HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 01/17/2012 - SECOND READING OF ORDINANCE NO. 183, 2011, AUTHORIDATE: January 17, 2012
STAFF: Bruce Hendee, Ken Mannon
Helen Matson
AGENDA ITEM SUMMARY
FORT COLLINS CITY COUNCIL 16
SUBJECT
Second Reading of Ordinance No. 183, 2011, Authorizing the Lease of City-owned Property at 430 North College
Avenue and 100 Willow Street to the Colorado State University Research Foundation.
EXECUTIVE SUMMARY
Colorado State University (CSU) has leased the City-owned property known as the Old Power Plant at 430 North
College Avenue for the last 17 years. CSU has used this site as the Engines and Energy Conversion Lab (EECL).
This program has grown over the years and it is Colorado State University Research Foundation’s (CSURF) desire
to construct a new building that will be used to house additional labs, office and incubator companies sharing the vision
of the EECL. A new lease agreement is necessary to accommodate these changes. This Ordinance, authorizing a
new lease, was unanimously adopted on First Reading on December 20, 2011 (6-0, Troxell withdrew due to a conflict
of interest).
Second Reading of Ordinance No. 183, 2011, was postponed from January 3 to January 17, 2012, since Council
expressed concern with portions of the Lease on First Reading. Staff has met with CSURF to discuss the reduction
of items in the River Buffer Zone and the proposed improvements for the access drive to the east door of the existing
building. New language for the Lease Agreement is being drafted and CSURF is working on new exhibits showing
suggested changes to the access drive. This information will be provided to Council by January 17.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on Second Reading.
ATTACHMENTS
1. Copy of First Reading Agenda Item Summary - December 20, 2011
(w/o attachments)
COPY
COPY
COPY
COPY
ATTACHMENT 1
DATE: December 20, 2011
STAFF: Bruce Hendee, Ken Mannon
Helen Matson
AGENDA ITEM SUMMARY
FORT COLLINS CITY COUNCIL 29
SUBJECT
First Reading of Ordinance No. 183, 2011, Authorizing the Lease of City-owned Property at 430 North College Avenue
and 100 Willow Street to the Colorado State University Research Foundation.
EXECUTIVE SUMMARY
Colorado State University (CSU) has leased the City-owned property known as the Old Power Plant at 430 North
College Avenue for the last 17 years. CSU has used this site as the Engines and Energy Conversion Lab (EECL).
This program has grown over the years and it is CSURF’s desire to construct a new building that will be used to house
additional labs, office and incubator companies sharing the vision of the EECL. A new lease agreement was
necessary to accommodate these changes.
The new lease agreement will be with Colorado State University Research Foundation (CSURF) and CSU will
relinquish all rights, title and interest in the original Lease Agreement dated February 15, 1994 and the First
Amendment to Lease Agreement dated January 13, 2005.
BACKGROUND / DISCUSSION
History of Site and Current use
The City acquired the property located at 430 North College Avenue in 1912. A municipal landfill operated on a portion
of the site in the mid-1900s. The City constructed the existing facility as a power plant. This plant was in operation
from 1935 until 1972. From 1972 until 1988, it was used as a switching station. The next use was as an art gallery
in 1988 and 1989. On February 15, 1994, the City entered into a Lease Agreement with CSU to use the site and the
old power plant building for laboratory and research purposes focusing on internal combustion engine. This Lease
Agreement had an original term of ten years with automatic renewals for three successive five year periods, or a total
25 years. The rental rate during these years was $1/year.
That Lease Agreement was modified in the summer of 2004. This modification was to add another five year extension
period to the lease, making the lease a total of 30 years. Also included in this modification, the City agreed to increase
the termination notice period to five years. The City agreed to these changes to assist CSU with fundraising activities
for EECL’s programs and the potential of a new building.
New Lease Terms and Definitions
Due to CSU’s plan to add the new building on the City-owned property, staffs from CSU, CSURF and the City started
negotiations for a new lease agreement. An agreement has been reached on the terms of the lease (Attachment 2).
A summary of the lease definitions and lease terms is provided below:
Lease Definitions
City Property – the Power Plant property currently leased to CSU.
Main Building – the existing Power Plant building.
Main Parcel – the Power Plant property that would be leased to CSURF in the new lease.
New Building – the building CSURF plans to build on the Main Parcel.
Parking Parcel – a parcel of City property south of the Main Parcel that CSURF would lease to build a parking lot on.
Leased Premises – the Main Parcel and Parking Parcel.
CSURF Affiliates – CSU or any person, persons or entity working for CSURF or CSU or their subsidiary departments,
programs or organizations.
Lease Terms
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the “Lease”), made and entered into this ____ day of
______________, 2011 (the “Effective Date”), by and between THE CITY OF FORT
COLLINS, COLORADO, a Colorado Municipal Corporation (the “City”), THE BOARD
OF GOVERNORS OF THE COLORADO STATE UNIVERSITY SYSTEM, formerly
known as THE COLORADO STATE BOARD OF AGRICULTURE, acting by and
through COLORADO STATE UNIVERSITY (“CSU”), and THE COLORADO STATE
UNIVERSITY RESEARCH FOUNDATION, a Colorado Non-Profit Corporation
(“CSURF”).
WITNESSETH:
WHEREAS, the City is the owner of that certain parcel of real estate, together with the
improvements located thereon, situated in the County of Larimer, State of Colorado, which is
legally described on attached Exhibit “A”, incorporated herein by this reference, with a street
address of 430 N. College Avenue, Fort Collins, Colorado (“City Property”); and,
WHEREAS, on February 15, 1994, the City and CSU entered into a Lease Agreement for
a portion of the City Property, which was modified by the First Amendment to Lease Agreement
dated January 13, 2005 (together, the “1994 Lease”); and
WHEREAS, CSU has been in continuous possession of the City Property since 1994 and
has been using said Property for its Engines and Energy Conversion Laboratory; and
WHEREAS, CSU’s desired use of the City Property has changed since the 1994 Lease
was executed, and the parties wish to enter into this new Lease in order to permit this change in
use and clarify the parties’ rights and responsibilities; and
WHEREAS, by this Lease and signature hereon, CSU agrees to relinquish all right, title
and interest in and to the Lease Agreement dated February 15, 1994, and the First Amendment to
Lease Agreement dated January 13, 2005, referenced above, and the real estate described therein
and herein above as Exhibit “A,” in order to allow the City and CSURF to come to a written
agreement for the lease of said City Property; and
WHEREAS, CSURF intends to construct a new building (the “New Building”) on said
City Property and/or other improvements thereto, which improvements are contemplated by the
terms and provisions of this Lease and incorporated herein; and
WHEREAS, the City desires to lease to CSURF, and CSURF desires to lease from the
City, that portion of the City Property consisting of 4.091 acres with a main building (the “Main
Building”) 38,509 square feet in size, and a metal outbuilding (the “Metal Outbuilding”) 2,455
square feet in size, and the real estate as generally described on attached Exhibit “B”, which is
incorporated herein by this reference (the “Main Parcel”); and
WHEREAS, in addition, the City desires to lease to CSURF and CSURF desires to lease
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from the City, that certain parcel of real estate, together with the improvements located thereon,
situated in the County of Larimer, State of Colorado, which is legally described on attached
Exhibit “C”, incorporated herein by this reference (the “Parking Parcel”); and
WHEREAS, the Main Parcel and the Parking Parcel are collectively referred to herein as
the “Leased Premises”; and
WHEREAS, the previous and current use of the City Property has enabled the
development of the Engines and Energy Conversion Laboratory, thus benefiting CSU as well as
the common good of the citizens of the City. CSU and CSURF agree that the uses contemplated
by this Lease are in the best interests of the Engines and Energy Conversion Laboratory, and the
parties agree this Lease is mutually beneficial; and
WHEREAS, on , City Council approved Ordinance No. , 2011 which
authorized the leasing of the Leased Premises.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
agreements herein contained and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
Lease of the Leased Premises
1.1 The City hereby leases, demises and lets unto CSURF, and CSURF hereby hires,
rents, and takes from the City the Leased Premises.
1.2 This Lease supersedes and vacates the 1994 Lease between the City and CSU.
The 1994 Lease terminates on the first day of the term of this Lease and will be of no further
force and effect, except for those terms intended to survive its termination.
1.3 CSU retains all rights to the fixtures, improvements and personal property owned
by CSU and currently in the Leased Premises. To the extent CSU wishes to leave such fixtures,
improvements and personal property in the Leased Premises, CSU may arrange with CSURF to
do so, and the City assumes no responsibility for the same. CSU hereby agrees to relinquish all
of its right, title and interest in and to the City Property and the 1994 Lease, and the real estate
described herein on Exhibit “A,” by signature hereon.
ARTICLE II
Term
2.1 The initial term of this Lease is for a period of forty (40) years beginning on the
Effective Date (the “Initial Term”). However, should CSURF not have a fully executed contract
for construction of the New Building within five (5) years from the Effective Date, or fail to
complete construction obtain a certificate of occupancy or temporary certificate of occupancy
forof the New Building within eight (8) years from the Effective Date, then the Initial Term shall
be ten (10) years, unless otherwise agreed by the parties. This Lease may be extended under
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Article III below.
2.2 This Lease will not be recorded; but, at the request of either party, the City and
CSURF will execute a Memorandum of Lease for recording, containing the names of the parties,
the legal description of the Leased Premises, the term of the Lease and such other information as
the parties mutually agree.
ARTICLE III
Lease Extension Option
3.1 Provided CSURF has constructed the New Building and is not in default in the
keeping and performing of any of the conditions and covenants of this Lease, then the following
lease extension provisions shall apply:
3.1.1 CSURF shall have the option and privilege of extending the term hereof
for (i) an additional twenty (20) year extended term (the "First Extended Term"), commencing at
midnight on the day on which the Initial Term of this Lease terminates and (ii) an additional
twenty (20) year extended term (the "Second Extended Term, and together with the First
Extended Term, the "Extended Term"), commencing at midnight on the day on which the First
Extended Term of this Lease terminates.
3.1.2 CSURF shall provide the City with notice of CSURF's intent to extend or
terminate the term of this Lease no less than two (2) years prior to the end of the Initial Term or
the First Extended Term, as applicable.
3.2 If CSURF is not in default in the keeping and performing of any of the conditions
and covenants of this Lease, but the Initial Term has been shortened to ten (10) years in
accordance with section 2.1 above, then the following lease extension provisions shall apply:
3.2.1 CSURF shall have the option and privilege, in its sole discretion, of
extending the term hereof for an additional five (5) year extended term (the "First Extended
Term"), commencing at midnight on the day on which the Initial Term of this Lease terminates.
At the end of the First Extended Term CSURF shall have the option and privilege, with the
City’s consent in the City’s sole discretion, of extending the term hereof for (i) an additional ten
(10) year extended term (the "Second Extended Term"), commencing at midnight on the day on
which the First Extended Term of this Lease terminates and (ii) an additional ten (10) year
extended term (the "Third Extended Term, and together with the First and Second Extended
Terms, the "Extended Term"), commencing at midnight on the day on which the Second
Extended Term of this Lease terminates.
3.2.2 CSURF shall provide the City with notice of CSURF's intent to extend or
terminate the term of this Lease no less than two (2) years prior to the end of the Initial Term or
each Extended Term, as applicable.
3.2.3 The City will provide CSURF with notice of the City’s intent not to renew
the Lease no less than five (5) years prior to the end of the First Extended Term or Second
Extended Term as applicable.
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3.3 As used herein "Term" shall mean individually, the Initial Term and any
Extended Term, and collectively, all of such terms.
ARTICLE IV
Rent
4.1 The Base Rent for the Initial Term of this Lease is One Thousand Dollars
($1000.00), based on a rent of Twenty-Five Dollars ($25.00) per year. The full amount of the
rent is due on the Effective Date. If this Lease is extended pursuant to Section 3.1, the rent for
the First Extended Term will be One Thousand Dollars ($1,000.00), and for the Second
Extended Term will be One Thousand Dollars ($1,000.00). If the Lease is extended pursuant to
Section 3.2, there will be no additional rent due for the First Extended Term, the rent for the
Second Extended Term will be Five Hundred Dollars ($500.00) and the rent for the Third
Extended Term will be Five Hundred Dollars ($500.00). No portion of the rent is refundable in
the event of early termination of this Lease for whatever reason.
