use and maintain scaffolding, pipes, conduits and other necessary structures in and through the Premises where required by the character of the work to be performed, provided entrance to the Premises shall not be denied Tenant, and further provided that the business of Tenant shall not be interfered with unreasonably. Tenant hereby waives any claim for damages for any injury or inconvenience to or interference with Tenant's business, any loss of occupancy or quiet enjoyment of the Premises, and any other loss occasioned thereby. 12. Hold Harmless. Landlord shall not be liable to Tenant, or to Tenant's agents, employees, customers or invitees, and Tenant therefore waives any such claims against Landlord for any injury or damage, including personal injury, to any person or property in or about the Premises by or from any cause whatsoever including, without limitation, defects in the Premises. Tenant shall indemnify and hold Landlord harmless from and defend Landlord against any and all claims or liability for (a) any injury or damage to any person or property whatsoever, including personal injury occurring in, on or about the Premises and adjacent parking area and sidewalks, or any part thereof, unless caused by the sole acts or omissions of Landlord or its agent or employees, or (b) any claims, penalties, remediation, damages or expenses caused by or resulting from the presence of any hazardous or regulated substance located in, on, or under the Premises or any part thereof. 13. Liability Insurance. Tenant shall, at its expense, maintain during the term of this Lease a policy or policies of commercial general liability insurance, including contractual coverage, with the premiums thereon fully paid on or before the due date issued by and binding upon either an insurance company approved by Landlord, or through a program of self - insurance. Such insurance shall afford protection of not less than $1,000,000.00 single limit bodily injury for any number of persons injured or killed in one occurrence, and $100,000 property damage. The policy of insurance or program of self - insurance shall name Landlord as an additional named insured. All such policies or programs shall contain a clause or endorsement to the effect that the same may not be terminated or materially amended during the term of this Lease except after twenty days written notice thereof to Landlord. -3- In lieu of providing a certificate of liability insurance and casualty insurance, Landlord will accept accessing Tenant's insurance web site on the internet located at: www.marshweb.com /clients /0984 /moi.nsf to obtain a Memorandum of Insurance. 14. Casualty Insurance. Tenant shall maintain fire and extended coverage insurance on the Premises. Said insurance shall be maintained with an insurance company authorized to do business in Colorado, in amounts desired by Landlord and at the expense of Tenant, and payments for losses thereunder shall be made solely to Landlord. Tenant acknowledges that Landlord carries no insurance on the personal property of Tenant and that Tenant shall obtain and pay for insurance on its personal property as it deems necessary and prudent. 15. Waiver of Subrogation. Whenever (i) any loss, cost, damage or expense resulting from any peril or hazard described in Section 14 is incurred by any party to this Lease in connection with the Premises, or any part or contents thereof, and (ii) such parry is then covered in whole or in part by insurance with respect to such loss, cost, damage or expense, then the party so insured hereby releases the other party, its officers, agents and employees from any liability it may have on account of such loss, cost, damage or expense to the extent of any amount recovered by reason of such insurance and waives any right of subrogation which might otherwise exist in or accrue to any person on account thereof, provided that such release of liability and waiver of the right of subrogation shall not be operative in any case where the effect thereof is to invalidate such insurance coverage (or increase the cost thereof, unless the other party reimburses the insured for any cost increase). If either Landlord or Tenant fails to maintain in force any insurance required by this Lease to be carried by it, then for purposes of this waiver of subrogation the party failing to carry such insurance shall be deemed to have been fully insured and to have recovered the entire amount of its loss. If the release of either landlord or Tenant as set forth herein shall contravene any law with respect to exculpatory agreements, the liability of the party in question shall be deemed not released but shall be secondary to that of the other party's insurer. 