RESOLUTION NO. 35-12
A RESOLUTION APPROVING THE LEASE AGREEMENT WITH SOUTHSIDE LEASING, LLC FOR PROPERTY LOCATED IN THE VICINITY
OF 1101 KIMBALL AVENUE
RECITALS.
Southside Leasing, LLC, are the owners of the property at 1101 Kimball Avenue (old sugar beet factory building) and are proposing to lease two small parcels from the City that are remnants of Las Colonias Park that were isolated by construction of Riverside Parkway.
Upon approval of the lease agreement, Southside Leasing, LLC will assume maintenance of the two parcels and include them in future plans for redevelopment of the property.
The City has engaged in similar lease agreements for nearby properties to lease remnants of Las Colonias Park that have been isolated by construction of the Riverside Parkway.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF GRAND JUNCTION, COLORADO that the lease agreement with Southside Leasing, LLC for property in the vicinity of 1101 Kimball Avenue is hereby approved.
Adopted this 15th day of August, 2012.
Attest:
/s/ Stephanie Tuin /s/ Laura Luke
City Clerk President of City Council Pro Tem
Lease Agreement
THIS LEASE AGREEMENT ("Agreement") is entered into as of the ____ day of August 2012, by and between the City of Grand Junction, a Colorado home rule municipality, hereinafter referred to as "the City", and Southside Leasing, LLC, hereinafter referred to as "Lessee", whose address for the purpose of this Agreement is 706 South 9th Street Grand Junction, CO 81501.
RECITALS
A. The City is the owner of that certain real property in the City of Grand Junction, County of Mesa, State of Colorado, described as:
A certain parcel of land lying in Section 24, Township 1 South, Range 1 West of the Ute Principal Meridian, State of Colorado, County of Mesa, City of Grand Junction, being a portion of City owned lands having as a Parcel Number 2945-231-00-945 and being more particularly described as follows:
ALL of that part of said Parcel Number 2945-231-00-945 lying South of Lot 2, Old Mill Subdivision, as same is recorded in Book 5008, Pages 27 and 28, Public Records of Mesa County, Colorado; North of a line that is 5.00 feet North of and parallel with the Northerly edge of the concrete gutter lying North of the Riverside Parkway; West of an existing concrete wall whose Northerly terminus is located approximately at the Northeast corner of said Lot 2, Old Mill Subdivision.
CONTAINING 41,000 Square Feet, more or less, as described.
And;
A certain parcel of land lying in Section 23, Township 1 South, Range 1 West of the Ute Principal Meridian, State of Colorado, County of Mesa, City of Grand Junction and being more particularly described as follows:
ALL that portion of Parcel Number 2945-231-00-945 owned by the City of Grand Junction, lying South of Lot 1, Old Mill Subdivision, as same is recorded in Book 5008, Pages 27 and 28, Public Records of Mesa County, Colorado and lying North of a line that is 5.00 feet North of and parallel with the Northerly edge of the concrete gutter lying North of the Riverside Parkway.
CONTAINING 18,000 Square Feet, more or less, as described.
The City acquired the property (now know as “Park Property” or “the Park Property”) which was formerly a uranium mill tailing processing site, from the State of Colorado Department of Health and the Environment ("State") by quit claim deed ("Deed"), following remediation of the site, as recorded in Book 2320, Pages 884 and 885, Public Records, Mesa County, Colorado. Pursuant to 42 U.S.C §7914 (e)(1)(B), the State may donate such lands to another governmental entity for permanent use by the governmental entity solely for park, recreational or other public purposes. The
City intends to use a majority of the Park Property for park purposes and intends to develop the property as a community park; however, timing for development and use of the property as a community park is uncertain.
B. Lessee desires to lease a portion of the Park Property and use the surface of the property for storage and other purposes associated with business operations of Southside Leasing, LLC. Lessee is aware of the conditional uses of the Park Property and by signing this Agreement agrees and warrants that he shall use the property only as specified in this Agreement.
C. NOW, THEREFORE, In consideration of the payment of rent and the performance of the promises, covenants, conditions, restrictions, duties and obligations set forth herein, the parties agree as follows:
1. Grant and Acceptance of Lease. The City hereby leases two individual portions of the Park Property to Lessee, more particularly described in Exhibit A, which is attached and incorporated by reference. Lessee hereby accepts and leases the same (“Property”) from the City, for the term stated in paragraph 2 below.