4.2 Additional Rent shall be paid by CSURF to the City according to the terms,
provisions, conditions and definitions contained in Section 16.8.
4.3 CSURF will make all rent payments to the City at such place as the City may,
from time to time, designate in writing. For the present, the City designates Real Estate Services,
300 LaPorte Ave., P.O. Box 580, Fort Collins, CO 80522, as the place for making rental
payments.
4.4 The rental amounts set forth in Sections 4.1 and 4.2 above are in addition to
CSURF's obligations with respect to the payment of real and personal property taxes (if any),
insurance premiums, utilities and maintenance of the Leased Premises and other amounts as
shown herein.
ARTICLE V
Option to Purchase
5.1 Provided CSURF is not in default in the keeping and performing of any of the
conditions and covenants of this Lease, CSURF shall have the option to purchase the Leased
Premises at a time and on terms to be negotiated by the Parties in good faith, such option being
subject to the mutual agreement and satisfaction of the Parties and subject also to such legal
limitations or requirements as may exist now or in the future upon the exercise of such option,
including but not limited to the consent of the Fort Collins City Council, in its sole discretion.
The purchase price of the Leased Premises shall not reflect any increased value that is the result
of improvements made during the Term of the Lease by CSURF or its assignee.
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ARTICLE VI
Use of Leased Premises
6.1. CSURF may use the Leased Premises for construction of the New Building and
related improvements on the Main Parcel and parking improvements on the Parking Parcel as
generally shown and described on Exhibit “D”, attached and incorporated herein by reference.
CSURF must obtain the approval of the City, as owner of the Leased Premises, of the final plans
for the New Building and all related improvements prior to commencement of construction.
This approval is in addition to any required regulatory approvals including the City’s
development review process.
6.2 CSURF, or its authorized tenants, sub-tenants, assignees, or occupants, as herein
provided (“CSURF’s Tenants”) may use the Main Parcel for: (1) instructional, teaching, and
laboratory and research purposes focused upon developing innovative and alternate energy
solutions, including but not limited to equipment, fuels, software, operational techniques and
processes, developing and testing entrepreneurial models, and similar purposes; (2) related office
and administrative purposes; and (3) ancillary uses related thereto, such as outreach and
extension activities, experimentation or demonstration areas or activities, seminars and
instructional uses, provided that such uses fit within the limitations of this Article. CSURF or
CSURF’s Tenants may use the Parking Parcel for the construction, maintenance and use of
above-ground parking facilities and related improvements. CSURF or CSURF’s Tenants shall
make use of the Leased Premises only in such manner as shall be for the common benefit and
good of the citizens of the City. It is understood and agreed that CSURF and CSURF’s Tenants
shall use the Leased Premises for the purposes that benefit the human condition and achieve
global impact, which may include commercial and non-commercial endeavors, thereby
benefiting the citizens of the City, as well as the State of Colorado, which benefit has been
determined by the City Council to serve a valuable public purpose which transcends the purely
educational and academic purposes normally associated with an institution of higher education.
The parties acknowledge and agree that the permitted uses described herein are for the common
benefit and good of the citizens of the City.
6.3 The parties understand and agree that the Charter of the City prohibits the City
from making any appropriation for any “educational” purpose to any organization not under the
absolute control of the City, but the parties further understand that the purpose to be served by
this Lease is the valuable public purpose of developing and utilizing energy solutions and that at
any time that CSURF and CSURF’s Tenants should cease to serve those purposes then this
Lease shall summarily terminate and be at an end; provided however, that CSURF shall be given
a reasonable opportunity to submit a different or additional public purpose to the City for
approval by the Fort Collins City Council in its sole discretion.
6.4 CSURF or CSURF’s Tenants must not: (a) put the Leased Premises to any use
other than the uses described in this Article without the prior written approval of the City; (b) use
the Leased Premises in any manner that violates any applicable law, rule, ordinance or
regulation; (c) permit any nuisance or disorderly conduct upon the Leased Premises, or (d)
permit any environmental condition in violation of applicable legal standards or any
environmental condition requiring removal or remediation to develop or remain on the Leased
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Premises. CSURF and the City agree to mutually and cooperatively resolve any issues or
problems that may arise out of the use of the Leased Premises by CSURF or CSURF’s Tenants.
6.5 The Leased Premises includes the “Fountain”, the “Grotto” and the “Monument”,
as depicted on Exhibit “B”. The parties’ obligations with respect to these features are described
in Section 7.4 below. CSURF may discharge water into the Grotto in compliance with any
applicable regulatory requirements until such time as the improvements on the Leased Premises
are connected to the public sanitary sewer system.
6.6 The City reserves the right to access and use the “Utility Tunnel” connected to the
basement of the Main Building, as depicted on Exhibit “E”, attached and incorporated herein by
reference, including the right to install, operate, maintain, repair and replace existing or
additional facilities within the Utility Tunnel. Entry to the Utility Tunnel is prohibited except as
specifically authorized by the City in writing. The City shall give notice to CSURF of its intent
to enter the Utility Tunnel in accordance with the provision of Article XXXI, below. The above
notwithstanding, CSURF may use a portion of the Utility Tunnel for cooling of the New
Building, subject to the following:
(a) CSURF must obtain advance written approval from the City Utility of the proposed
design and construction of any facilities CSURF proposes to place in the Utility
Tunnel, and any concerns the City Utility has about the proposed design must be
resolved to the City’s satisfaction prior to any work in the Utility Tunnel;
(b) CSURF may only use the north 400 feet of the Utility Tunnel;
(c) CSURF must construct a wall and a door at the south end of this 400 foot section,
the design for which must be approved in advance by the City Utility;
(d) the installed door must remain locked at all times, with the City’s Utility having the
only key;
(e) any modifications other than the wall shall not restrict walking access throughout the
length of the Utility Tunnel or restrict access via the existing entry door;
(f) any changes CSURF makes to the Utility Tunnel must preserve the existing lighting
system or provide an equivalent or better system with wall switches at both ends;
(g) anyone entering the Utility Tunnel must comply with all OSHA requirements,
including but not limited to confined space requirements; and
(h) until the above wall has been constructed, CSURF must contact the City Utility to
obtain access to the Utility Tunnel and must be accompanied by City Utility staff.
6.7 The City has constructed a hiking/bike trail approximately fifty (50) feet in width
along the south bank of the Cache La Poudre River (the “Trail”). The Trail right-of-way and
related improvements are not part of the Leased Premises, and the City will maintain control over
and responsibility for them. The City reserves the right to remove, replace, relocate or improve
the Trail at any time, provided such actions do not unreasonably interfere with CSURF’s rights
under this Lease. CSURF shall have no responsibility for the maintenance of the Trail or of the
Trail right-of-way. CSURF and CSURF’s Tenants are entitled to use the Trail and related
improvements in the same manner as the general public.
6.8 The City reserves a right of access to and exclusive use of the room in the
basement of the Main Building that houses a fiber optic node. The City will lock and mark the
door to this room to indicate its location. The City shall give notice to CSURF of its intent to
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access this room in accordance with the provisions of Article XXXI, below.
ARTICLE VII
Maintenance and Repair
7.1. With the exception of the areas reserved in 6.6, 6.7 and 6.8 above, CSURF will,
during the term of this Lease and at its sole expense, keep and maintain the Leased Premises,
including the grounds, Fountain, Monument, Grotto and parking lots, in a clean, orderly and safe
condition, free of litter, debris, and any unsightly or dangerous condition as required by
ordinances, resolutions, statutes and health, sanitary and police regulations. CSURF is
responsible for snow removal from sidewalks and parking areas within the Leased Premises.
CSURF will also, at its sole expense, maintain the Leased Premises including without limitation,
the exterior walls, foundation and roof of any building, plumbing, electrical, and the heating and
air conditioning system located on the Leased Premises and replace any and all plate, window
and other glass (structural or otherwise) in, on or about the Leased Premises, which may be
broken or destroyed, with glass of the same or similar quality. CSURF acknowledges that any
maintenance to these Leased Premises must be done in a manner that protects and retains the
historic significance of the City Property.
7.2 All repairs or replacements to the Leased Premises required of CSURF must be
made promptly and when necessary.
7.2.1 All replacements must be of a quality and class at least equal to the
original work.
7.2.2 Any and all repairs, replacements, modifications, improvements, additions
or other construction on or within the Leased Premises shall be performed by licensed
contractors or equivalently licensed technicians on the staff of CSU, under contract or agreement
with CSURF.
7.2.3 None of CSURF’s Tenants, as described herein, shall be authorized to
perform any of the maintenance and repair actions or activities described in this Article without
the prior written approval of CSURF.
7.3 The City will, during the term of this Lease and at its sole expense, keep and
maintain the areas reserved in 6.6, 6.7 and 6.8 above, in the same condition and under the same
restrictions as provided for CSURF in 7.1 and 7.2 above.
7.4 CSURF is responsible for all maintenance and repair of the Fountain and the
Grotto. As part of the construction of the New Building, CSURF agrees to restore the Fountain
in accordance with the Landmark Preservation requirements of the City Code. The City is
responsible for any restoration or repair of the Monument and Grotto beyond routine
maintenance as described in 7.1 above.
7.5 CSURF must neither permit nor suffer any disorderly nuisance or noise
whatsoever about the Leased Premises in violation of any applicable City ordinance or
regulation. CSURF may neither hold nor attempt to hold the City liable for any injury or
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damage, either proximate or remote, occasioned through or caused by defective electrical wiring
or the breaking or stoppage of plumbing or sewage upon the Leased Premises, whether said
breakage or stoppage results from freezing or otherwise. CSURF must not permit or suffer the
Leased Premises or the walls of the Main Building to be endangered by overloading, nor permit
the Leased Premises to be used for any purpose which would render the insurance thereon void
or insurance risks that would cause the need for insurance coverage higher than that specifically
provided for in Section 13.1 herein, without the prior written consent of the City, which consent
may be conditioned upon, without limitation, CSURF obtaining additional specific insurance
coverage for such more hazardous risks.
7.6 On default of CSURF to make any repairs or replacements required to be made by
it under this Lease, the City may, but is not required to, make such repairs or replacements for
the City’s account and the expense thereof shall constitute and be collectible by the City as
additional rent owed by CSURF due at the beginning of the next calendar year.
ARTICLE VIII
Alterations and Improvements
8.1 All alterations, additions, improvements or changes to the Leased Premises by
CSURF subsequent to the commencement of the Lease term are subject to the written approval
of the City, as owner of the City Property, and must be done in a good and workmanlike manner
without impairing the structural soundness of the Main Building, the Trail, or the Utility Tunnel.
The parties acknowledge and agree that temporary changes within the Leased Premises for the
purpose of designing and implementing research projects and experiments are not deemed
alterations or improvements, and any such experiments and projects should be removed upon
their completion or termination or the Lease, and any resulting damage to the Leased Premises
repaired.
8.1.1 Any and all repairs, replacements, modifications, improvements, additions
or other construction on or within the Leased Premises shall be performed by licensed
contractors or equivalently licensed technicians on the staff of CSU, under contract or agreement
with CSURF.
8.1.2 None of CSURF’s Tenants, as described herein, shall be authorized to
perform any of the actions or activities described in this Article, or to change the Leased
Premises in any way, without the prior written approval of CSURF and, except for the temporary
changes described in 8.1, the prior written approval of the City, as owner of the City Property.
8.1.3 All alterations, additions, improvements or changes, and any and all new
improvements, including any New Building or buildings, whether made by CSURF or CSURF’s
Tenants on the Leased Premises, are subject to the prior written approval of the City as owner of
the City Property. In addition, such new improvements must be in compliance with the building
and zoning laws of the City of Fort Collins applicable to a non-government-owned development,
must comply fully with any such City codes, rules, regulations, and governing processes and
with all other applicable laws, ordinances, orders, rules, regulations and requirements of all
federal, state or municipal governments and with appropriate approvals of the various
departments, commissions, boards and officers thereof as would be applicable to a non-
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government-owned development, and must comply with the “Reasonable Steps” outlined in
Exhibit “F”, attached hereto and incorporated herein by this reference. CSURF shall procure
certificates of occupancy, if required by law.