16. Fire and Other Damage. If the Premises or the building located thereon is damaged by fire or other hazard, Tenant shall immediately notify Landlord in writing. Landlord may cause the damage to be repaired out of the net proceeds of the casualty insurance, and the rent will be abated for such period of time as the premises may remain untenantable; but if the building is destroyed or so damaged that Landlord shall decide that it is inadvisable to repair it, (which decision Landlord may make in its sole discretion) this Lease shall cease and terminate and all net proceeds of the casualty insurance shall be retained by Landlord, and the rent shall be adjusted to the date when such fire or other damage occurred. Within sixty (60) days after the occurrence of such fire or damage, Landlord shall notify Tenant in writing whether it intends to rebuild or abandon the Premises and, if it intends to rebuild, the completion date of the repair or rebuild of the Premises. If the Landlord elects not to rebuild and so notifies Tenant, the Tenant shall be released from the terms of the Lease and the rent and any other amounts due hereunder shall be prorated to the date of loss. If the Landlord elects to rebuild but the estimated time for rebuilding is more than 120 days, Tenant may, at its option, terminate within ten days after receipt of the notice of Landlord's intent to rebuild the premises. In the absence of written notice as required under this paragraph, actual notice, if any, is shall be deemed adequate. 17. Public Taking. If the building in which the premises are located is taken by eminent domain or is transferred to a public agency in lieu of an eminent domain proceedings, this Lease shall terminate and neither parry shall have any further obligation to the other hereunder, except that the Tenant must surrender the premises in accordance with the condition requirements imposed hereby unless such requirements are specifically waived by Landlord. Tenant waives and surrenders to Landlord any interest which Tenant might have in the proceeds of any condemnation or transfer in lieu of condemnation, except Tenant's right, if any, to receive compensation or damages for its removable trade fixtures and personal property. 18. Breach of Lease. If Tenant shall fail to pay to Landlord any sum to be paid by Tenant to Landlord under this Lease, and such default shall continue for ten days after it is due, or if Tenant has failed to cure any other breach of a covenant of this Lease after twenty days' written notice of such breach, or if this Lease shall, by act of Tenant or by operation of law or otherwise, pass to any party other than Tenant, except with the prior written consent of Landlord as provided herein, or if Tenant be declared insolvent according to law, or if any assignment of Tenant's property shall be made for the benefit of creditors, or if a receiver or trustee is appointed for Tenant or Tenant's property, or if Tenant shall abandon or vacate the premises, except where permitted hereunder, then landlord may treat the occurrence of any one or more of the foregoing events as a breach of this Lease. 19. Remedies Upon Breach. In the event of a breach of this Lease by Tenant, Landlord may have any one or more of the following described remedies, in addition to all other rights and remedies provided at law or in equity: (a) Landlord may terminate this Lease and forthwith repossess the Premises and be entitled to recover as damages a sum of money equal to the total of (i) the cost of recovering the Premises, including Landlord's reasonable attorney's fees; (ii) the unpaid rent earned at the time of termination, plus interest thereon at the rate of 12% per annum from the due date; (iii) the balance of the rent for the remainder of the term less the fair market rental value of the Premises for said period; (iv) damages for the wrongful withholding of the Premises by Tenant; and (v) any other sum of money and damages owed by Tenant to Landlord. (b) Landlord may retake possession of the Premises and shall have the right, but not the obligation, without being deemed to have accepted a surrender thereof, and without terminating this Lease, to relet same for the remainder of the term provided for herein; and if the rent received through such reletting does not at least equal the rent provided for herein, Tenant shall pay and satisfy any deficiency between the amount of the rent so provided for and that received through reletting; and, in addition thereto, Tenant shall pay all reasonable expenses incurred by Landlord in connection with any such reletting. In the event of a default or breach of this Lease by Landlord, Tenant shall be entitled to seek all legal and/or equitable remedies including injunctive relief. -5- 20. Non - Waiver. Failure of Landlord to declare any breach or default immediately upon occurrence thereof, or delay in taking any action in connection with therewith, or accepting partial or full payment of rent with knowledge of such breach or default, shall not waive such breach or default, but Landlord shall have the right to declare any such breach or default at any time and take such action as might be lawful or authorized hereunder, either at law or in equity. 21. Holding Over. If after the expiration of the term of this Lease, Tenant shall remain in possession of the Premises, or any part thereof, and continue to pay rent, without any express agreement as to such holding, then such holding over shall be deemed and taken to be a periodic tenancy from month to month, subject to all the terms and conditions of this Lease on the part of Tenant to be observed and performed and at a rent equal to the last month's rent payable hereunder in advance on the first day of each calendar month. Such holding over may be terminated by Landlord or Tenant upon ten days' notice. In the event that Tenant fails to surrender the Premises upon termination or expiration of this Lease or such month to month tenancy, then Tenant shall be liable to Landlord for loss or liability resulting from any delay of Tenant in not surrendering the Premises, including, but not limited to, any amounts required to be paid third parties who were to have occupied the Premises and any reasonable attorneys fees related thereto. 