2. Term.
2.1 The term of this Lease shall commence on August 15, 2012 and continue
through August 14, 2017 at which time this Lease shall expire; however, the City may, in its sole discretion, grant to Lessee an option to extend this Lease, as described in paragraph 10 of this Agreement, upon faithful performance by Lessee of each and every covenant, duty, responsibility and obligation of this Agreement.
3. Rental. Rent for the property specified in Exhibit A, for the term hereinabove specified, shall be twenty-five dollars ($25.00) monthly, which amount shall be due and payable, without demand by the City, on or before the first of each month, beginning August 15, 2012. In the event payment of rent is not received by the City on or before the first of each month, Lessee agrees to pay the City a late charge of $25.00, which amount shall be added to the amount of rent(s) due. In the event payment of rent and any late charge is not received by the City on or before the 15th of the following month, this Lease shall automatically terminate and neither party shall have any further rights, duties or obligations under this Agreement.
4. Reservations from Lease. Pursuant to the Deed, the State reserved unto itself any non-tributary ground water underlying this parcel, the right to develop tributary ground water and the right to surface access for ground water development.
This Lease is also subject to the reservation of: (a) any and all oil, gas, coal and other minerals and mineral rights of any person underlying and/or appurtenant to the Property; (b) all water and water rights, ditches and ditch rights appurtenant to and/or connected with the Property, including, but not limited to, any water and/or water rights which may have been previously used on or in connection with the Property, for whatever purpose; (c) existing rights-of-way for roads, railroads, telephone lines, transmission lines, utilities, ditches, conduits or pipelines on, over, or across said parcel; and the following terms and
conditions specified in Section 5 below, so long as such actions will not interfere with Lessee's use and quiet enjoyment of the Property for the purposes set forth in this Agreement.
5. Use and Condition of the Property.
5.1 Lessee covenants and agrees that Lessee's use of the Property is strictly
limited to the use of the surface of the property and that he will not use the ground water from the site for any purpose, construct wells or any means of exposing ground water to the surface. Lessee also agrees to make application and follow City development requirements, including but not limited to, prior written approval of construction plans, designs and specifications. Any habitable structures constructed on the property shall employ a radon ventilation system or other radon mitigation measures, as required by the State of Colorado. Any use of the property shall not adversely impact ground water quality nor interfere with ground water remediation under State and federal regulations.
5.2 Lessee agrees that Lessee's use and occupancy of the Property shall be
subject to all applicable laws, rules, rulings, codes, regulations and ordinances of any governmental authority, either now in effect or hereafter enacted, having jurisdiction over the Property and Lessee's use, occupancy and operations thereon. Lessee agrees that Lessee shall not use nor permit the Property to be used for any other purpose or in any other fashion or manner contrary to the provisions of this Lease or the laws, ordinances, codes or regulations of any governmental unit or agency exercising jurisdiction over the Property or any use thereon.
5.3 Lessee agrees to maintain, clean and repair all aspects of the Property at
Lessee's sole cost and expense, including, but not limited to driveways, fences, and gates located upon the Property, and to not cause damage to the Property or to the real or personal property of any other party. Lessee agrees that the City shall not be obligated nor required to repair damages to any portion or aspect of the Property.
5.4 Lessee agrees to make a reasonable effort to keep the Property free from
noxious weeds. Lessee further agrees that Lessee shall not commit nor permit waste, damage or injury to the Property.
5.5 Lessee has inspected the Property, the rights and privileges appurtenant
thereto, and the rules, regulations, codes and ordinances governing Lessee's use, occupancy and operations thereon. Lessee agrees that the condition of the Property and such rights, privileges, rules, regulations, codes and ordinances are sufficient for the purposes of Lessee. The City makes no warranties, promises or representations, express or implied, that the Property is sufficient for the purposes of Lessee. If the Property is damaged due to fire, flood or other casualty, or if the Property or any aspect thereto is damaged or deteriorates to the extent where it is no longer functional for the purposes of Lessee, the City shall have no obligation to repair the Property nor to otherwise make the Property usable or occupiable; damages shall be at Lessee's own risk.