8.1.4 Such alterations, additions and improvements must not be commenced
until any contractor or subcontractor engaged for such purpose delivers to CSURF (with a copy
to the City) a certificate evidencing that proper workmen's compensation insurance is in full
force and effect, covering any persons performing such work, and that the same may not be
canceled without at least ten (10) days prior written notice to the City and CSURF.
8.1.5 Furthermore, such alterations, additions or improvements must not be
commenced until CSURF has procured and paid for all required City and other governmental
permits and authorizations of the various municipal departments and governmental subdivisions
having jurisdiction over the matter.
8.2 Any alterations or modifications proposed by CSURF involving the façade of the
Main Building, the “Fountain”, the “Grotto” or the “Monument”, must first be approved by the
City’s Landmark Preservation Commission in accordance with the ordinances, rules and
regulations of the City.
8.3 CSURF reserves the right hereby to hypothecate, pledge or use as security the
leasehold interest created by this Lease including, CSURF’s leasehold interest in any
improvement located on the Leased Premises, or CSURF’s interest in any improvement owned
by CSURF located or to be constructed on the Leased Premises, for any loan to CSURF for the
use on or benefit to the Leased Premises.
8.4 The City reserves the right, from time to time (without invalidating or modifying
this Lease), to make alterations, changes and/or additions to the “Fountain,” the “Grotto,” or the
“Monument,” located upon the Leased Premises, provided said modifications do not interfere
with CSURF’s or CSURF’s Tenants’ use of the Leased Premises. The City shall give CSURF
appropriate notice in advance, in writing, of its intentions, estimate of work state date and
estimated time of completion for such work.
8.5 CSURF acknowledges that the Main Parcel is subject to the 200 foot Poudre
River Buffer, and any development on the Main Parcel must be done in compliance with the City
Land Use Code, including but not limited to the requirements of Section 3.4.1(E) regarding
buffer zones, as now in effect or hereafter amended.
8.5.1 The parties acknowledges that certain improvements existing on the
Leased Premises as of the date of this Lease may not be in compliance with all current City Land
Use Code requirements.
8.5.2 CSURF agrees to relocate or remove the improvements comprising at least
fifty percent (50 %) of the existing Utility Court area, as generally depicted in Exhibit “G”,
attached and incorporated herein by reference, upon or prior to final completion of the New
Building. Should CSURF decide not to construct the New Building, then CSURF agrees to
relocate or remove the improvements comprising at least twenty percent (20%) of the existing
Utility Court area within five (5) years from the Effective Date. Should CSURF wish to move
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any portion of such improvements to another location within the 200 foot Poudre River Buffer,
CSURF must obtain in advance the written approval of the City as Landlord upon review of
CSURF’s plans for such relocation, as well as any necessary approvals through the City’s
development review processes.
8.5.3 On or before June 30, 2012, CSURF will remove entirely from the Leased
Premises the improvements identified on Exhibit G as the “Solix Facilities”, including any
underlying asphalt or concrete, and restore the ground cover using a native grass seed mix
approved by the City’s Parks Department. CSURF is solely responsible for all costs of removing
the Solix Facilities and restoring the site.
8.5.4 On or before December 31, 2012, the City will remove the improvements
identified on Exhibit G as the "City-owned Outbuilding" (the “Outbuilding”), at the City's sole
cost; however, should CSURF proceed with construction of the New Building, CSURF
will compensate the City for the costs of removing the Outbuilding upon commencement of such
construction and upon receipt of an invoice from the City documenting the City's costs to
remove the Outbuilding.
The City owned outbuilding and other improvements installed by CSU as indicated on Exhibit G
will be removed by CSURF prior to completion of the New Building; provided however, in the
event that CSURF does not go forward with construction of the New Building, it will not be
obligated to remove the outbuildings and other improvements as described above.
8.6 No changes or alterations may be undertaken by CSURF unless there is
conspicuously placed on the Leased Premises the following notice:
NOTICE
Notice is hereby given pursuant to section 38-22-105(2), C.R.S., that the
owners of the within premises have not ordered any construction or
reconstruction of the improvements on these premises; and the owners'
interest in the premises shall not be subject to any lien on account of any
construction, alteration, removal, addition, repair or other improvements of
the premises.
8.7 Where the City’s approval, as owner of City Property, is required under this
Article VIII, a response shall be provided to CSURF within a reasonable period of time
following receipt from CSURF of all necessary information related to the request for
approval. This time period shall not exceed thirty (30) days unless the City determines
that approval by the City Council is necessary or appropriate, in which case the City shall
have sixty (60) days to provide its approval.
ARTICLE IX
Expiration or Termination of Lease
9.1 At the expiration of this Lease, whether at the end of the Initial Term or at the end
of one or both Extended Terms as applicable, or upon termination of the Lease because of a
default by CSURF pursuant to Article XXI below, all improvements made on or to the Leased
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Premises by or on behalf of CSURF shall become the property of the City, free and clear of all
mortgages, deeds of trust, and similar security interests encumbering the leasehold interest of
CSURF or such improvements. At such time, CSURF agrees to execute any reasonable
documentation evidencing such transfer as may be reasonably required by the City and deliver
said documents to the City. The cost of any recordation of such documents shall be at the sole
cost and expense of the City.
9.1.1 The Main Building is and shall remain the sole property of the City and no
document of transfer from CSURF to the City shall be required hereunder.
9.1.2 All trade fixtures and equipment installed by CSURF or CSURF’s Tenants
shall be removed from the Leased Premises prior to the transfer of title to the City as herein
provided, or any or all of such items remaining at the expiration herein defined shall become the
property of the City and CSURF or CSURF’s Tenants shall execute such documents of transfer
as required by law.
9.2 In the event of a termination of this Lease by CSURF because of a default by the
City under any provision hereof prior to the end of eighty (80) years from and after the Effective
Date of this Lease, then and in that event, the City shall compensate CSURF for the value of the
New Building and additions thereto as follows: During the first twenty (20) years of the Initial
Term, the purchase price shall be the fair market value of the New Building and additions thereto
as of the date of termination, as established by an MAI appraisal. For the remainder of the Initial
Term and the Extended Term, the City shall compensate CSURF for the New Building and any
additions thereto at the appraised fair market value of the same, reduced by the annual fair
market rent of a comparable ground lease for premises similar to the area upon which the
improvements were constructed (as determined by the appraiser), less the actual rent paid by
CSURF to the City hereunder, for each complete year of the Lease that has elapsed from the
Effective Date until the date of default by the City.
9.2.1 All trade fixtures and equipment installed by CSURF or CSURF’s Tenants
shall be removed from the Leased Premises prior to the transfer of title to the City as herein
provided, or any or all of such items remaining at the expiration herein defined shall become the
property of the City and CSURF or CSURF’s Tenants shall execute such documents of transfer
as required by law.
ARTICLE X
Covenant of Title and Quiet Enjoyment
10.1 The City covenants that it is well seized of and has good title to lease the Leased
Premises and does warrant and will defend the title thereto.
ARTICLE XI
Taxes, Real and Personal
11.1 During the term of this Lease, CSURF is responsible for payment of the real
property taxes and assessments, if any, that may be lawfully imposed upon the Leased Premises.
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11.2 CSURF will pay or ensure the payment of all sales and use taxes, if any, that may
be imposed as the result of the business conducted on the Leased Premises and all personal
property taxes assessed against personal property situated thereon during the term hereof.
11.3 In default of the payment of any such taxes by CSURF, the City may pay the
same (but shall be under no obligation to do so), and CSURF will reimburse the City for the
amount so paid no later than the fifth business day of the next calendar year. However, it is
understood that by paying any such amount, the City does not waive any of its rights hereunder
related to such default.
11.4 CSURF is not required to pay any tax, assessment, tax lien or other imposition or
charge upon or against the Leased Premises or any part thereof or the improvements at any time
situated thereon so long as CSURF, in good faith and with due diligence, contests the same or
the validity thereof by appropriate legal proceedings, which have the effect of preventing the
collection of the tax, assessment, tax lien or other imposition or charge so contested, provided
that, pending any such legal proceedings, CSURF gives the City such reasonable security as may
be demanded by the City to insure payment of the amount of the tax, assessment, tax lien or
other imposition or charge and all interest and penalties thereon.
ARTICLE XII
Right of First Refusal
12.1 If at any time during the Initial Term or any Extended Term of this Lease, the
City shall decide to accept an offer (the “Offer”) from any potential purchaser to purchase the
City’s fee interest in the Leased Premises (the “Transferred Rights”), the City shall provide
CSURF with written notice of and a copy of such Offer. CSURF shall have the right to purchase
the Transferred Rights on the same terms and conditions contained in the Offer by providing
notice of such election to the City within thirty (30) days from the date that the City received said
Offer (the “Election Period”). Upon such election by the CSURF, the City and the CSURF agree
to act in good faith to consummate an agreement for the Transferred Rights incorporating the
express terms of such Offer and other customary terms and provisions for similar transactions of
similar commercial property located in the same geographic area as the Leased Premises (the
“Transfer Agreement”); provided, that in the event (a) CSURF shall fail and/or refuse to deliver
to the City written notice of the CSURF’s election to accept the Transferred Rights within the
Election Period, or (b) CSURF and the City do not execute and deliver a Transfer Agreement in
form and content acceptable to both parties within thirty (30) days from the date of receipt by
the City of the CSURF’s election to accept the Transferred Rights, the City shall be free to
transfer the Transferred Rights to the Offeror pursuant to the terms of the Offer (but not on
materially different financial terms), subject to this Lease.
12.1.1 CSURF’s decision not to accept a transfer of the Transferred Rights on the
same terms and conditions of any Offer shall not waive the City’s right to accept a transfer of the
Transferred Rights on the same terms and conditions of any other Offers.
ARTICLE XIII
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Insurance
13.1 CSURF and CSURF’s Tenants will, during the term of this Lease, procure, pay
for and keep in full force and effect a policy of commercial general liability insurance and
casualty insurance covering the improvements and the Leased Premises insuring CSURF in an
amount not less than One Million Dollars ($1,000,000) covering bodily injury, including death to
persons, personal injury and property damage liability arising out of a single occurrence. Such
coverage shall include, without limitation, legal liability of the insureds for property damage,
bodily injuries and deaths of persons in connection with the operation, maintenance or use of the
Leased Premises (including acts or omissions of CSURF). The amount of casualty insurance
must be sufficient to cover all improvements made to the Leased Premises by CSURF and
CSURF’s Tenants, including the New Building. Upon renewal of the Lease, the types and
amounts of required insurance may be reviewed by the parties and adjusted, if necessary, to meet
current industry standards.
13.2 All policies of insurance carried by CSURF or CSURF’s Tenants with regards to
the Leased Premises, including any policies of environmental insurance, must name as insured
CSURF or CSURF’s Tenant, as appropriate, and name the City as an additional insured. The
policy or policies must contain a provision that the policy or policies cannot be canceled or
materially altered either by the insureds or the insurance company until thirty (30) days prior
written notice thereof is given to the insureds and the City. Upon issuance or renewal of any
such insurance policy, the insureds must furnish a certificate of insurance showing evidence of
coverage that names the City of Fort Collins as additional insured.
13.3 Any insurance policy purchased by CSURF or CSURF’s Tenants must be written
by an insurance carrier with a current rating by Best's Insurance Reports of "A" (excellent) or
better and a financial rating of "X" or better or such equivalent classification as may hereinafter
be required customarily for properties similarly situated, and must be authorized by law to do
business in the State of Colorado.