22. Assignment or Sublease. Tenant shall, with the consent of Landlord, which consent shall not be unreasonably or arbitrarily withheld, have the right to sublease the whole or any part of the Premises, provided that any assignment or sublease shall be subj ect to all of the terms and conditions of this Lease and that Tenant shall remain primarily liable for the payment of the rent and the performance of the terms and conditions of this Lease. 23. Signs. Tenant shall not, without Landlord's prior written consent, install, affix or use any signs or other advertising or identifying media on the exterior of the Premises, or which is visible from the exterior of the Premises. Landlord hereby consents to all signs, advertising and other identifying media located on the exterior of the premises as of the date of the execution of this Lease by Tenant. 24. Recording. This Lease Agreement shall not be filed for record by either party hereto. Land- lord and Tenant shall execute a short form lease, stating the parties, the description of the leased premises, the term of the lease and such other provisions as are mutually agreed upon by the Landlord and the Tenant. The short form lease may be filed for record by either party after execution of this Lease Agreement. If Landlord requests, the parties shall prepare and sign a memorandum of this Lease on such form as may be prescribed by the Colorado Department of Revenue, or any other appropriate form, which memorandum may, at Landlord's option, be filed with said Department so that Landlord may avail itself of the provision of statutes such as Section 39- 22- 604(7)(c) Colorado Revised Statutes. 25. Assignment by Landlord. Landlord shall have the right to transfer and assign, in whole or Eel in part, all its right and obligations hereunder and in the Premises, and in such event and upon Landlord's transferee assuming Landlord's obligations hereunder, no fiu liability or obligation shall thereafter accrue against Landlord hereunder. 26. Subordination to Mortgage. This Lease is hereby made subordinate to any mortgage or deed of trust on the real property on which the Premises is located. This subordination clause includes future mortgages and deeds of trust and shall be self - operative, with no further consent of Tenant required to effect a subordination to a particular mortgage or deed of trust. However, the purpose of this paragraph is only to give a mortgage lender a first lien interest in real property and not to cause the eviction of Tenant from the premises because of the sale, refinancing, or other transfer of the property. Landlord shall have no right to remove Tenant from the Premises or to otherwise terminate this Lease simply because the property is sold, refinanced, or otherwise transferred and a new deed of trust, to which this Lease would also be subordinate, is put in place. 27. Estoppel Certificate. At Landlord's request Tenant will execute either an estoppel certificate addressed to Landlord's mortgagee or any prospective successor of Landlord, or a three -party agreement among Landlord, Tenant and said mortgagee or Successor, certifying to such facts (if true) regarding the status and terms of this Lease as may be requested, and agreeing to such notice provisions and other matters as such mortgagee or successor may reasonably require in connection with Landlord's financing or the conveyance of the Building. 28. Notices. All notices and demands which may be or are required to be given by either party to the other hereunder shall be in writing, and delivered in person or sent by United States certified mail, postage prepaid. Notices and demands to Tenant shall be addressed to it at the address indicated in page 1, or to such other place as the Tenant may from time to time designate in a written notice to the Landlord. Notices and demands to the Landlord shall be addressed to it at the address indicated in page 1, or to such other firm or to such other place as Landlord may from time to time designate in a written notice to the Tenant. All notices shall be deemed given on the date of such delivery or mailing. 29. Attorneys Fees. In the event either party is in default in the performance of any of the terms, covenants, agreements or conditions contained in this Lease and the other party places the enforcement of this Lease, or any part thereof, in the hands of an attorney, or files suit upon the same, the prevailing party shall receive from the other party a reasonable amount incurred for attorneys' fees. Venue for any action affecting or arising out of this Lease shall be Pueblo County, Colorado. 30. Successors and Assigns. When executed by both parties, this Lease Agreement shall be a binding agreement for the lease of real property and improvements and shall be binding and effective upon the parties, their respective successors and assigns. 