6. Non-liability of the City for Damage.
6.1 The City shall not be liable for liability or damage claims for injury to persons or property, including property of Lessee, from any cause relating to the occupancy and use of the Property by Lessee, including those arising out of damages or losses occurring on areas adjacent to the Property or easements used for the benefit of the Property during the term of this Lease or any extension thereof, nor for any injury or damage to any property of Lessee or any other party, from any cause. Lessee shall indemnify the City, its officers, employees and agents, and hold the City, its officers, employees and agents, harmless from all liability, loss or other damage claims or obligations resulting from any injuries, including death, or losses of any nature.
6.2 The City shall not be liable to Lessee for any damages or any loss of profits or loss of opportunities claimed by Lessee or for interruption of Lessee's business or operations resulting from fire, the elements, casualty of any kind or the closure of any public highway providing access to and from the Property.
7. Hazardous Substances.
7.1 The term "Hazardous Substances", as used in this Agreement, shall mean
any substance which is: defined as a hazardous substance, hazardous material,
hazardous waste, pollutant or contaminant under any Environmental Law enacted by any federal, state and local governmental agency or other governmental authority; a petroleum hydrocarbon, including, but not limited to, crude oil or any fraction thereof; hazardous, toxic or reproductive toxicant; regulated pursuant to any law; any pesticide or herbicide regulated under state or federal law. The term "Environmental Law", as used in this Lease Agreement, shall mean each and every federal, state and local law, statute, ordinance, regulation, rule, judicial or administrative order or decree, permit, license, approval, authorization or similar requirement of each and every federal state and local governmental agency or other governmental authority, pertaining to the protection of human health and safety of the environment, either now in force or hereafter enacted.
7.2 Lessee shall not cause or permit to occur by Lessee and/or Lessee's
agents, guests, invitees, contractors, licensees or employees:
a. any violation of any Environmental Law on, under or about the Property or
arising from Lessee's use and occupancy of the Property, including, but not
limited to, air, soil and groundwater conditions; or
b. the use, generation, accidental or uncontrolled release, manufacture,
refining, production, processing, storage or disposal of any Hazardous
Substance on, under or about the Property, or the transportation to or from
the Property of any Hazardous Substance in violation of any federal state or
local law, ordinance or regulation either now in force or hereafter enacted.
8. Environmental Clean-Up.
8.1 The following provisions shall be applicable to Lessee and to Lessee's
agents, guests, invitees, contractors, licensees and employees:
a. Lessee shall, at Lessee's sole cost and expense, comply with all Environmental Laws and laws regulating the use, generation, storage, transportation or disposal of Hazardous Substances;
b. Lessee shall, at Lessee's sole cost and expense, make all submissions to provide all information required by and/or to comply with all requirements of all governmental authorities ("the Authorities") under Environmental Laws and other applicable laws.
c. Should any Authority or the City demand that a clean-up plan be prepared and that a clean-up plan be undertaken because of any deposit, spill, discharge or other release of Hazardous Substances on, under or about the Property, Lessee shall, at Lessee's sole cost and expense, prepare and submit the required plan(s) and all related bonds and other financial assurances, and Lessee shall carry out all such clean-up plan(s) in compliance with the Authorities and all Environmental Laws and other applicable laws.
d. Lessee shall promptly provide all information regarding the use, generation, storage, transportation or disposal of Hazardous Substances requested by any Authority. If Lessee fails to fulfill any duty imposed hereunder within a reasonable time, the City may do so on Lessee's behalf and, in such case, Lessee shall cooperate with the City in the preparation of all documents the City or any Authority deems necessary or appropriate to determine the applicability of Environmental Laws to the Property and Lessee's use thereof, and for compliance therewith, and Lessee shall execute all documents promptly upon the City's request. No such action by the City and no attempt made by the City to mitigate damages under any Environmental Law or other applicable law shall constitute a waiver of any of Lessee's obligations hereunder.
e. Lessee's obligations and liabilities hereunder shall survive the expiration or termination of this Lease Agreement.
8.2 Lessee shall indemnify, defend and hold the City, its officers, employees and agents harmless from all fines, suits, procedures, claims and actions of every kind, and all costs associated therewith (including the costs and fees of attorneys, consultants and experts) arising out of or in any way connected with any deposit, spill, discharge or other release of Hazardous Substances and the violation of any Environmental Law and other applicable law by Lessee and/or Lessee's agents, guests, invitees, contractors, licensees and employees that occur during the term of this Lease or any extension thereof, or from Lessee's failure to provide all information, make all submissions, and take all actions required by all Authorities under the Environmental Laws and other applicable laws. Lessee's obligations and liabilities hereunder shall survive the expiration or termination of this Lease Agreement.