13.4 Notwithstanding anything to the contrary contained herein, CSURF's obligation to
carry insurance as provided herein may be brought within the coverage of a “blanket” policy or
policies of insurance carried and maintained by CSURF, so long as such policy or policies
segregate the amount of coverage applicable to the Leased Premises. In the event that CSURF
fails to procure, maintain and/or pay for at the times and for the duration specified herein any
insurance required by this Lease, or fail to carry insurance required by law or governmental
regulation, the City may (but without obligation to do so) at any time or from time to time and
without notice, procure such insurance and pay the premiums therefore. In such event, CSURF
must repay the City all sums so paid by the City, together with interest thereon and any costs or
expenses incurred by the City in connection therewith, within ten (10) days following the City’s
written demand to CSURF for such payment.
13.5 Should CSU become a CSURF Tenant, CSU may comply with any provision of
this Lease regarding Insurance under this Article in any lawful manner applicable to such
institutions of the State of Colorado, meeting the intents and purposes stated within this Article.
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ARTICLE XIV
Utilities
14.1 CSURF agrees to pay all charges for electricity, sewer, gas, light, power, trash
removal, janitorial services, telephone and other communication services used, rendered or
supplied upon, to, or in the Leased Premises. To the extent permitted by law, CSURF agrees to
indemnify the City against any and all liability or damages on such account. CSURF will pay all
such utility charges before the date the same become delinquent.
ARTICLE XV
Signs
15.1 CSURF may not affix, erect or maintain on the Leased Premises any permanent
sign or advertisement, not already on the Leased Premises on the date of the signing of this
Agreement, without first obtaining the City’s approval as to the sign or advertisement to be
erected on the Leased Premises. Any such sign must comply with all applicable laws and City of
Fort Collins regulations. The cost of erection and maintenance of such sign or advertisement is
the responsibility of CSURF.
ARTICLE XVI
Subletting and Assignment
16.1 Except as provided in Section 16.2 below, CSURF may not sublease or otherwise
allow occupation of all or any part of the Leased Premises, or assign this Lease, any interest or
any part thereof, or any right or privilege appurtenant to the Lease or the Leased Premises
without the prior written consent of the City, such consent not to be unreasonably withheld. If
the City does not approve or disapprove the proposed sublease, assignment or occupation in
writing within fifteen (15) business days of receipt, the City’s approval is deemed given. A
consent to one assignment, sublease or occupation shall not be construed as a consent to any
subsequent assignment, sublease or occupation. Unless such written consent thereto has been
obtained, any assignment or transfer or attempted assignment or transfer of this Lease or any
interest therein, or sublease or occupancy of all or any part of the Leased Premises, either by the
voluntary or involuntary act of CSURF, may, at the option of the City, terminate this Lease; and
any such purported assignment, transfer, sublease or occupancy without such consent shall be
null and void. Such consent does not relieve CSURF from any obligation under this Lease
unless the City expressly agrees in writing to relieve CSURF from such obligation.
16.2 CSURF may assign the Lease to CSU, or sublease or otherwise allow occupation
of all or any part of the Leased Premises to CSU or any person, persons or entity working for
CSURF or CSU or their subsidiary departments, programs or organizations (“CSURF
Affiliates”) for any use consistent with Article VI, which has been approved by CSURF in
writing, without the consent of, but with prior notice to, the City. Assignment of the Lease to a
CSURF Affiliate other than CSU requires prior written notice to and the consent of the City,
which consent will not be unreasonably withheld.
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16.2.1 Written notice to the City of CSURF’s intention to sublease, or allow
occupancy of all or any part of the Leased Premises by CSURF Affiliates for the use and
purposes herein required, shall be clearly stated on the form shown in Exhibit “H” attached
hereto and incorporated herein by this reference, and sent to the City. CSURF’s approved
signature on any form sent to the City under this provision indicates CSURF’s approval of the
stated tenant, subtenant, assignee or occupier.
16.2.2 The City shall acknowledge CSURF’s intention stated on the form
referenced above, by signature thereon by an authorized representative of the City, within fifteen
(15) business days from and after the date said written notice is mailed to the City by U.S. Mail,
postage pre-paid, certified mail, with return receipt requested. If such notice is not signed by the
City’s representative or not received by CSURF within such fifteen (15) business day period,
then and in that event the City’s acknowledgment is deemed given and CSURF shall thereafter
be authorized hereunder to carry out the intention to lease, sublease, assign or occupy the Leased
Premises as stated in said written notice.
16.3 Notwithstanding any other provision of this Lease, CSURF agrees hereby to
restrict the total number of square feet of the Leased Premises, which includes the Main Building
and any New Building or buildings, to be used, subleased, assigned or occupied by any tenant,
subtenant, assignee or occupier that is not a CSURF Affiliate to not more than eighty per cent
(80%) of the aggregate useable square feet of the Leased Premises.
16.4 Each subtenant, assignee or occupant that is not a CSURF Affiliate must enter
into a written agreement with CSURF, in a form acceptable to the City, which incorporates the
applicable terms of this Lease, and in which such subtenant, sub-lessee, or occupant agrees to
comply with and be bound by the applicable terms of this Lease. CSURF must provide a copy of
all such subleases to the City. CSURF must require any such assignee or subtenant that is not a
governmental entity to agree in writing to indemnify and hold the City harmless from and against
all claims by or on behalf of any person, firm, corporation or other entity arising from such
assignee’s or subtenant’s use or occupation of the Leased Premises, any condition caused by
such assignee or subtenant on the Leased Premises, or from any action performed by such
assignee or subtenant or its agents, employees, invitees or contractors under this Lease. CSURF
must further require any assignee or subtenant that is not a governmental entity to procure, pay
for and keep in full force and effect the insurance coverage required in Article XIII, above,
naming the City as an additional insured.
16.5 The provisions of Section 16.4 notwithstanding, in the event that CSURF
subleases or assigns this Lease to a governmental entity other than CSU, the defense and
indemnification requirements of Sections 23.1, 23.2, 24.1, 24.2 and 25.2 shall apply only to the
extent permitted by law. In the event that CSURF subleases or assigns this Lease to CSU,
CSU’s obligations under the indemnification provisions listed above will be limited to claims
arising from the negligent acts or omissions of CSU and its employees, which occurred during
the performance of their duties and in the scope of their employment, except where such acts are
willful and wanton. Such claims shall be further subject to the limitations of the Colorado
Governmental Immunity Act.
16.6 Any monies or other consideration received by CSURF from such subleases,
assignments or occupancies will be used by CSURF to financially support CSURF’s approved
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activities on the Leased Premises as defined in Section 6.2 above. “Financial Support,” as used
herein, shall mean the payment by CSURF of all costs and expenses directly associated with the
operation or improvements of the Leased Premises, including, but not limited to the following:
maintenance and repair costs (Article VII herein); interest payments or amortization of principal
and interest in payments for any loans by CSURF for alterations or improvements to the Leased
Premises (Article VIII herein); real estate and personal property taxes (Article X herein);
insurance (Article XIII herein); utilities (Article XIV herein); or similar costs or expenses
associated with the use or improvement of the Leased Premises. “Financial Support” shall also
include an annual amount not to exceed the annual budgeted and utilized portion of the CSU
budget set aside for the operation and support of the Engine and Energy Conversion Laboratory,
which amount, if any, will further provide CSU with the funds and means to expand, improve, or
increase the activities of that department and related tenants, subtenants assignees or occupants
on the Leased Premises approved by CSURF Lease Agreement.
16.7 All revenue generated under the definitions of this Article and all costs and
expenses specifically defined as Financial Support above, shall be shown in an annual report (the
“Annual Report”) prepared by CSURF on a fiscal or calendar year basis, as determined by
CSURF, and provided to the City’s Operation Services Director and Finance Director for review,
within ninety (90) days after the end of CSURF’s fiscal or calendar year. The City shall have
thirty (30) days to examine the same after receipt and to submit comments, questions,
suggestions and/or requests for further information to CSURF.
16.8 Any monies remaining from subleasing, assignment or occupancies of the Leased
Premises after the payment of those costs and expenses defined in Section 16.6. above shall be
divided be divided between CSURF and the City, fifty per cent (50%) to CSURF and fifty per
cent (50%) to the City, which amount to the City shall be “Additional Rent” to the City under
Section 3.2 above provided that the total “Additional Rent” shall not exceed the fair market
rental value of the Leased Premises for any applicable year.
ARTICLE XVII
Mechanic's Liens
17.1 CSURF will pay or cause to be paid promptly all bills and charges for material,
labor or otherwise in connection with or arising out of any alterations, additions or changes made
to the Leased Premises by CSURF or its agents or subtenants; and CSURF agrees to hold the
City free and harmless against all liens and claims of liens for such labor and materials, or either
of them, filed against the Leased Premises or any part thereof and from and against any expense
and liability in connection therewith. CSURF further agrees to discharge (either by payment or
by filing the necessary bond or otherwise) any mechanic's, materialman's or other liens against
the Leased Premises arising out of any payment due or alleged to be due for any work, labor,
services, materials or supplies claimed to have been furnished at CSURF's request in, on or about
the Leased Premises and to indemnify the City against any lien or claim of lien attached to or
upon the Leased Premises or any part thereof by reason of any act or omission on CSURF's part.
CSURF shall, however, have the right to contest any mechanic's liens or claims filed against the
Leased Premises, provided CSURF shall diligently prosecute any such contest and at all times
effectively stay or prevent any sale of the Leased Premises under execution or otherwise and pay
or otherwise satisfy any final judgment adjudging or enforcing such contested lien and thereafter
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procure record satisfaction or release thereof. CSURF also agrees in any such contest, at
CSURF's cost and expense, to defend the same on behalf of the City.
ARTICLE XVIII
Condemnation
18.1 If, during the term of this Lease: (a) the title to the whole or substantially all of the
Leased Premises is taken; or (b) if the Leased Premises are deprived of adequate ingress or
egress to or from all public streets and highways abutting the Leased Premises, and as the result
of the exercise of the power of eminent domain (hereinafter referred to as “proceedings”)
CSURF cannot reasonably operate in the remainder of the Leased Premises the businesses being
conducted on the Leased Premises at the time of such taking, then this Lease shall terminate as of
the date of such taking pursuant to such proceedings. For the purpose of construing the
provisions of this Article, “proceedings” include any negotiated settlement of any matter
involving a condemnation; and a “taking” is deemed to occur when the governmental authority
acquires title to the Leased Premises or possession thereof, or any portion of the Leased
Premises, whichever first occurs.
18.2 If, during the term of this Lease, title to less than the whole or title to less than
substantially all of the Leased Premises is taken in any such proceedings and CSURF can
reasonably operate in the remainder of the Leased Premises the business being conducted on the
Leased Premises at the time of such taking, this Lease will not terminate; and the rental
thereafter due and payable by CSURF shall not be reduced.
18.3 All damages awarded for any taking described in this Article that affects the Main
Building are the property of the City, except to the extent that any amount thereof is specifically
attributable to CSURF’s or CSU’s equipment or trade fixtures to the extent that the City is
permitted by law to recover any damages it may sustain as the result of such taking, and all
damages awarded for any taking described in this Article that affects any other improvement,
alteration, addition, or equipment or trade fixture owned by CSURF, CSU or CSURF’s Tenants,
shall belong to CSURF, to the extent that CSURF is permitted by law to recover any damages it
may sustain as the result of such taking.
ARTICLE XIX
Total or Partial Destruction
19.1 If, during the term of this Lease, the Main Building or any part thereof is
destroyed or so damaged by fire or other casualty so as to become untenantable, then, at the
option of CSURF, that portion of this Lease pertaining to the Main Building shall become null
and void from the date of such damage or destruction, and CSURF shall immediately remove its
personal property from the Main Building and surrender the Main Building and its interest
therein to the City, provided, however, that CSURF shall exercise such option to so terminate a
portion of this Lease by notice in writing delivered to the City within thirty (30) days after such
damage or destruction. In the event CSURF does not elect to terminate this Lease pertaining to
the Main Building, this Lease shall continue in full force and effect, subject to subparagraph
19.1.1 below.
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19.1.1 If CSURF does not elect to terminate this Lease as stated above, the City
shall have the option to terminate that portion of this Lease pertaining to the Main Building or
repair the Main Building with all reasonable speed, placing the same in as good a condition as it
was at the time just prior to the damage or destruction, and for that purpose may enter upon the
Leased Premises. The City shall exercise such option to so terminate a portion of this Lease by
notice in writing delivered to CSURF within thirty (30) days after such damage or destruction.