31. Brokerage and Commissions. Landlord and Tenant each mutually represent to the other that no real estate broker or agent has been involved in their relationship or has negotiated this Lease or -7- is in any way entitled to any commission in connection with this lease. 32. Landlord Representations. Landlord hereby represents and warrants that it has the full authority to enter into this Lease agreement and that there is, at the time of the execution of this agreement no breach, anticipatory or otherwise, by either party of the City Lease referenced herein at Section 5. 33. Condition at Possession and at Surrender. Tenant acknowledges that it has for the past twenty years been in possession of the leased premises. Tenant is fully familiar with the present condition of the premises and acknowledges and agrees that the premises are in a good and satisfactory condition as of the date of this Lease Agreement and that the leased premises are being leased "AS IS, WITH ALL ITS FAULTS." Tenant agrees to Surrender the leased Premises on the last day of the Lease term broom -clean and in as good condition as it was at possession, ordinary wear and tear excepted. 34. Option to Extend Term. If not in default hereunder, Tenant shall have the option to extend the original term of the Lease for a period of five (5) years from December 1, 2010 to December 1, 2015 upon the same terms and condition except (1) no further option to renew the term of this Lease shall be granted and (ii) monthly rent for the full five (5) year extended renewal term shall be equal to one hundred ten percent (110 %) of the monthly rent for the original term. Written notice of Tenant's exercise of the option to renew hereby granted shall be given to Landlord at least six (6) months prior to the end of the original term. Failure of Tenant to timely give notice of exercise of the option, shall result in the option being terminated and canceled. 35. Miscellaneous. (a) All words shall be given their ordinary meanings unless the context clearly otherwise requires. The masculine includes the feminine and the neuter includes the masculine, feminine and neuter. The Singular includes the plural. (b) The rights and remedies of the parties hereunder, and any other rights and remedies provided by law shall be construed as cumulative and no one of them is exclusive of any other right or remedy. Such rights and remedies shall further be continuing rights, none of which shall be exhausted by being exercised on one or more occasions. Landlord shall be entitled to an injunction or the appointment of a receiver for Tenant in proper cases upon notice to Tenant as provided by law to enforce any part or parts of this Lease or to prevent or stop any violation, breach or default on the part of Tenant. (c) Whenever in this Lease Landlord reserves or is given the right and power to give or withhold its consent to any action on the part of Tenant, such consent shall not be unreasonably or arbitrarily denied and such right and power shall not be exhausted by its exercise on one or more occasions, but shall be a continuing right and power for the full term of this Lease. ME (d) This written agreement sets forth the complete agreement between the parties. There are no other representations or provisions of this agreement, either oral or written. No amendment or modification of this Lease shall be valid or binding, unless expressed in a writing executed by the parties hereto. (e) If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws effective during the term of this Lease, then and in that event, it is the intention of the parties hereto that the remainder of this Lease shall not be affected thereby. (f) This Lease is made in and shall be governed by and interpreted in accordance with the laws of the State of Colorado. IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date aforesaid. LANDLORD: PUEBLO DEVELOPMENT FOUNDATION A Ai W TENANT: MINI MART, INC. By President STATE OF COLORADO ) ss. COUNTY OF PUEBLO ) The foregoing instrument was acknowledged before me this day of 2003, by Joseph A. Fortino, as President of Pueblo Development Foundation, a olorado nonprofit corporation. Witness my hand and official seal. M commission expires: 0 STATE OF COLORADO ) ss. COUNTY OF PUEBLO ) Notary Public The foregoing instrument was acknowledged before me this day of 2003, by as President -9- of Mini Mart, Inc., a Wyoming corporation. Witness my hand and official seal. My-co3 i� expires: Notary Public 5112 1419H ki de10t4i 1�: -y21 Pursuant to that certain Lease Agreement dated November 9, 1970, by and between the City of Pueblo, a Municipal Corporation, as Lessor, and Craddock Development Company, as Lessee, as amended by written agreement dated December 1, 1970, and as thereafter assigned to Pueblo Development Foundation, as Lessee by Resolution of the City of Pueblo, Colorado, No. 4486, the undersigned City of Pueblo hereby consents to the foregoing Lease Agreement between Pueblo Development Foundation, and Loaf `N Jug, Inc., without, however, releasing or discharging Pueblo Development Foundation from any of its obligations under the November 9,1970 Lease Agreement. IN WITNESS WHEREOF, the City of Pueblo has executed this Consent to Sublease this 24th day of February 7 2003. PUEBLO, A MUNICIPAL CO 7 TION By President of the City Council [SEAL] ATTEST: Ci Clerk see