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HomeMy WebLinkAbout5086NO. 725392RECORDED BOOK, 2166 PAGE 131 i6L COUNTY. COLORADO, AUG ���� AUG 1 11983 RESOLUTION NO. 5086 A RESOLUTION APPROVING A LEASE AGREEMENT AND CANCELLATION OF LEASE AGREEMENT BETWEEN THE CITY OF PUEBLO AND THE HUNTING HALL OF FAME FOUNDATION AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that: CV0MT l The Lease Agreement and Cancellation of Lease Agreement both dated December 2, 1982 between the City of Pueblo, a municipal corporation and the Hunting Hall of Fame Foundation, copies of which are attached hereto and incorporated herein having been approved by the City Attorney, are hereby approved. RRCTTnN 2- The President of the City Council is authorized and directed to execute the Lease Agreement and Cancellation of Lease Agreement for and on behalf of the City and the City Clerk is directed to attest same, affix the seal of the City thereto, and record an executed copy of the Cancellation of Lease Agreement in the office of the Pueblo County Clerk and Recorder. INTRODUCED: January 10 , 1983 By DOUGLAS L. RING Councilman APPROVED: ATTEST: Melvin H. Takaki, D.D.S. President of the City Council Lucy J. Costa City Clerk e BOOK 2166 PAGE W. CANCELLATION OF LEASE AGREEMENT The City of Pueblo, a municipal corporation, and The Hunting Hall of Fame Foundation, a nonprofit Section 501(C)(3) corporation hereby agree that the Lease Agreement dated December 19, 1978 between the parties hereto and concerning a tract of land in the SW1 /4 of Section 20 South, Township 63 West of the 6th P.M. situate at Pueblo Memorial Airport consisting of 24.1 acres, more or less, be and the same is hereby cancelled and terminated and each party hereto hereby releases and forever discharges the other party from any and all duties and obligations under said Lease Agreement. Dated this 2nd. day of'becember,.1982. ATT Ts Secreta y ATTEST: S re ryj i The Hunting Hall of Fame Foundation a nonprofit Section 501(C)(3) corporati n By Cha an and Chief Execu e O ficer City of Pueblo, a Municipal Corporation President of the City Council BOOK 2166 PAGE 1JJ I, Marian D. Mead, City Clerk of the City of Pueblo, Colorado, do hereby certify that the attached is a true and correct copy of Resolu- tion No. 5086, adopted by the Council of Pueblo January 10, 1983, and that I am entrusted with the safekeeping of the original. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Seal of the City of Pueblo, Colorado, this 2nd day of August, 1983. City Cle .•1 � F : i LEASE AGREEMENT -- J ItA 9 2 The Le se Agreement entered into this day of 1982 between the City of Pueblo, a Municipal corporation, herein called Lessor, and The Hunting Hall of Fame Foundation, a non - profit, Section 501(c)(3) corporation, herein called Lessee, W I T N E S S E T H: THAT IN CONSIDERATION of the payment of rent hereinafter provided and the keeping and performance of each of the covenants and agreements of the said Lessee hereinafter set forth, said Lessor has.and does hereby lease unto the said Lessee the premises situate at the Pueblo Memorial Airport, herein called Airport, in the County of Pueblo, State of Colorado, consisting of 25 ± 2 (23 to 25) acres of land located with access off the proposed William White Circle Drive leading from Highway No. 50 interchange to the Main entrance to the Airport, the location and configuration thereof to be determined by mutual agreement between Lessor and Lessee, herein called "leased premises." TO HAVE AND HOLD the leased premises unto the Lessee for a term of seventy (70) -years commencing at 12:00 noon January 1, 1983, and terminating at 12:00 noon December 31, 2053, at and for a rental as follows: a. For the first five years, $1.00 per month. b. For the next five years, $2,000 per year. c. For the next ten years and each ten year period there- after an annual rent equal to 1% of the then appraised fair market value of the land leased hereunder. On the first day of January, 1993 and the first day of January of each succeeding ten year period the leased land will be appraised by one or more qualified appraisers mutally selected by Lessor and Lessee and the annual rent during the following ten year period shall be 1% of the then appraised fair market value. All rent shall be paid to Lessor at Lessor's Department of Finance, City of Pueblo, Colorado in advance without notice. 1. RIGHTS AND PRIVILEGES OF LESSEE. A. Lessee shall continuously during the term hereof use the leased premises for a museum and hall for the development, preservation and exhibition of the history of American hunting and all related purposes. Provided that Lessee may cancel the Lease at any time prior to July 1, 1988 if Lessee decides it is not able to go forward with the construction of the Hunting Hall of Fame Building and Museum referred to in paragraph 7. Lessee's right to cancel for said reason will cease and terminate upon the breaking of ground for phase I of any building program of Lessee. Lessee shall not assign nor sublet the leased premises or any part thereof without the prior written approval of Lessor. B. Except as may be specifically authorized under para- graph 7(A) hereof, Lessee shall not without the prior written approval of the Lessor, which approval will not be unreasonably withheld, make or install any buildings, fences, signs or other improvements in or upon the leased premises. Costs of approved buildings and other improvements shall be borne solely by Lessee and all buildings and improvements constructed and installed upon the leased premises by Lessee shall upon expiration or termina- tion of this Lease or any extension thereof for any reason, become and remain the property of the Lessor. -2- C. Lessee, its employees and invitees shall have the right of ingress and egress between the Main entrance of the Airport as the same now exists or may hereafter be relocated and the leased premises over, upon and through such streets as from time to time shall be designated by Lessor. 