19.1.2 If the Main Building is only slightly damaged by fire or the elements so as
to not render the same untenantable and unfit for occupancy, then the City will repair the same
with all reasonable speed. No compensation or claim shall be made by or allowed to CSURF by
reason of any inconvenience or annoyance arising from the necessity of repairing any portion of
the Leased Premises, however the necessity may occur.
19.1.3 Whether the City chooses to terminate the Lease or to repair the Main
Building, CSURF shall remove all merchandise, furniture, furnishings, fixtures, equipment and
other items of its personal property located within the affected areas within twenty-five (25) days
after the request is made by the City, in writing.
19.1.4 If the damage to the Main Building is the result of the possession, use or
occupation of the Leased Premises by CSURF, its employees, agents, sub-tenants or assigns, the
cost of any repairs contemplated by this section 19.1 will be the responsibility of CSURF.
19.2 If, during the term of this Lease, the Leased Premises, any New Building, or any
part of the Leased Premises, except the Main Building, is destroyed or so damaged by fire or
other casualty so as to become untenantable, then, at the option of CSURF, the term hereby
created shall cease, this Lease shall become null and void from the date of such damage or
destruction, and CSURF shall immediately surrender the Leased Premises and its interest therein
to the City, provided, however, that CSURF shall exercise such option to so terminate this Lease
by notice in writing delivered to the City within thirty (30) days after such damage or
destruction, and provided that CSURF shall remove its property, including any damaged
improvements not owned by the City, from the Leased Premises, unless otherwise agreed in
writing by the City. In the event CSURF does not elect to terminate this Lease, this Lease shall
continue in full force and effect; and CSURF will repair the Leased Premises with all reasonable
speed, placing the same in as good a condition as it was at the time just prior to the damage or
destruction, except that in these circumstances CSURF has no obligation to replace the Metal
Outbuilding. Any repairs to or replacement of any portion of the Leased Premises except the
Main Building will be at CSURF’s sole expense. If the Leased Premises is only slightly injured
by fire or the elements so as to not render the same untenantable and unfit for occupancy, then
CSURF will repair the same with all reasonable speed.
ARTICLE XX
Holding Over
20.1 Any holding over after the expiration of the term of this Lease is prohibited
without prior approval by the Fort Collins City Council.
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ARTICLE XXI
Default of Lessee
21.1 If any one or more of the following events (herein referred to as “an event of
default”) happens:
(a) CSURF defaults in the due and punctual payment for the rent or any other
amounts required to be paid hereunder and such default continues for thirty (30) days
after the receipt of written notice from the City; or
(b) Either party neglects or fails to perform or observe any of such party’s other
covenants or obligations under this Lease, and fails to remedy the same within thirty
(30)days after receiving from the non-defaulting party written notice specifying such
neglect or failure; or within such period, if any, as may be reasonably required to cure
such default if it is of such nature that it cannot be cured within said thirty (30) day
period, provided that the defaulting party commences to effect such cure within said
thirty (30) days and proceeds with due diligence to complete said cure.
Then, and in any one or more such events, the non-defaulting party has the right, at its election
and while such event of default continues, to give the defaulting party written notice of the non-
defaulting party’s intention to terminate this Lease on the date of such given notice or any later
date specified therein; and on such specified date, CSURF's right to possession of the Leased
Premises will cease; and this Lease will thereupon be terminated.
21.2 The City reserves the right to make any payments or perform any action required
hereunder by CSURF (but is not required to do so); and all amounts expended by the City,
together with interest at the rate of six percent (6%) per annum, will be due and payable by
CSURF thirty (30) days after receiving notice from the City of the amount due.
ARTICLE XXII
Interest and Late Charges
(Intentionally Omitted)
ARTICLE XXIII
Attorneys' Fees
23.1 CSURF agrees to pay and indemnify the City against all legal costs and charges,
including attorneys’ fees, lawfully and reasonably incurred in obtaining possession of the Leased
Premises after default of CSURF, or incurred after CSURF surrenders possession upon the
expiration or sooner termination of this Lease, or incurred in enforcing any covenant of CSURF
herein contained or any right granted to the City.
23.2 In the event of any arbitration or litigation relating to this Lease, the arbitrator or
court shall award to the prevailing party all reasonable costs and expenses, including attorney
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and legal fees.
ARTICLE XXIV
Lessee to Save City Harmless
24.1 CSURF will indemnify, release, and hold the City harmless from all claims,
demands, judgments, costs, and expenses, including attorneys' fees, arising out of any accident or
occurrence causing injury to any person or property whomsoever or whatsoever due directly or
indirectly to the condition of the Leased Premises or the use or neglect of the Leased Premises by
CSURF, its agents, employees, sub-lessees and business invitees or any person or persons (and
their agents, employees, and business invitees) holding under the Lessee, unless such accident or
occurrence results from any tortious misconduct or negligent act or omission on the part of the
City, its agents and employees.
24.2 CSURF will further indemnify, release and hold the City harmless from any
damages and all penalties arising out of any failure of CSURF to comply with all of the
requirements and provisions of this Lease Agreement. CSURF covenants that it will keep and
save the City and the City’s interest in and to the Leased Premises forever harmless from any
penalty, damage or charge imposed by any violation of any laws, whether occasioned by an act
of neglect of CSURF or by another or others in the Leased Premises holding under or through
CSURF.
ARTICLE XXV
Hazardous Material
25.1 As used herein, the term “Hazardous Material” means any hazardous or toxic
substance, material or waste which is or becomes regulated by any local governmental authority,
the state of Colorado or the United states Government in amounts that are subject to regulation.
The term “hazardous material” includes, without limitation, any material or substance that is: (i)
defined as a “hazardous substance” under appropriate state law provisions; (ii) petroleum and
petroleum products; (iii) asbestos; (iv) polychlorinated biphenyls (PCBs); (v) designated as
“hazardous substance” pursuant to section 311 of the Federal Water Pollution Control Act (33
U.S.C. section 1321); (vi) defined as “hazardous waste” pursuant to section 1004 of the Federal
Resource Conservation and Recovery Act (42 U.S.C. Section 6903); (vii) defined as a
“hazardous substance” pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. Section 9601); or (viii) defined as a “regulated
substance” pursuant to Subchapter IX, Solid Waste Disposal Act (Regulation of Underground
Storage Tanks) (42 U.S.C. Section 6991).
25.2 CSURF shall not cause or permit any Hazardous Material to be brought upon,
kept or used in or about the Leased Premises by CSURF, its agents, employees, contractors or
invitees, without the prior written consent of the City, which the City shall not unreasonably
withhold as long as CSURF demonstrates to the City’s reasonable satisfaction that such
hazardous material is necessary or useful to CSURF’s activities on the Leased Premises as
described in Article VI, and will be used, kept and stored in a manner which complies with all
laws regulating any such Hazardous Material. If CSURF breaches the obligation stated in the
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preceding sentence, or, if the presence of Hazardous Material on the Leased Premises caused or
permitted by CSURF results in contamination of the Leased Premises or if contamination of the
Leased Premises by Hazardous Material otherwise occurs for which CSURF is legally liable to
the City for damage resulting therefrom, then CSURF shall indemnify, defend and hold the City
harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses
(including, without limitation, diminution value of the Leased Premises, damages for the loss or
restriction on use of rentable or usable space or of any amenity of the Leased Premises, damages,
arising from adverse impact or marketing of space, and sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees) which arise during or after the Lease term as a
result of such contamination. Without limiting the foregoing, if the presence of any Hazardous
Material on the Leased Premises caused or permitted by CSURF results in any contamination of
the Leased Premises, CSURF shall promptly take all actions at its sole expense as are necessary
to return the Leased Premises to the condition existing prior to the introduction of any such
Hazardous Material to the Leased Premises; provided that the City’s approval of such action
shall first be obtained, which approval shall not be unreasonably withheld so long as such action
would not potentially have any material adverse affect on the Leased Premises.
ARTICLE XXVI
Environmental Concerns
26.1 By executing this Lease, CSURF is deemed to have accepted the Leased Premises
in their present condition “as is”. CSURF acknowledges that the Leased Premises, in their
present condition, comply fully with the City’s covenants and obligations hereunder.
26.2 The parties agree to the following times regarding responsibility for any
environmental contamination found or caused:
26.2.1 The City shall be responsible for the remediation and clean up of any such
contamination resulting from the City’s occupancy and use of the City Property prior to February
15, 1994;
26.2.2 CSU shall be responsible for the remediation and cleanup of any such
contamination resulting from CSU’s occupancy and use of the Leased Premises after February
15, 1994 and up to the Effective Date of this Lease Agreement.
26.2.3 CSURF shall be responsible for the remediation and cleanup of any such
contamination resulting from CSURF’s occupancy and use of the Leased Premises from and
after the Effective Date of this Lease Agreement, excepting therefrom any contamination caused
or resulting from CSU’s use and occupancy either prior to the Effective Date of this Lease or
during any occupancy or use of the Leased Premises as a tenant of CSURF, which shall be the
responsibility of CSU, as herein contemplated. CSURF acknowledges and agrees that it is
responsible for meeting all applicable legal and regulatory requirements for the proper removal,
remediation or cleanup, or special management, handling or disposal of any materials handled or
disturbed by CSURF or CSURF’s Tenants on the Leased Premises, during construction of
improvements or otherwise. CSURF shall not, however, be responsible for removal or
remediation of soil or groundwater contamination not resulting from CSURF’s occupancy and
use of the Leased Premises, except as required for CSURF’s construction of improvements or
Draft Lease – 1-17-12
22
other use of the Leased Premises.
26.2.4 Except as described in Section 26.3 below, should any party find or
become aware of any such environmental contamination during the term of this Lease, such
party shall inform the other parties hereto of such discovery or determination, by letter mailed to
the addresses of the parties shown herein, regarding: the nature and extent of the contamination
found or caused; the party responsible for such contamination based on the above, if that
information can be readily determined; the scope of remediation needed to clean such
contamination from the Leased Premises, if known; the time needed to conduct and complete an
investigation of such contamination, remediation, or clean up, if known; and any other
provisions suitable for the continued undisturbed and peaceable use and occupancy of the Leased
Premises by CSURF or CSURF’s Tenants, or for the removal or remediation of any Hazardous
Material or environmental condition exceeding applicable regulatory standards, posing a risk to
human health or the environment, occurring on the Leased Premises.
26.2.5 No later than sixty (60) days from and after the date of the letter informing
the parties hereto of the contamination found or caused, as shown above, the parties hereto, or
their designated representatives, shall meet and determine the nature and extent of the
contamination, the responsibilities for the remediation or cleanup of that contamination, the time
to accomplish the remediation or cleanup and other provisions necessary to the restoration of the
Leased Premises, and reduce the same to writing to be signed by all parties hereto. In the event
that the parties are unable to agree upon the allocation of responsibility for such remediation or
cleanup, the parties agree to participate in mediation with a mutually agreeable mediator in an
attempt to reach a voluntary resolution of the disputed issues. Unless otherwise required by the
contamination found or caused, the responsible party or parties shall complete remediation
and/or cleanup of the contamination within one hundred eighty (180) days from and after the
date of the agreement of the parties, as herein provided.
26.3 In connection with the construction of the New Building and the improvements to
the Parking Parcel contemplated in paragraph 6.1 above, CSURF will:
26.3.1 Provide any necessary worker training related to construction activities on
the Leased Premises;
26.3.2 Arrange for the proper treatment and/or disposal of waste from the Leased
Premises;
26.3.3 As authorized by the City, submit a Voluntary Clean Up Program
Application (“VCUP”) satisfactory to the City to the Colorado Department of Public Health and
Environment (“CDPHE”) for the area of construction;
26.3.4 Comply with the resulting CDPHE approved Soil Characterization and
Management Plan (“SCMP”); and
26.3.5 Cooperate with the City in coordinating with and confirming the
acceptability of the general design and manner of construction of the New Building and other
related improvements to the interested parties under the Administrative Order on Consent (as set
forth in Exhibit F hereto), and provide periodic updates on the construction to said interested
Draft Lease – 1-17-12
23
parties.