9. Default, Sublet, Termination, Assignment.
9.1 Should Lessee: (a) default in the performance of its agreements or
obligations herein and any such default continue for a period of thirty (30) days after written notice thereof is given by the City to Lessee; or (b) abandon or vacate the Property; or (c) be declared bankrupt, insolvent, make an assignment for the benefit of creditors, or if a receiver is appointed; the City, at the City's option, may cancel and annul this Lease at once and enter and take possession of the Property immediately without any previous notice of intention to reenter, and such reentry shall not operate as a waiver or satisfaction in whole or in part of any claim or demand arising out of or connected with any breach or violation by Lessee of any covenant or agreement to be performed by Lessee. Upon reentry, the City may remove the property and personnel of Lessee and store Lessee's property in a warehouse or at a place selected by the City, at the expense of Lessee and without liability to the City. Any such reentry shall not work a forfeiture of nor shall it terminate the rent(s) to be paid or the covenants and agreements to be performed by Lessee for the full term of this Lease; and, upon such reentry, the City may thereafter lease or sublease the Property for such rent as the City may reasonably obtain, crediting Lessee with the rent so obtained after deducting the cost reasonably incurred in such reentry, leasing or subleasing, including the costs of necessary repairs, alterations and modifications to the Property. Nothing herein shall prejudice or be to the exclusion of any other rights or remedies which the City may have against Lessee, including, but not limited to, the right of the City to obtain injunctive relief based on the irreparable harm caused to the City's reversionary rights.
9.2 Except as otherwise provided for (automatic and immediate termination), if
Lessee is in default in the performance of any term or condition of this Lease Agreement, the City may, at its option, terminate this Lease upon giving thirty (30) days written notice. If Lessee fails within any such thirty (30) day period to remedy each and every default specified in the City's notice, this Lease shall terminate. If Lessee remedies such default, Lessee shall not thereafter have the right of thirty (30) days (to remedy) with respect to a similar subsequent default, but rather, Lessee's rights shall, with respect to a subsequent similar default, terminate upon the giving of notice by the City.
9.3 Lessee shall not assign or sublease the Property, or any right or privilege
connected therewith, or allow any other person, except officers, employees, agents and clientele of Lessee, to occupy the Property or any part thereof without first obtaining the written consent of the City, which consent must be approved and ratified by the City Council of the City. Any attempt to sublet, assign or transfer without the prior written consent of the City shall be void ab initio. In the event an assignment of this Lease or a sublease is authorized by the City, Lessee shall not be released from Lessee's obligations and duties under this Lease and this Lease shall remain in full force and effect. Any consent by the City shall not be a consent to a subsequent assignment, sublease or occupation by any other party. Any unauthorized assignment, sublease or permission to occupy by Lessee shall be void and shall, at the option of the City, provide reasonable cause for the City to terminate this Lease. The interest of Lessee in this Lease is not to be assignable by operation of law without the formal approval and ratification by the City Council of the City.
9.4 Lessee shall not engage or allow any contractor, material man or supplier to perform any work or supply any materials or other goods or services on any portion of the Property which could be the subject of a mechanic's lien.
10. Option to Extend Lease If Lessee performs Lessee's duties and obligations pursuant to this Agreement to the satisfaction of the City and if the City chooses, at its sole option and discretion, to again lease the surface rights associated with the Property, at the expiration of the term as set forth in paragraph 2, the City hereby grants to Lessee an option to extend this Lease for four (4) additional five (5) year periods, upon the same terms and conditions of this Agreement or upon other terms and conditions which may hereafter be negotiated between the parties. In order to exercise Lessee's option for an additional term, Lessee shall, on or before July 1, 2017, give 30 days' written notice to the City of Lessee's desire and intention to lease the Property for an additional term. Additional notice shall be similarly provided for and in advance of each successive renewal term.
11. Fees or Commissions. The parties to this Lease Agreement warrant that no person or selling agency has been employed or retained to solicit or secure this Lease upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee. The City and Lessee agree to defend, indemnify and hold the other harmless from any claim for real estate brokerage commissions or finder's fees asserted by any other party claiming to be entitled to brokerage commissions or finder's fees arising out of this Lease.