2. RIGHTS AND PRIVILEGES OF LESSOR. A. Lessor shall have the right to enter upon the leased premises for the purpose of inspecting same at any reasonable hour. B. Lessor reserves the right to maintain, abandon, relocate, develop, improve, or repair the Airport, the landing area of the.Airport and all publicly owned facilities of the Airport but shall not be obligated to the Lessee for any failure to so maintain, repair, develop or improve the Airport or for the abandonment or relocation of the Airport and related facilities. C. There is hereby reserved to the Lessor, its successors, and assigns, for tho use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the premises hereby leased, together with the right to cause in said airspace such noise as may be inherent in the operation of aircraft, now known or Hereafter used, for navigation of or flight in the air, using such airspace or landing at, taking -off from, or operating on Pueblo Memorial Airport. 3. OBLIGATIONS OF LESSEE: A. Lessee shall, at its sole expense, maintain and keep the leased premises and any improvements presently existing or hereafter constructed thereon in good condition, appearance, state of repair and landscaped in accordance with Lessee's program of landscaping and conservation. mm B. The Lessee, shall, at its own expense, keep the premises neat, clean, safe and orderly at all times, free of waste, rubbish and debris, and shall provide a complete and proper arrange- ment for the sanitary handling and disposal of all trash, garbage and other refuse resulting from Lessee's occupancy of the leasehold. C. Lessee shall furnish at its own expense and promptly pay for all utilities used by Lessee and all taxes assessed against the leased premises or any improvements thereon prior to same becoming delinquent. D. Les .9ee agrees, except as may be otherwise provided in other contracts entered into between the Lessor and Lessee, not to engage in any business at the Airport other than that which is expressly authorized herein, it being understood and agreed that Lessee may operate a snack bar and sell all goods and merchandise upon the leased premises compatible with its museum, including, without way of limitation, art, books, pamphlets, souvenirs, and other such merchandise. E. The Lessee agrees to indemnify, defend, and save the Lessor, its agents, officers, representatives and employees, harmless from and against any and all penalties, liability or loss including costs and attorney fees resulting from claims or court action, whether civil, criminal or in equity, and arising directly or indirectly out of acts of the Lessee, its agents, employees, or servants in its operations on the leased premises or through any injury or casualty occurring on the leased premises. F. Lessee shall maintain, in such amounts and with insurance companies satisfactory to the Lessor, a standard form policy or policies of comprehensive general public liability insurance -4- with limits of not less than $400,000 for any one accident or for any one injury or death and $100,000 property damage. Such policies shall name the Lessor as an additional insured thereunder. Lessee shall furnish to Lessor a Certificate from the Insurance Carrier or Carriers showing such insurance to be in full force and effect during the term of this Agreement or extensions thereof. All said policies shall provide for a minimum of ten (10) days notice to the Lessor in the event of cancellation, non - renewal, or material change in the terms thereof. G. Lessee shall not hold or attempt to hold Lessor liabile for any injury, including loss of life, to any person, or for damage to any property while on the leased premises, irrespective of how such injury or damage may be caused or occasioned, except that this paragraph shall not apply to acts of Lessor, its agents or employees. H. In addition to the rent hereby reserved, Lessee agrees to pay a combined service fee for services and facilities now provided by Lessor at the Airport, namely: sewage disposal, street maintenance, fire protection and street lighting, of $362.00 per month in advance without notice on or before the first day of each month commencing on the first month of the sixth year after date hereof. The combined service fee may be modified, increased, or decreased at any time after ten years from date hereof by action of the City Council of Lessor; provided, that fees for said combined services shall be generally equal for all Lessees of Lessor receiving such services and be reasonable in relation to the actual costs of -5- such services then furnished by Airport; and, provided further, shall not be more frequent than hereof and such increases shall services fees for the prior yea 4. OBLIGATIONS OF LESSOR: Lessor at the Pueblo Municipal that any such increases in fees annually after 10 years from date not be greater than 5% of the r. A. Lessor shall maintain sewer mains as the same are presently shown on the Utilities Map of the Pueblo Memorial Airport on file in the office of the Director of Aviation of Pueblo. Lessee agrees that Lessor shall have a right at all times to enter upon the leased premises for the purpose of maintenance and repair of sewer and water mains located on the leased premises. Lessee shall construct and maintain at its own expense, free from leaks and unsanitary conditions, all water and sewer service lines other than as shown and designated as "mains" on said Utilities Map as may be necessary to its enjoyment and use of the leased premises. 