Notwithstanding the foregoing, any clean-up and/or remediation of the Leased Premises which
may be required by any state or federal law, regulation, order or otherwise, that is not located in
the area of construction will not be the responsibility of CSURF other than as set forth in Section
26.2.3 above.
26.3.6 Should CSURF decide not to build the New Building as a result of issues
with environmental contamination on the Leased Premises, CSURF shall have the option to
terminate this Lease upon ninety (90) days notice to the City.
26.4 In connection with the preparation of plans required by or intended to comply
with applicable federal or state environmental regulations, CSURF shall coordinate with the City
so as to ensure that any such plans address any shared use of the Leased Premises in a manner
satisfactory to the City. For example, in connection with the development and implementation of
Spill Prevention, Control and Countermeasures plans as may be required by federal or state law,
CSURF shall coordinate with the City to ensure that any City facilities on the Leased Premises
are properly reflected within said plans,
26.5 In order to provide continuing communication and coordination regarding the
environmental obligations related to the Leased Premises, the parties shall annually convene a
meeting of representatives, to include representatives of the City, CSURF and CSU. At the
meeting, CSURF will provide the City with information about all CSURF Tenants directly using
or responsible for any processes, materials handling, or site maintenance involving regulated
materials or procedures or described in any approved plan described herein or environmental
compliance requirement applicable to the Leased Premises pursuant to this Lease. CSURF will
ensure that all CSURF Tenants are kept informed of and comply with all environmental
requirements and obligations related to the Leased Premises.
ARTICLE XXVII
Notices
27.1 Any notice or other communication relating to this Lease must be given by one
party to the other at its respective address as set forth below by hand delivery; commercial
carrier; or U.S. mail. The notice or other communication will be effective on the date it is
delivered or on the third business day after being sent, whichever comes first.
If to the City, to:
Real Estate Services Manager
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522-0580
With a copy to:
City Attorney’s Office
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24
City of Fort Collins
PO Box 580
Fort Collins, CO 80522-0580
If to CSU, to:
CSU Real Estate Office
Mail Code 6009
Colorado State University
Fort Collins, CO 80523
With a copy to:
CSU System
General Counsel Office
Colorado State University
01 Administration Building
Fort Collins, CO 80523
If to CSURF:
CSURF Real Estate Office
PO Box 483
Fort Collins, CO 80522
ARTICLE XXVIII
Parking
28.1 CSURF is solely responsible for the costs of developing parking areas on the
Leased Premises and for obtaining any necessary regulatory approvals or permits for such
parking. As additional consideration for the lease of the Parking Parcel, CSURF agrees that if it
makes parking improvements on the Parking Parcel the City can use such parking for public
purposes at any time other than 8:00 a.m. to 5:00 p.m. Monday through Friday. The City will
provide signage for the Parking Parcel regarding the restrictions on public parking. In addition,
CSURF agrees to work cooperatively with the City to identify possible parking spots on the
Main Parcel that could be made available for public parking at times and under conditions
mutually acceptable to the parties.
ARTICLE XXIX
Americans with-Disabilities Act (ADA)
29.1 CSURF will comply with all Federal, State and local laws, including the
requirements of the Americans with Disabilities Act (ADA). The City does not represent that the
Leased Premises meet the requirements of the ADA for the purposes of Lessee's intended use of
the Leased Premises.
Draft Lease – 1-17-12
25
ARTICLE XXX
Time of the Essence
30.1 Time is of the essence of this Agreement and each and every provision hereof.
ARTICLE XXXI
Landlord’s Right of Entry
31.1 During this term of this Lease, the City reserves the right at all reasonable times
and with reasonable notice of not less than twenty four (24) hours, and at all times during
emergencies, for the City or the City’s agents to enter the Leased Premises for the purpose of
inspecting and examining the same, or to show the same to prospective purchasers or tenants, or
to make such repairs, alterations, improvements or additions as the City may deem necessary or
desirable. During the ninety days prior to the expiration of the term of this Lease or any renewal
term, the City may exhibit the Leased Premises, with prior notice and so as not to interfere with
regular use of the space, to prospective tenants or purchasers, and place upon the Leased
Premises, the usual notice advertising the Leased Premises for sale or lease, as the case may be,
which notices CSURF shall permit to remain thereon without molestation. The City reserves the
right at all times to enter the Leased Premises for purposes of accessing those portions of the
Leased Premises reserved to the City in Article VI. In the event of an emergency to protect or
minimize the risk of harm to life or property, if CSURF’s designated representative shall not be
personally present to open and permit an entry into said premises, at any time, when for any
reason an entry therein shall be necessary or permissible, the City or City’s agents may enter the
same by a master key or may forcibly enter the same, without rendering the City or such agents
liable therefore, and without in any manner affecting the obligations and covenants of this Lease.
Nothing herein contained, however, shall be deemed or construed to impose upon the City any
obligation, responsibility, or liability whatsoever for the care, maintenance or repair of the
building or any part thereof, except as otherwise herein specifically provided.
ARTICLE XXXII
Miscellaneous
32.1 Words of the masculine gender include the feminine and neuter genders; and
when the sentence so indicates, words of the neuter gender refer to any gender. Words in the
singular include the plural and vice versa.
32.2 This Lease shall be construed according to its fair meaning and in such a manner
as to comply with all applicable charters, constitutions and laws, and as if prepared by both
parties hereto, and is deemed to be and contain the entire understanding and agreement between
the parties hereto. There should be deemed to be no other terms, conditions, promises,
understandings, statements or representations, express or implied, concerning this Lease unless
set forth in writing and signed by all parties hereto.
32.3 The section headings used herein are for convenience of reference only and in no
Draft Lease – 1-17-12
26
way define, limit or prescribe the scope or intent of any provision under this Lease.
32.4 Subject to the provisions hereof, the benefits of this Lease and the burdens
hereunder shall inure to and be binding upon the parties hereto and their respective agents,
successors and permitted assigns.
32.5 No waivers by any party hereto of any one or more of the terms, covenants,
conditions and agreements of this Lease shall be deemed to imply or constitute a waiver of any
succeeding or other breach hereunder; and the failure of any party to insist upon strict
performance of the terms, conditions, covenants and agreements herein contained or any of them
does not constitute a waiver or relinquishment of any party’s rights thereafter to enforce any such
default or term, condition, covenant or agreement; and the same will continue in full force and
effect.
32.6 The remedies of the parties under this Lease are cumulative, and no one of them
shall be construed as exclusive of any other or of any other remedy provided by law. This Lease
will be governed by and its terms construed under the laws of the state of Colorado.
32.7 The City reserves the right to grant such utility easements and other easements as
it desires over, across and under portions of the City Property so long as such easements do not
unreasonably interfere with CSURF’s continuing use of the Leased Premises.
32.8 At any time, and from time to time, CSURF agrees, upon request in writing from
the City, to execute, acknowledge and deliver to the City a statement in writing certifying that
this Lease is unmodified and in full force and effect (or if there have been modifications, that the
same is in full force and effect as modified and stating the modifications) and the date to which
the rent and other charges have been paid.
32.9 No payment by CSURF or receipt by the City of a lesser amount than the rental
herein stipulated shall be deemed to be other than on account of the earliest stipulated rent; nor
shall any endorsement or statement on any check or any letter accompanying a check or payment
as rent be deemed an accord and satisfaction; and the City may accept such check or payment
without prejudice to the City’s right to recover the balance of such rent or to pursue any other
remedy available to the City.
32.10 “CSURF” as used in this Lease includes CSURF’s successors in interest to or
assigns under the Lease, except as otherwise specified in this Lease.
32.11 CSURF, upon the expiration of this Lease, either by lapse of term or otherwise,
and after the conveyance of all improvements, additions and alterations to the Leased Premises
to the City, as provided in Article IX above, agrees to peaceably surrender to the City the Leased
Premises, including the alterations, additions, improvements, changes and fixtures other than
CSURF’s movable trade fixtures, equipment and furniture, in broom-clean condition and in good
repair, as herein above provided, and except for acts of God and ordinary wear, and damage by
fire or other casualty not caused by the negligence of CSURF or anyone under CSURF’s control.
32.12 CSURF acknowledges and agrees that CSURF has not relied upon any
statements, representations, agreements or warranties except such as are expressed herein.
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32.13 Nothing contained herein shall be deemed or construed by the parties hereto nor
by any third party as creating the relationship of principal and agent or a partnership or a joint
venture between the parties hereto, it being agreed that none of the provisions set forth herein nor
any acts of the parties herein shall be deemed to create a relationship between the parties hereto
other than the relationship of lessor and lessee.
32.14 The parties hereto acknowledge that certain items of personal property may be
located within the buildings located on the Leased Premises. The City makes no representations
or warranties regarding their ownership of any such items of personal property or the condition
thereof. The parties hereto acknowledge that the said items of personal property located within
said building may belong to third parties. CSURF agrees to release, indemnify and hold the City
harmless against any liability for any improper use or disposition by CSURF of any items of
personal property belonging to third parties.
32.15 The parties acknowledge that both the City and CSU are government institutions
governed by the Colorado Governmental Immunity Act, Colo. Rev. Stat. § 24-10-101, et seq.
(the “Act”). Notwithstanding any other provision of this Lease to the contrary, no term or
condition of this Lease shall be construed or interpreted as a waiver, express or implied, of any
of the immunities, rights, benefits, protection, or other provisions of the Act , as now or hereafter
amended. The parties understand and agree that liability for claims for injuries to persons or
property arising out of negligence of the City or the State of Colorado, their respective
departments, institutions, agencies, boards, officials and employees, is controlled and limited by
the provisions of the Act, as now or hereafter amended, which provisions are hereby
incorporated and made a part of this Lease.
32.16 The obligations of the City under this Lease are subject to annual appropriation of
funds in an amount sufficient therefore by the City Council of the City of Fort Collins, in its
discretion.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed the
day and year first above written.
Draft Lease – 1-17-12
28
THE CITY:
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: __________________________
Darin Atteberry, City Manager
ATTEST:
_______________________
City Clerk
APPROVED AS TO FORM:
_______________________
Assistant City Attorney
Draft Lease – 1-17-12
29
CSU:
FOR THE BOARD OF GOVERNORS OF THE
COLORADO STATE UNIVERSITY SYSTEM,
by and through Colorado State University
By: _________________________________
Anthony A. Frank, President
APPROVED AS TO FORM:
___________________________
Associate Legal Counsel
CSURF:
THE COLORADO STATE UNIVERSITY
RESEARCH FOUNDATION
A Colorado non-profit corporation
By: ______________________________
Kathleen Henry, President/CEO
ATTEST:
___________________________
Julie Birdsall, CFO
Draft Lease – 1-17-12
EXHIBIT “D”
NEW BUILDING AND RELATED IMPROVEMENTS
Formatted: Font color: Black
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Formatted: Font: 14 pt, Bold, Font
color: Black
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EXHIBIT “E”
UTILITY TUNNEL
Formatted: Font: 14 pt, Bold, Font
color: Black
Draft Lease – 1-17-12
EXHIBIT “F”
REASONABLE STEPS IN VICINITY OF POUDRE RIVER SITE
June 2009
An area consisting of the Poudre River adjacent to the Northside Aztlan Community
Center, the Northside Aztlan Community Center property and certain additional property in that
vicinity (“the Poudre River Site”) is the subject of a CERCLA Section 104(b) Removal Action,
formally referred to as the Poudre River Site - Fort Collins, Larimer County, Colorado. The Site
ID # for that action is 08HE (The Category of Removal was Removal Action, Non-NPL, PRP-
Lead). Public Service Company of Colorado “(PSCo”) agreed to take responsibility for the
Removal Action, which included removal of coal tar contamination on the Poudre River Site,
pursuant to EPA’s Administrative Order on Consent with the City of Fort Collins, PSCo and
Schrader Oil Company, dated October 28, 2004 (the “AOC”). PSCo has completed the Removal
Action, but continues to monitor conditions in the area pursuant to the AOC.
