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HomeMy WebLinkAbout6185R RESOLUTION NO. 6185 A RESOLUTION CONSENTING TO AN ASSIGNMENT OF A LEASE CONCERNING THE MINNEQUA PARK CONCESSION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PUEBLO, COLORADO, that: SECTION 1 The City does hereby consent to the assignment of the Lease Agreement dated February 28, 1977 relating to the Minnequa Park concession by the lessee thereunder to R.V. Ltd., a Colorado corporation subject to and conditioned upon (a) The Lease Agreement being modified to include two five (5) year renewal terms upon the same conditions except annual percentage rent which shall be increased to 6% during each renewal term and such other modifications thereto as the City Manager shall approve. (b) The execution and delivery to the City of instruments acceptable to the City Attorney (i) cancelling and releasing Dean Van Zandt dba VanSea, Inc. interest in the Lease Agreement, and (ii) assigning the Lease Agreement to and acceptance thereof by R.V. Ltd. (c) No other or further assignment of the Lease Agreement or subletting the leased premises or any part thereof or the transfer of a majority interest in the shares of stock of R.V. Ltd. shall be made without the prior written consent of the City of Pueblo. Any such assignment, sublease or transfer made without the written consent of the City shall be unenforceable against the City and constitute grounds to terminate the Lease Agreement. ATTEST: INTRODUCED: April 25, 1988 By MIKE SALARDINO Councilman APPROVED: ty Clerk Isident of' City Council -2- EXHIBIT B ADDENDUM NO. 1 THIS ADDENDUM NO. 1 entered into this /4 day of 41 , 1988 between Pueblo, a Municipal Corporation, l City Hall lace, Pueblo, Colorado, 81003 (herein "City ") and R. V. Ltd., a Colorado Corporation, 74 Verdosa Drive, Pueblo, Colorado, 81005 (herein "Company "), WITNESSETH: WHEREAS, the City and Lonye J. Hearn entered into a Conces- sion Agreement dated February 28, 1977 (herein "Concession Agree- ment"), and WHEREAS, Lonye J. Hearn assigned all of his right, title and interest in and to the Concession Agreement to Company, and WHEREAS, Company is desirous of amending and City is willing to amend certain provisions of the Concession Agreement; NOW, THEREFORE, in consideration of the foregoing and mutual promises herein contained, City and Company agree as follows: 1. Company does hereby assume and agree to make all pay- ments and perform all covenants and provisions on the part of the concessionaire to be made and performed under the Concession Agreement the same as if Company had originally executed the Concession Agreement as the concessionaire thereunder. 2. Paragraph 3 of the Concession Agreement is hereby amend- ed to read: This Agreement shall be for a term of fifteen (15) years and shall become effective at 12:00. noon on March 1, 1977 and shall expire at 12:00 noon.on March 1, 1992. 3. Paragraph 4 of the Concession Agreement is amended by the addition of the following: The transfer of a majority interest in the shares of stock of the concessionaire shall constitute and be deemed an assign- ment for purposes of this paragraph. Any such assignment, sublease or transfer without the prior written consent of City shall be unenforceable against the City and constitute ground to terminate this Agreement. 4. The address set forth in the second to last sentence of paragraph 5 of the Concession Agreement is changed to 74 Verdosa Drive, Pueblo, Colorado, 81005. 5. Subparagraph D of paragraph 6 of the Concession Agree- ment is amended to read: . The concessionaire will be required to be open for the accommodation of the public at least six (6) hours, weather permitting, each day during the months of May through Septem- ber, inclusive, of each year., and for such additional periods within the year as approved by the Director. of Parks. 6. Subparagraph R of paragraph 6 and paragraph 7 of the Concession Agreement are hereby deleted. 7. Paragraph 8 of the Concession Agreement is hereby amend- ed to read: If not in default hereunder., concessionaire shall have the option to extend the term of this Agreement for two ( 2 ) consecutive five (5) year periods, by giving City written notice of its exercise of such option at least six (6) months prior to the end of the original term and the first extended term, as the case may be. Each extended term shall be upon the same covenants and conditions herein except (a) there shall be no further option to extend this Agreement, and (b) the annual rent during each year of the extended terms shall be six percent (6 %) of all gross sales transacted from or upon the concession area, or One Thousand Dollars ($1,000.00), whichever is greater. 