5. GENERAL CONDITIONS: A. The terms and conditions of this Lease and Lessee's rights hereunder are hereby made subject to the provisions of Title III Chapter 1 of the 1971 Code of Ordinances of the City of Pueblo and as same may be subsequently amended. In the event of conflict between said Code of Ordinances and any provision herein, said Code shall control. B. The Lessee, as a part of the consideration hereof, does hereby covenant and agree, as a covenant running with the land, that in the event facilities are constructed, maintained, or otherwise operated on the leased premises for a purpose for which -6- a Department of Transportation program or activity is extended or for another purpose involving the provision of similar services or benefits, the Lessee shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non - discrimination in Federally- assisted programs of the Department of Transportation -- Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. The Lessee, as a part of the consideration hereof, does hereby, covenant and agree, as a covenant running with the land, that (1) no person on the grounds of race, color or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of the leased premises, (2) that in the construction of any improvements on, over, or under the leased premises and the furnishing of services thereon, no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that the Lessee shall use the leased premises in compliance with all other applicable requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non - discrimination in Federally- assisted programs of the Department of Transportation- - Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. -7- C. The Lessee agrees to comply with the notification and review requirements covered in Part 77 of the Federal Aviation Regulations before construction of any future structure or building upon the leased premises or before any modification or alteration of any present or future building or structure situated on the leased premises is commenced. Lessee agrees to restrict the height of structures, objects of natural growth and other obstructions on the leased premises to a height of not more than 4 feet above mean sea level, it being understood and agreed that the ground level of the leased premises is 4,645 feet, more or less, above mean.sea level. D. The Lessee by accepting this lease expressly agrees for itself, its successors and assigns that it will not use the leased premises in any manner which might interfere with the landing and taking -off of aircraft from Pueblo Memorial Airport or otherwise constitute an airport hazard. In the event the aforesaid covenant is breached, the Lessor reserves the right to enter upon the premises hereby leased and cause the abatement of such interference at the expense of the Lessee. E. The Lessee shall observe faithfully all general rules and regulations affecting use of the airport, established by the Lessor, including but not limited to rules affecting the operation of motor vehicles upon, to and from the Airport. F. The Lessee, and all officers, agents and employees of Lessee, while upon the leased premises hereby agree to be bound by and subject to all the Offense Ordinances of Pueblo, a Municipal -8- Corporation, whether acting in the course of Lessee's business or otherwise, to all intents and purposes the same as though the leased premises were located within the 6ity Limits of Lessor. G. The Lessee represents that it has inspected the Airport and all its premises and facilities and that it accepts the conditions of same and fully assumes the risk incident to the use thereof. The Lessor shall not be liable to the Lessee for any damages or injuries to the property or personnel of the Lessee which result from hidden, latent or other dangerous conditions on the Airport or leased premises. H. This Lease and all the provisions hereof are subject to all rights the United States Government now has or in the future may have or acquire, affecting the control, operation, regulation and re -entry upon and taking ove-r of the said Airport including the leased premises in the event of a National Emergency. If the United States Government exercises its right of re- entry, Lessee agrees to immediately quit and vacate the leased premises and each party hereto shall be released from all further obligations hereunder and neither party shall be thereafter liable to the other party for or on account of any damages, loss of business, or injury occasioned thereby. I. If the whole of the leased premises, or such portion thereof as will make the leased premises unsuitable for the purposes herein leased, is condemned for any public use or purpose by any legally constituted authority, or is taker, by the United States Government under its right of re -entry as described in paragraph H above, then in either of such events this lease shall