The bona fide prospective purchaser and contiguous property owner provisions state that
a person meeting the criteria of Section 107(r) and Section 107(q) of CERCLA (Comprehensive
Environmental Response, Compensation and Liability Act), 42 U.S.C. §§ 9607(r) and 9607(q),
respectively, is protected from CERCLA liability. However, to the extent that EPA's response
action increases the fair market value of the bona fide prospective purchaser's property, EPA
may have a windfall lien on the property. The windfall lien is limited to the increase in fair
market value attributable to EPA's response action, capped by EPA's unrecovered response costs.
To qualify as a bona fide prospective purchaser or a contiguous property owner, a person must,
among other requirements, take “reasonable steps” with respect to continuing releases,
preventing threatened future releases, and preventing or limiting human, environmental, or
natural resources exposure to earlier releases.
As noted above, EPA has conducted investigations and is in the process of working with
other parties to take steps to abate the release of coal tar at the Poudre River Site. In the process,
EPA has identified a number of environmental concerns. Based on the information EPA has
evaluated as of early 2005, EPA has indicated that, for an owner of property affected by the
releases of concern, the following would be appropriate reasonable steps with respect to the coal
tar contamination found at the property. As a condition and requirement of the Lease Agreement,
the following requirements must be taken into account and complied with in connection with
actions on the Leased Premises. Additional reasonable steps may become necessary if site
conditions change or new information is discovered which necessitates further reasonable steps.
1. Minimize subsurface excavations to the extent possible.
$ Provide above-ground, rather than underground, parking facilities.
$ Use caissons, piers, pilings, and/or at-grade slab building foundations.
$ Where practicable and consistent with good engineering practices,
minimize burial depths of tanks, piping, foundations, and other
improvements.
$ During the design of underground utility installations, the design or
Draft Lease – 1-17-12
construction of new structures or demolition of an existing structure, take
into account the potential presence of the contamination that has been
delineated and, to the extent practicable and consistent with good
engineering practices, minimize excavation volumes.
$ Where practicable and consistent with good engineering practices, adopt
as a preference for sewer line maintenance and repair the application of an
in situ liner as opposed to removing and replacing the sewer line.
$ Where practicable and consistent with good engineering practices,
incorporate into new or replacement utility improvements design
measures, such as protective sleeving, choice of materials and other
features intended to minimize the need for future replacement or repair
due to effects of subsurface contaminants.
2. Monitor for NAPL in areas in which you are performing work during any excavation.
$ Use the information incorporated as part of the AOC and related
investigations, and any subsequently obtained information, to identify
areas in which NAPL may be present.
$ Sample soil and water encountered during excavations, as well as air
within work area during excavation and restoration. You are not required
to characterize the extent of any contamination, but should be
characterizing the soil and water accessed or moved during excavation, as
well as the air within and above the excavation.
$ Properly characterize any materials that are to be removed from the
excavation prior to appropriate disposal.
3. Protect workers, bystanders and building occupants.
$ Where NAPL is encountered or monitoring results indicate the presence of
NAPL at levels exceeding health based standards, require workers to wear
appropriate personal protective equipment and/or undertake engineering
controls to accomplish the same level of worker and bystander protection.
$ Provide training for workers on visual identification of NAPL as well as
on the appropriate use of personal protective equipment.
4. Prevent preferential pathways that may be created by underground work.
$ Use the information incorporated as part of the AOC and related
investigations, and any subsequently obtained information, to identify
areas in which NAPL may be present.
$ Seek professional assistance to design excavations in the identified areas
that will not change pathway and/or rate of flow of the NAPL plume.
5. Properly dispose of contaminated materials that must be removed from the excavation
in order to implement the work being performed.
$ Properly characterize any materials that are to be removed from the
excavation.
6. Identify and use properly licensed facilities for the disposal of the contaminated
materials that must be removed from the excavation.
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EXHIBIT “G”
UTILITY COURT AREA
Formatted: Font: 14 pt, Bold, Font
color: Black
Draft Lease – 1-17-12
EXHIBIT “H”
NOTICE OF INTENT TO LEASE/USE SPACE and ACKNOWLEDGMENT
Restrictive Use of Leased Premises: These premises must be used for instructional, teaching,
and laboratory and research purposes focused upon developing innovative and alternate energy
solutions, including equipment, fuels, software, operational techniques and processes, developing
and testing entrepreneurial models, and similar purposes; related office and administrative
purposes; and ancillary uses related thereto, such as outreach and extension activities,
experimentation or demonstration areas or activities, seminars and instructional uses; for the
common benefit and good of the citizens of the City; and which benefit the human condition and
achieve global impact thereby benefiting the citizens of the City, as well as the State of
Colorado.
Name: ________________________________________________
Address: __________________________
__________________________
__________________________
Contact Information:
Telephone: ________________
Cell: ________________
Fax: ________________
Email: ________________
Other: ______________________
Type of Entity: (individual, department, corporation, foundation, etc.): ____________________
Supervision by: (CSU, CSURF, or subsidiary department or organization):_________________
_____________________________________________________________________________
Purpose of building use: _________________________________________________________
Type of Occupancy: (sublease, assignment, other): ____________________________________
Amount of space needed: (in square feet): _________________
Use of space: (office, lab, lecture, other): ____________________________________________
Rental charged: _____________________
Purpose of any rental abatement/reduction: ___________________________________________
Compliance of use of space to City requirements (explain): ______________________________
______________________________________________________________________________
______________________________________________________________________________
[Signatures on following page]
Draft Lease – 1-17-12
CSURF Approval
Date: __________________ By: _____________________________
Attest:
______________________
City Acknowledgment
Date: __________________ By: _____________________________
COPY
COPY
COPY
COPY
December 20, 2011 -2- ITEM 29
Tenant: CSURF would be the tenant. The current lease to CSU dated February 15, 1994, with an amendment dated
January 13, 2005, would terminate.
Lease Term: CSURF intends to construct a new building and related improvements on the property. The “Initial
Term” of the Lease would be 40 years, with two 20 year extensions at CSURF’s sole option, if CSURF builds the New
Building. However, if CSURF does not build the New Building within eight years, the Initial Term would be 10 years
with one five year extended term at CSURF’s sole option, and up to two additional 10 year terms with the City’s
consent in its discretion. (Articles II and III)
Rent: “Base Rent” for the Initial Term of the Lease would be $1,000 and $1,000 for each extended term if CSURF
builds the New Building. If CSURF does not build the new building, there would be no additional rent paid for the five-
year extended term, and rent for each succeeding 10 year term would be $500. (Article IV)
Option to Purchase: CSURF has the option to purchase the Leased Premises in the future if the City and CSURF
can agree on terms, and subject to City Council approval. (Article V)
Uses of the Leased Premises: CSURF can build the New Building on the Main Parcel and parking improvements
on the Parking Parcel. The City has the right to approve the final plans for all improvements. The Main Parcel can
be used for instructional, teaching and laboratory and research purposes focused on developing innovative and
alternate energy solutions, developing and testing entrepreneurial models, and similar purposes. (Article VI)
Maintenance: CSURF is responsible for maintaining the Leased Premises including the Fountain, Monument and
Grotto located on the property. CSURF also agrees to restore the Fountain. The City is responsible for any restoration
of the Monument and Grotto. (Article VII)
Alterations and Improvements: All alterations, additions and improvements to the Leased Premises must be
approved by the City as owner of the property, and must comply with the “Reasonable Steps in Vicinity of Poudre River
Site” developed in accordance with the EPA’s Administrative Order on Consent for the Northside Aztlan Community
Center property cleanup. (Article VIII.)
CSURF agrees to relocate or remove improvements comprising at least 50% of the existing utility court area adjacent
to the Main Building, which lies within the Poudre River Buffer. (Article VIII)
Lease Expiration or Termination: On expiration of the Lease all improvements made by CSURF on the Leased
Premises would become the property of the City. If CSURF terminates the lease because of a default by the City, the
City would compensate CSURF for the fair market value of the New Building. (Article IX)
Right of First Refusal: If the City wants to sell its interest in the Leased Premises it must first give CSURF the
opportunity to purchase it on the same terms and conditions. (Article XII)
Utilities: CSURF will pay for all utilities used on the Leased Premises. (Article XIV)
Subletting and Assignment: CSURF can sublease portions of the Leased Premises with the City’s consent, except
that City consent is not needed for CSURF to assign the Lease to CSU or to sublease to CSURF Affiliates. Any
money CSURF receives for subleases must be used to financially support CSURF’s approved activities on the Leased
Premises. Any money left over after paying CSURF’s costs and expenses for such activities will be divided equally
between the City and CSURF, but the amount paid to the City will not exceed the fair market rental value of the Leased
Premises for any applicable year. (Article XVI)
Environmental Concerns: The City, CSU and CSURF are each responsible for remediation of any environmental
contamination on the property that results from their respective occupancies of the property. In addition, CSURF would
be responsible for proper removal, remediation or special management or handling of any materials it handles or
disturbs on the Leased Premises, during construction or otherwise. In constructing the New Building and other
improvements CSURF is responsible for proper worker training, arranging for proper treatment and disposal of waste
from the Leased Premises, and for submitting a Voluntary Clean Up Program (VCUP) application to the Colorado
Department of Public Health and Environment (CDPHE) for the area of construction and complying with the resulting
CDPHE Soil Characterization and Management Plan (SCMP). If CSURF decides not to build the New Building
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December 20, 2011 -3- ITEM 29
because of environmental contamination issues on the Leased Premises, CSURF may terminate the Lease on 90 days
notice to the City. (Article XXVI)
Parking: If CSURF makes parking improvements on the Parking Parcel the City will be able to use it for public
purposes at times other than 8:00 a.m. to 5:00 p.m. Monday through Friday. The City and CSURF will work on
identifying possible parking spots on the Main Parcel that could also be available for public parking. (Article XXVIII)
A copy of the Lease Agreement is attached (Attachment 2).
Follow-up Items from the September 27 Work Session presentation:
Fountain: CSURF is planning to move the fountain to a new location on attached Exhibit D. Staff from Historic
Preservation did not have any information that the fountain had ever been moved since it was placed at 430 North
College Avenue. Along with day to day maintenance of the fountain, CSURF must also restore the fountain to the
specifications of the Landmark Preservation Commission.
Maintenance of grotto and monument: The grotto could be used for water filtration, with the proper permits. If
CSURF does not utilize the grotto, then it will only be responsible for day-to-day maintenance of the grotto and
surrounding landscaping and the monument. Renovation of these two landmarks would be the responsibility of the
City, at its sole option and cost. If CSURF does want to utilize the grotto, it would not only be responsible for regular
maintenance, but would also be responsible to renovate the grotto and landscaping.
Removal of items in the River Buffer: Exhibit G of the Lease Agreement (Attachment 2) shows the utility court area
and the Lease Agreement specifies that this area will be reduced by at least 50%. This will be accomplished by, upon,
or prior to final completion of the New Building. The design for the new building has not been completed, so specifics
of equipment to be removed cannot be provided. Exhibit G also shows the proposed Utility Court to be moved farther
from the Poudre River, but still within the River Buffer. This is subject to the City’s development review process, and
approval by the City as property owner.
FINANCIAL / ECONOMIC IMPACTS
Regional Economic Development
• As a research institution the EECL has been awarded over $20M in research awards: these funds are used
locally to fund infrastructure at the EECL, students at CSU, research staff, etc. The EECL currently employs
a dozen professional research and support staff, as well as approximately 50 graduate and undergraduate
students
• The EECL has actively engaged in the development of “spin-off” enterprises, which have been awarded over
$55M in funding commitments. In addition these spin-off companies currently employ over 70 professional
engineers, managers, and scientists.
• Additional companies have been attracted to Fort Collins as the EECL has become an “anchor” for the clean-
tech industry
• Additional companies have been (or are in the process of being) accelerated through partnerships with the
EECL (CZero, Van Dyne Superturbo, Spirae). These companies represent additional 20-30 primary jobs in
the Fort Collins downtown area.
Typical universities will see one start-up company generated for every $100M of R&D, the best universities will see
one start-up per $25-$35M of R&D (CalTech, MIT, etc). At the EECL the ratio is 1 start-up per $7M of R&D
investment.