8. The Concession Agreement as herein amended shall contin- ue in full force and effect. Executed at Pueblo, Colorado the day and year first above written. By" Pre =�_ PUEBLO, A MUNICIPAL CORPORATION By City Manager ATTEST: Secretary -2- CHANGES AND ADDITIONS TO ADDENDUM NUMBER ONE 3. Paragraph 4 of the Concession Agreement is amended by the addition of the following: The transfer of a majority interest in the shares of stock of the concessionaire shall constitute and be deemed an assignment for purposes of this paragraph. Any such assignment, sublease or transfer without the prior written consent of City shall be unenforceable against the City and constit ground to terminate this Agreement. /�. %? withheld. (�[ 5. Subparagraph D of paragraph 6 of the Concession Agreement is amended to read: The concessionaire will be required to be open for the accommodation of the public at least six (6) hours, weather permitting, each day during the months of May through Septem- ber, inclusive, of each year and.for such additional periods within the year as deemed necessary by the concessionaire. 9. Subparagraph B of paragraqph 6 of the Concession Agree- ment is amended to read:. Concessionaire agrees to serve only good, pure, whole- some food and drinks. Such concessionaire shall cause to be posted in a conspicuous manner a neat sign, plainly readable, showing the price of all articles of food and drinks to be sold under this agreement. All other display signs, menus, or advertising matter which may be used in the park shall meet with the approval of the Director of Parks. Such approval shall not be unreasonably withheld. 10. Subparagraph C of paragraph 6 of the Concession Agree- ment is amended to read: To at all times keep the counters clean and to keep any surface for cooking and serving food clean. The concessionaire will adhere strictly to all the pure food laws and ordinances as adopted or promulgated by the State of Colorado, the City of Pueblo, and the Pueblo City- County Health Department, and such concessionaire will otherwise at all times abide by the rules and regulations of the Director of Parks and the City of Pueblo as herein set forth. 11. Subparagraph J of paragraph 6 of th Concession Agree- ment is amended to read: The concession building presently erected on the concession area and all equipment.and articles thereon are and shall remain the property of the concessionaire herein. Upon the termination of this agreement for any cause, concessionaire shall have ninty (90) days to sell or dispose of the building and the appurtenances (2) on the premises, and remove the same, and in the event •. concessionaire fails to remove same within said 90 day perio , the structure and all appurtenances thereto shall become the property of the City of Pueblo. Executed at Pueblo, Colorado the day and year first above written. R - V By O"� Ron Volk esident PUEBLO, MUU`N✓ICIP CORPORATION By City Manag r RELEASE AND HOLD - HARMLESS AGREEMENT Whereas, VanSea, Inc. and Lonye J. Hearn (Hearn) entered into a buy -sell agreement on the building, equipment and fixtures at 800 W. Northern.Avenue, Pueblo, Colorado,'on July 11, 1985. Whereas, Hearn did convey said equipment, fixtures and building by bill of sale to VanSea, Inc. Whereas, VanSea, Inc. did execute its promissory note and financing statement to Hearn. Whereas, VanSea, Inc. desires to return said equipment, building and fixtures to Hearn and have the balance owed on its note forgiven. Whereas, Hearn is willing to accept such equipment, fixtures and building in "as is" condition, and is willing to forgive the balance due on said note by VanSea, Inc. so that VanSea, Inc. owes nothing. Whe Sea, Inc. has conducted business at s location since July , 't warrants as paid or will pay all bills outstand' a hold Hearn harmless from these ave been incurred while 1 Hess. Whereas, VanSea, Inc. has had title and possession of the equipment, building and fixtures, it warrants that it has not pledged these items as security for any debt. Whereas, upon the sale of the business, VanSea, Inc. entered into a concession agreement with the City of Pueblo. VanSea, Inc. will cooperate and assist to the fullest extent that may be required, in the transfer back to Hearn of the concession. Wherefore, this release and hold - harmless agreement is entered into this �2�: day of 1987. VanSea, Inc. By: ) I --,q OA. A Vice- esiden L ?nye J/ Hear t D U D D -F A City of Pueblo OFFICE OF THE CITY ATTORNEY 127 Thatcher Building PUEBLO, COLORADO 81003 TO: Marian Mead, City Clerk FROM: City Attorney RE: Minnequa Park Concession Agreement DATE: July 30, 1992 Please place all of the