cease from the time when possession is taken by such public authority and rental shall be accounted for between the Lessor and the Lessee as of the date of the surrender of possession. Such termination shall be without prejudice to the rights of either the Lessor or the Lessee to recover compensation from the public authority for any loss or damage caused by such condemna- tion or retaking. Any award or damages for the condemnation or retaking of the leased premises shall belong to the Lessor and any award or damages for the condemnation or retaking of the building, fixtures or equipment of the Lessee on the leased premises or relocation payments shall belong to the Lessee and those persons claiming under the Lessee. Neither the Lessor or the Lessee shall have any rights in or to any award made to the other by the public authority. 6. DEFAULT HOLDOVER AND NON- PERFORMANCE CONDITIONS. A. That if, after the expiration of the term of this Lease, Lessee shall remain in possession of the leased premises and continue to pay rent without any express written agreement as to such holding over, then Lessee agrees that all terms and covenants of this Lease shall remain in effect, except that Lessee shall be a tenant from month to month for a period of one year or until such time as an extension of this Lease or its termination thereof has been effected and expressed in a written agreement, whichever occurs first. B. That if the Lessee shall be declared insolvent or bankrupt, or if any assignment of the Lessee's property shall be made for the benefit of creditors or otherwise, or if Lessee's -10- leasehold interest herein shall be levied upon under execution, or seized by virtue of any writ of any Court of Law, or a Trustee in Bankruptcy or a Receiver appointed for the property of the Lessee, whether under the operation of the State or the Federal Statutes, then and in any such case, the Lessor may, at its option, with 30 days written notice, terminate this Lease and immediately retake possession of said premises without the same working any forfeiture of any accrued obligations of the Lessee hereunder. C. That if the rent above reserved, or any part thereof shall be in default, or in case of a breach by the Lessee of any of the covenants or agreements herein, the said Lessor may give notice of its intention to terminate specifying such breach or default, and if Lessee shall not remedy such breach or correct such default.within 60 days from the date of Lessor's notice, Lessor may declare this Lease terminated, and be entitled to the possession of said premises without any further notice or demand. If the Lessor shall become entitled to the possession of said premises either by the expiration of this Lease or by any violation of any term or provision as herein provided for, and the said Lessee shall. rofus— to surrender and deliver up thc pos: ;c: scion of said premises, after the service of said notice as aforesaid, then and in that event, the said Lessor may, without further notice or demand, enter into and upon said premises, or any part thereof, and take possession thereof and repossess them, and expel, remove, and put out of possession the Lessee, using such help, assistance and force in so doing as may be needful and proper, without prejudice to any remedy allowed by law, available in such cases. -11- D. That in case said premises are left vacant and any part of the rent herein reserved be due and unpaid, then the Lessor may for a period of five years thereafter, without in any way being obligated to do so, and without terminating this Lease, retake possession of said premises and rent the same for such rent, and upon such conditions as the Lessor may think best, making such changes and repairs as may be required, giving credit for the amount of rent so received less all expenses of such changes and repairs, and said Lessee shall be liable for the balance of the rent herein reserved for a maximum period of five years. E. Lessee agrees to pay to Lessor all costs, including a reasonable attorney fee, incurred by Lessor in recovering any rent or other money due and unpaid under the terms of this Lease or to recover possession of the leased premises after termination hereof. - 7. SPECIAL CONDITIONS. A. Lessee shall at its sole cost and expense on or before ten years from the date of this Lease construct a Hunting Hall of Fame building and museum upon the leased premises. The Hunting Mall of Fame building and museum shall consist of at least 50,000 square feet of building space and its construction costs shall be approximately $3,000,000.00. Such building and museum shall be constructed in compliance with applicable building and construction codes of the Lessor in effect at the time of construction and shall be inspected and approved by Lessors inspectors prior to occupancy thereof. All buildings constructed by Lessee shall be maintained in good condition at all times by -12- Lessee's, at its sole cost and expense. The nature and lo- cation upon the leased premises of the Hunting Hall of Fame building and museum, surrounding improvements, parking area, and roads shall be reviewed and approved by the City Council of Lessor prior to construction and installation, thereof. In the event Lessee shall not have commenced construction of the Hunting Iiall of Fame building and museum on or before ten y-.ars from Dec. 19, 1978, this Lease Agreement shall terminate and Lessor shall be entitled to possession