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December 20, 2011 -4- ITEM 29
ENVIRONMENTAL IMPACTS
A portion of the Main Parcel had been used in the past as part of a historical municipal landfill and the Parking Parcel
is a portion of the Poudre River/Aztlan site (the Brownfields site to the south of the Main Parcel). With this knowledge,
the City updated its Phase I of the Main Parcel and followed that with a Phase II Environmental Site Assessment.
Since the Parking Parcel is a part of the Poudre River/Aztlan site, CDPHE required the City to update its Soil
Characterization and Management Plan of the Poudre River/Aztlan Site. CSURF and the City have agreed to share
the costs of these reports since these reports are beneficial to both the City and CSURF.
The Phase II Assessment did identify the following: soil contamination, including arsenic, lead and asbestos;
groundwater contamination, including benzene, and poly-aromatic hydrocarbons; and, soil vapors including methane.
Although soil and groundwater contamination was identified at the site, the contamination may be managed
appropriately as to not prohibit construction of a new building and improvements.
CSURF has agreed to apply to CDPHE for a Voluntary Clean-up Plan (“VCUP”). The requirements established by
CDPHE in the VCUP process will detail to CSURF how potential contamination will be managed during the project.
CDPHE will be the primary source for information regarding management of contamination encountered during the
construction project. Such measures may include an indoor system to mitigate soil vapors from methane
contamination.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading.
ATTACHMENTS
1. Location map
2. Lease agreement, with all exhibits attached
3. Summary of September 27, 2011 Work Session
4. Powerpoint presentation
ORDINANCE NO. 183, 2011
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE LEASE OF CITY-OWNED PROPERTY AT 430 NORTH COLLEGE
AVENUE AND 100 WILLOW STREET TO THE COLORADO STATE UNIVERSITY
RESEARCH FOUNDATION
WHEREAS, the City is the owner of the property located at 430 North College Avenue, Fort
Collins, Colorado, known as the Old Power Plant (the “City Property”); and
WHEREAS, the City Property was previously used by the City’s electric utility but is no
longer needed, except incidentally, for utility purposes; and
WHEREAS, on February 15, 1994, pursuant to Ordinance No. 11, 1994, the City and
Colorado State University (CSU) entered into a lease agreement for a portion of the City Property
for up to 25 years (the “1994 Lease”); and
WHEREAS, on January 13, 2005, pursuant to Ordinance No. 123, 2004, the 1994 Lease was
modified by a First Amendment to Lease Agreement, which added a five-year renewal term and
increased the termination notice period to five years (the “2005 Amendment”); and
WHEREAS, the 1994 Lease authorized CSU to use the City Property only for laboratory and
research purposes focused upon increasing the efficiency of the internal combustion engine, and
related office, administrative, outreach, extension and instructional uses; and
WHEREAS, since 1994 CSU has been using the City Property for its Engines and Energy
Conversion Laboratory, but this program has grown in size and expanded in purpose over the years
and the Colorado State University Research Foundation (CSURF) wishes to build an additional
building on the City Property to house labs, offices and subtenant incubator companies (the “New
Building”); and
WHEREAS, through several years of discussion and negotiation, City staff and
representatives from CSU and CSURF have drafted a new lease agreement, a copy of which, dated
December 6, 2011, is on file in the office of the City Clerk and available for review (the “Lease
Agreement”); and
WHEREAS, under the Lease Agreement the City would lease to CSURF a portion of the
City Property as described on Exhibit “A”, attached and incorporated herein by reference (the “Main
Parcel”), as well as a portion of the adjacent City-owned property known as Lot 1, Northside Aztlan
Community Center, located in the 100 block of Willow Street, Fort Collins, Colorado, as described
on Exhibit “B”, attached and incorporated herein by reference (the “Parking Parcel”); the Main
Parcel and Parking Parcel are collectively referred to as the “Leased Premises”; and
WHEREAS, upon execution of the Lease Agreement CSU would relinquish all right, title
and interest in and to the City Property under the 1994 Lease and the 2005 Amendment; and
WHEREAS, key terms of the proposed Lease Agreement include the following:
• The initial term of the Lease would be 40 years with two 20-year extensions at
CSURF’s sole option if CSURF builds the New Building. If CSURF does not build
the New Building within eight years, the initial term of the Lease would be ten years
with one five-year extension in CSURF’s sole option and two additional ten-year
extensions with the City’s consent.
• CSURF would pay rent in the amount of $1,000 for the initial term of the Lease and
$1,000 for each extension unless it does not build the New Building, in which case
rent would be $1,000 for the first ten or fifteen years of the Lease and $500 for each
ten-year extension.
• CSURF would be permitted to build the New Building and related improvements on
the Main Parcel and parking improvements on the Parking Parcel, subject to the
City’s approval of the plans for the improvements.
• Upon termination of the Lease the improvements constructed by CSURF would
become the property of the City unless CSURF terminates the Lease because of a
default by the City, in which case the City would compensate CSURF for the value
of its improvements.
• CSURF would be permitted to assign the Lease, or sublease the Leased Premises, to
CSU and to sublease portions of the Leased Premises to third parties whose activities
on the Leased Premises must be consistent with the purposes of the Lease; and
WHEREAS, leasing the Leased Premises to CSURF for the uses described in the Lease
Agreement serves the valuable public purpose of developing and utilizing energy solutions; and
WHEREAS, leasing the Leased Premises to CSURF further benefits the City by reducing
the City’s costs for maintenance and utilities on the City Property; and
WHEREAS, under Section 23-111 of the City Code the City Council is authorized to sell,
convey or otherwise dispose of any and all interests in real property owned in the name of the City
provided that the City Council first finds, by ordinance, that such sale or other disposition is in the
best interests of the City and, with respect to real property that is a part of the City’s water or utility
systems, that such disposition will not materially impair the viability of the system as a whole and
will be for the benefit of the citizens of the City.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the City Council hereby finds that leasing the Leased Premises to
CSURF as provided herein serves a valuable public purpose, is in the best interests of the City, will
not impair the viability of the City’s electric utility system as a whole, and will be for the benefit of
the citizens of the City.
-2-
Section 2. That the City Manager is hereby authorized to enter into a lease agreement
with CSURF in substantially the form of the Lease Agreement that is on file in the office of the City
Clerk, together with such additional terms and conditions as the City Manager, in consultation with
the City Attorney, determines to be necessary or appropriate to protect the interests of the City or
effectuate the purposes of this Ordinance, including but not limited to any necessary changes to the
legal description of the Leased Premises, as long as such changes do not materially increase the size
or change the character of the Leased Premises.
Section 3. That as part of the Lease Agreement, CSURF is hereby authorized to enter
into subleases for portions of the Leased Premises in accordance with the terms and conditions of
the Lease Agreement.
Introduced, considered favorably on first reading, and ordered published this 20th day of
December, A.D. 2011, and to be presented for final passage on the 17th day of January, A.D. 2012.
_________________________________
Mayor
ATTEST:
_____________________________
City Clerk
Passed and adopted on final reading on the 17th day of January, A.D. 2012.
_________________________________
Mayor
ATTEST:
_____________________________
City Clerk
-3-
ADDRESS: PHONE:970.221.4158
200 S.College Ave. Suite 100
Fort Collins, CO 80524
FAX:970.221.4159
WEBSITE:
www.northemengineering.com
NORTHERN ENG I NEERING
ExhibitA
DESCRIPTION:
A portion of Lot 3 in Reservation on the Northwest Quarter of Section 12, Township 7
North, Range 69 West of the 6th P.M., lying North and West of Right of Way of the
Fort Collins Development Railway Company, less deed recorded May 3, 1994 at
Reception No. 94038222 being more particularly described as follows;
Considering the West line of Section 12 as bearing South 00°23'57" West and with all
bearings contained herein relative thereto:
Commencing at the Northwest corner of said Section 12; thence along the West line of
said Section 12, South 00°23'57" West, 482.47 feet; thence departing said West line,
South 89°36'03" East, 73.47 feet to a point on the East line of said Reception No.
94038222, said point also being the POINT OF BEGli NING; thence along the
approximate Top of Bank of Cache La Poudre River the following ten (10) courses:
(1) South 68°26'25" East, 27.26 feet;
(2) North 86°52'14" East, 40.22 feet;
(3) South 68°17'47" East, 44.32 feet;
(4) North 82°34'37" East, 118.30 feet;
(5) South 84°24'53" East, 151.12 feet;
(6) South 75°36'07" East, 63.13 feet;
(7) South 68°36'28" East, 42.92 feet;
(8) South 79°23'46" East, 50.91 feet;
(9) South 71°20'59" East, 61.83 feet;
(10) South 76°36'43" East, 63.27 feet to a point on the Northwesterly line of
Burlington Northern Railroad Right of Way; thence along said Northwesterly line,
South 57°00'09" West, 776.12 feet to a point on the East line of said Reception
No. 94038222; thence departing said Northwesterly line and along said East line, North
00°34'27" East, 521.48 feet to the POINT OF BEGINNING.
The above described easement contains 4.091 acres (178,190 square feet) more or less
and is subject to all easements and rights-of-way now on record or existing.
December 1, 2011
CNS
Sheet 1 of2
POINT OF
COMMENCEMENT
NORTHWEST CORNER
S12, T7N, R69W
EXHIBIT A
MAIN
PARCEL
178,184 sq.ft.
4.091 ac.
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LOT2
(NORTHSIDE
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COMMUNITY
CENTER)
I 50' BNRR
EASEMENT
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LOT 1
393,184 sq.ft
9.026 ac.
410 NORTH
COLLEGE, LLC
RECEPTION
No. 2003006605
WEST CORNER
S12, T7N, R89W
I (NORTHSIDE AZTLAN
I COMMUNITY CENTER)
I 361,142 sq.ft.
I 8.297 ac.
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SHEET 2 OF2
100 0 100 Feet
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( IN FEET)
1 Inch - tOO ft.
NORTH ERN
ENGINEERING
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ADDRESS: PHONE:970.221.4158
200 S.College Ave. Suite 100
Fort Collins,CO 80524
FAX:970.221.4159
WEBSITE:
www.northernengineering.com
NORTHERN
ENGINEERING
Exhibit B
DESCRIPTION:
All that portion of Lot 1, Northside Aztlan Community Center lying west of the
Burlington Northern Railroad as described at Reception No. 2000032174 being more
practically described as follows;
Considering the North line of Lots 1 and 2, Northside Aztlan Community Center as
bearing North 57°00'09" East and with all bearing contained herein relative thereto:
POINT OF BEGINNING being the Northwest comer of said Lot 1; thence along the
North line of said Lot 1, North 57°00'09" East, 261.57 feet to a point on the Westerly
line of Burlington Northern Railroad Easement; thence along said Westerly line along a
non-tangent curve concave to the Southeast having a central angle of32°28'24" with a
radius of794.49 feet and an arc length of 450.29 feet and the chord of which bears
South 16°02'11" West, 444.29 feet; thence continuing along said Westerly line, South
00°12'01" East, 148.00 feet to a point on the Southern line of said Lot 1; thence along
the South line of Lot 1 along a non-tangent curve concave to the South having a central
angle of 12°27'11" with a radius of 400.00 feet and an arc length of 86.94 feet and the
chord of which bears North 61°02'07" West, 86.77 feet to the Southwest comer of said
Lot 1; thence along the Western border of said Lot 1 the following three (3) courses:
(1) North 00°45'15" West, 190.24 feet;
(2) North 89°36'03" West, 20.14 feet;
(3) North 00°23 '57" East, 200.17 feet to the POINT OF BEGINNING.
The above described easement contains 1.159 acres (50,474 square feet) more or less
and is subject to all easements and rights-of-way now on record or existing.
November 28, 2011
CNS
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9 026 ac
No. 2003006605
N89 36'03"W
20.14'
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361,142 sq.ft.
8.297 ac.
R=400.00' L=86.94'
6=12 27'11"
Chord Bearing=N61•o2·orw
Chord Length=86.77'
SOUTH UNE OF LOT 1
(NORTHSIDE AZTLAN
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