enclosed correspoBence and documents in your official file for Resolution No. 154�55 adopted April 25, 1988. If you have any questions, please call me. Very truly yours, Tfio E . sm enc. cc: Billy G. Martin Director of Finance /enclosures U� City of Pueblo OFFICE OF THE CITY ATTORNEY 127 Thatcher Building PUEBLO, COLORADO 81003 July 30, 1992 Mr. John R. Naylor Attorney at Law 1123 N. Elizabeth PUeblo, CO 81003 Re: Minnequa Park Concession Dear John: We have discussed your letter of July 24, 1992 and enclosures with Lew Quigley, City Manager and he acknowledges that the signature on Addendum No. 1 and Change And Addition To Addendum Number One are his. We accept such documentation and conclude that R.V. Ltd. Concession Agreement is in effect and that R.V. Ltd. did exercise its right to extend the term of the Concession Agreement for a period of 5 years from March 1, 1992 to March 1, 1997. The City's administration is unwilling to further amend or modify the Concession Agreement or to agree to any change in the concession operation or the concession area. Thanks for your cooperation. Very truly yours, Thomas E. Jagger sm cc: Lew Quigley, City Manager Tony Langoni, Director of Parks & Recreation NAYLOR & GEISEL, P.C. LAW OFFICE 1123 N. Elizabeth Street, P.O. Box 1421, Pueblo, Colorado 81002 July 24, 1992 Thomas E. Jagger, Esq. 127 Thatcher Building Pueblo, Colorado 81003 Re: Minnequa Park Concession Dear Tom: JOHN R. NAYLOR, II HENRY J. GEISEL Telephone (719) 543 -7243 Fax (719) 542 -3947 Your letter of July 7, 1992 addressed to Ronald J. Volk at Dairy Delux has been referred to this office for reply. In that regard I am enclosing herewith copies of what was Exhibit B on the contract between R -V Ltd. and Lonye Hearn, to purchase the business, which is addendum number 1 and changes additions to addendum number 1 that had been signed by Ron on behalf of R -V Limited and Lou on behalf of the City. I am also enclosing a copy of a release and hold harmless agreement signed by VanSea, Inc. 4% ( � l In reviewing Resolution No. 5485" which consented to the assignment of the lease concerning Dairy Delux, and which was introduced April 25, 1988, I noticed that the addendums were executed on May 16, 1988, and am therefore assuming that all of the conditions precedent, that were set forth in the resolution, had been met. I am also enclosing herewith a copy of the note under date of August 18, 1991 which was sent to the City, along with checks for the lease and sales tax, which we felt exercised the option pursuant to the concession. agreement. We are therefore under the opinion that we do have a valid and bonding agreement for the operation of the Minnequa Park Concession at Dairy Delux. Would you please review your files. Thanking you for your continued cooperation. Very truly yours, & GEISEL, P. C. John . Naylor JRN/ ek - City of Pueblo July 7, 1992 Mr. Ronald J. Volk Dairy Delux 74 Verdosa Drive Pueblo, CO 81005 OFFICE OF THE CITY ATTORNEY 127 Thatcher Building PUEBLO, COLORADO 81003 Re: Minnequa Park Concession Dear Mr. Volk: After receipt of your letter of June 17, 1992 addressed to Mr. Quigley, we reviewed the City's records with respect to the Minnequa Park Concession Agreement dated February 28, 1977 (the "Agreement "). The Agreement expired by its terms on March 1, 1992. Although the City Council by Resolution No. 5185 adopted April 25, 1988 authorized an assignment of the Agreement to R.V. Ltd., such authorization was contingent upon the execution and delivery to the City of instruments acceptable to the City Attorney (i) cancelling and releasing Dean Van Zandt dba VanSec, Inc.'s interest in the Agreement, and (ii) assigning the Agreement to and acceptance thereof by R.V. Ltd. Neither of such instruments have been delivered to the City. In addition, R.V. Ltd. has not signed a proposed Addendum No. 1 to the Agreement (copy enclosed) which sets forth certain modifications to the Agreement including a right to renew which required R.V. Ltd. to give written notice to the City at least 6 months prior to March 1, 1992 in order to renew the Agreement. Your letter of June 17, 1992 does not comply with such renewal provisions. Based upon City's records made available to me for review, it is our opinion that no valid and binding agreement for the operation of the Minnequa Park Concession now exists. Please review your records and if you have the necessary instruments and Addendum No. 1 in your possession or if your records indicate such were duly executed and delivered to Mr. Ronald J. Volk Page 2 July 7, 1992 the City, please immediately contact me. Very truly yours, Thomas� agger sm CC. Lew Quigley, City Manager Robert Krasovec