thereof. Neither the requirements of this paragraph or any other provision of this Lease shall be construed to be the consent of or the authorization by the Lessor to subordinate its right, title and interest in the leased premises to any lien or encumbrance upon Lessee's interest in this Lease Agreement or any improvement constructed by fcssee thereon. B. Lessee shall at Lessee's cost and expense keep-all improvements on the leased premises insured for fire and extended coverage in such amounts and with such insurance companies authorized to do business in Colorado as Lessor shall a.pprovu. Lessee agrees that all proceeds and monies received from said policies of insurance for any loss or damage covered thereby shall be used to repair and replace such damage or loss. C. Lessor does hereby consent to the Leasue mortyaging or otherwise encumbering Lessee's interest in this Lease arid Lessee's leasehold estate hereby created, provided, that the leased premises shall not become subordinate to any such mortgage or encumbrancc. li; the event Lessee mortyayc_�s or encumbers Lessee's interest in this Lease or Lessee's leasehold estate -13- hereby created, Lessor agrees that upon default by Lessee under the terms of the mortgage or other instrument of encumbrance, the beneficiary or the holder of the note secured thereby, herein called Mortgagee, may cause said mortgage to be foreclosed in any lawful way and enforce the mortgage and acquire title to the leasehold estate and any interest of the Lessee herein. The Mortgagee may assign Lessee's rights herein to a tenant pending foreclosure and acquisition of the leasehold estate and Lessee's interest herein. Mortgagee may sell and assign the leasehold estate and Lessee's interest herein after foreclosure to a transferee approved in writing by Lessor, which approval shall not be unreasonably withheld. The Mortgagee pending foreclosure and acquisition of Lessee's interest herein and until transfer to an approved transferee shall be liable to Perform all obliga- -tions of the Lessee to be performed under this Lease. Any ap- proved transferee of the Mortgagee shall be liable during the original term of this Lease, or any extension thereof, to perform all obligations of the Lessee to be performed hereunder unless excused therefrom by Lessor. In the event Lessee shall mortgage or otherwise encumber the leasehold estate and Lessee's interest herein and the Mortgage(( shall so notify Lessor in writing, Lessor agrees that it will not terminate this Lease because of the bankruptcy or insolvency of the Lessee, or because the Lessee shall suffer this Lease or any estate or interest thereunder to be taken under writ of execution, or because the Lessee shall make an assignment for -14- the benefit of creditors, or because of any other failure on the part of the Lessee to observe or perform any of the covenants contained herein, if the Mortgagee shall, within thirty (30) days after receipt of written notice from the Lessor of its intention to terminate the lease for any such cause, cure any such default and undertake in writing to perform all of the covenants herein on the part of the Lessee to be performed until a transfer after foreclosure by the beneficiary to a transferee approved by Lessor. D. If an environmental impact study is required, it shall be done through the Lessor and its agencies at no cost to the Lessee, except that Lessee will cooperate fully in providing required data relating to the use and development of the leased premises. If the results of the environmental impact study do not permit the construction of the proposed facilities either party shall have the riqht and option to cancel this Luse immediately- without recourse or damage to the other party. 8. MISCELLANEOUS PROVISIONS. A. No assent by Lessor either expressed or implied to any breach of any provision of this Lease shall constitute a waiver of any succeeding or other breach. B. All covenants and agreements in this Lease contained shall be binding upon and inure to the benefit of the Lessor and Lessee and their successors and assigns. C. This Lease and any amendments are subject to prior written approval of the Federal Aviation Administration. D. If, at any future- time, it becomes possible and desirable for the Lessor to sell the leased premises outright, -15- the Lessee shall, for a period of 180 days after receipt of written notice of Lessor's desire and intention to sell, have the right to purchase the leased premises at a cash price equal to its then appraised value subject to prior approval of the Federal Aviation Administration or its successor Agency if such approval is then required. E. If this Lease Agreement or any memorandum thereof is recorded in the offices of the Pueblo County Clerk and Recorder, without first obtaining the specific written consent of Lessor to so record, this Lease Agreement and all rights of Lessee hereunder shall automatically terminate and expire. F. The Lease Agreement between Lessor and Lessee dated December 19, 1978 relating to 24.1 acres of land at the Airport is hereby terminated and each party is released from all duties and obligations thereunder. Executed at Pueblo, Colorado the day and year first above written. ATTEST: By 1� P esident of the City Council Ci*CAfer) PUEBLO, A Municipal Corporation THE HUNTING HALL OF FAME FOUNDATION A Non-Profit, Section 501(c)(3) Corpora on �--� ATT T: By . Chi an and Chidf Executiv Of ficer Secretary Trustee Trustee -16-