12. Notices. All notices to be given with respect to this Lease shall be in writing delivered either by United States mail or Express mail, postage prepaid, or by facsimile transmission, personally by hand or courier service, as follows:
To the City: With Copy to:
City of Grand Junction City of Grand Junction
Parks and Recreation Director City Attorney
1340 Gunnison Avenue 250 North 5th Street
Grand Junction, CO 81501 Grand Junction, CO 81501
To Lessee:
Bryan Wiman
Southside Leasing, LLC
706 South 9th Street
Grand Junction, CO 81501
All notices shall be deemed given: (a) if sent by mail, when deposited in the mail;
(b) if delivered by hand or courier service, when delivered; or (c) if transmitted by facsimile, when transmitted. The parties may, by notice as provided above, designate a different address to which notice shall be given.
13. Not a Partnership.
13.1 The City, by entering into this Lease Agreement, does not part with its entire possession of the Property, but only so far as it is necessary to enable Lessee to use the Property and carry out the terms and provisions of this Lease. It is expressly agreed between the parties that this Agreement is one of lease and not of partnership and that the City shall not be or become responsible for any debts contracted or incurred by Lessee. Lessee shall save, indemnify and hold the City, its officers, employees and agents harmless against all liability and loss, and against all claims or actions based upon or arising out of any claim, lien, damage or injury (including death), to persons or property caused by Lessee or sustained in connection with Lessee's performance of the terms and conditions of this Agreement or the conditions created thereby, or based upon any violation of any statute, ordinance, code or regulation, either now in force or hereinafter enacted, and the defense of any such claims or actions, including the costs and fees of attorneys, consultants and experts. Lessee shall also save, indemnify and hold the City, its officers, employees and agents harmless from and against all liability and loss in connection with, and shall assume full responsibility for the payment of, all federal, state and local taxes, fees or contributions imposed or required under unemployment insurance, social security and income tax laws with respect to employees engaged by Lessee.
13.2 The City hereby reserves the right to at all times have its officers, employees and agents enter into and upon the demised premises and every part thereof and to do such acts and things as may be deemed necessary for protection of the City's interests therein.
14. Enforcement, Partial Invalidity, Governing Law.
14.1 If the City uses the services of a city attorney, or engages another attorney or attorneys to enforce its rights hereunder, or to terminate this Agreement, or to defend a claim by Lessee or any person claiming through Lessee, and/or to remove Lessee or Lessee's personal property from the Property, Lessee agrees to pay the reasonable attorney's fees of the City in such regard, plus the costs or fees of any experts, incurred in such action.
14.2 The invalidity of any portion of this Lease Agreement shall not affect the
validity of any other provision contained herein. In the event any provision of this
Agreement is held to be invalid, the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provisions.
14.3 This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. Venue for any action to enforce any covenant or agreement contained in this Agreement shall be in Mesa County, Colorado.
15. Surrender, Holding Over. Lessee shall, upon the expiration or termination of this Lease, surrender the Property to the City in good order, condition and state of repair, reasonable wear and use excepted. In the event Lessee fails, for whatever reason, to vacate and surrender the Property upon the expiration or termination of this Lease and the parties have not reached an agreement which would allow Lessee to continue to occupy any portion of the Property, Lessee agrees that Lessee shall pay to the City the sum of $10.00 per day for each and every day thereafter until Lessee has effectively vacated and surrendered the Property. The parties agree that it would be difficult to establish the actual damages to the City in the event Lessee fails to vacate and surrender the Property upon the expiration or termination of this Lease, and that said $25.00 daily fee is an appropriate liquidated damages amount.
16. Total Agreement; Applicable to Successors. This Lease contains the entire agreement between the parties and, except for automatic expiration or termination, cannot be changed or modified except by a written instrument subsequently executed by the parties hereto. This Lease and the terms and conditions hereof apply to and are binding upon the successors and authorized assigns of both parties.
The parties hereto have each executed and entered into this Lease Agreement as of the day and year first above written.
The City of Grand Junction,
Attest: a Colorado home rule municipality
________________________ __________________________
City Clerk Rich Englehart, City Manager
Lessee:
_________________________
Bryan Wiman, Partner