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HomeMy WebLinkAboutRFP - 8223 OLD CREAMERY LABORATORY LEASE (4)RFP 8223 Old Creamery Laboratory Lease Page 1 of 23 REQUEST FOR PROPOSAL 8223 OLD CREAMERY LABORATORY LEASE The City of Fort Collins is requesting proposals from organizations or individuals to lease a City owned building for use as a commercial enterprise. As part of the City’s commitment to Sustainable Purchasing, proposals submission via email is preferred. Proposals shall be submitted in a single Microsoft Word or PDF file under 20MB and e-mailed to: purchasing@fcgov.com. If electing to submit hard copy proposals instead, five (5) copies, will be received at the City of Fort Collins' Purchasing Division, 215 North Mason St., 2nd floor, Fort Collins, Colorado 80524. Proposals must be received before 3:00 p.m. (our clock), January 28, 2016 and referenced as Proposal No. 8223. If delivered, they are to be sent to 215 North Mason Street, 2nd Floor, Fort Collins, Colorado 80524. If mailed, the address is P.O. Box 580, Fort Collins, 80522-0580. Please note, additional time is required for bids mailed to the PO Box to be received at the Purchasing Office. The City encourages all Disadvantaged Business Enterprises (DBEs) to submit proposals in response to all requests for proposals. No individual or business will be discriminated against on the grounds of race, color, sex, or national origin. It is the City’s policy to create a level playing field on which DBEs can compete fairly and to ensure nondiscrimination in the award and administration of all contracts. Questions concerning the scope of the bid should be directed to Project Manager, Brian Hergott at (970) 221-6804 or bhergott@fcgov.com. Questions regarding bid submittal or process should be directed to Elliot Dale, Buyer at (970) 221-6777 or edale@fcgov.com. All questions must be submitted in writing via email to Brian Hergott , with a copy to Elliot Dale, no later than 5:00 PM our clock on January 18, 2016. Questions received after this deadline will not be answered. A pre-proposal meeting will be held on January 14th at 3:00 pm in the Training Room on the second floor of Operation Services, 300 LaPorte Ave. There will be a tour of the facility following the meeting for those who are interested. A copy of the RFP may be obtained at www.rockymountainbidsystem.com. The City of Fort Collins is subject to public information laws, which permit access to most records and documents. Proprietary information in your response must be clearly identified and will be protected to the extent legally permissible. Proposals may not be marked ‘Proprietary’ in their entirety. All provisions of any contract resulting from this request for proposal will be public information. Financial Services Purchasing Division 215 N. Mason St. 2nd Floor PO Box 580 Fort Collins, CO 80522 970.221.6775 970.221.6707 fcgov.com/purchasing RFP 8223 Old Creamery Laboratory Lease Page 2 of 23 New Vendors: The City requires new vendors receiving awards from the City to fill out and submit an IRS form W-9 and to register for Direct Deposit (Electronic) payment. If needed, the W-9 form and the Vendor Direct Deposit Authorization Form can be found on the City’s Purchasing website at www.fcgov.com/purchasing under Vendor Reference Documents. Sales Prohibited/Conflict of Interest: No officer, employee, or member of City Council, shall have a financial interest in the sale to the City of any real or personal property, equipment, material, supplies or services where such officer or employee exercises directly or indirectly any decision- making authority concerning such sale or any supervisory authority over the services to be rendered. This rule also applies to subcontracts with the City. Soliciting or accepting any gift, gratuity favor, entertainment, kickback or any items of monetary value from any person who has or is seeking to do business with the City of Fort Collins is prohibited. Collusive or sham proposals: Any proposal deemed to be collusive or a sham proposal will be rejected and reported to authorities as such. Your authorized signature of this proposal assures that such proposal is genuine and is not a collusive or sham proposal. The City of Fort Collins reserves the right to reject any and all proposals and to waive any irregularities or informalities. Utilization of Award by Other Agencies: The City of Fort Collins reserves the right to allow other state and local governmental agencies, political subdivisions, and/or school districts to utilize the resulting award under all terms and conditions specified and upon agreement by all parties. Usage by any other entity shall not have a negative impact on the City of Fort Collins in the current term or in any future terms. Sustainability: Consulting firms/teams participating in the proposal are to provide an overview of the organization’s philosophy and approach to Sustainability. In no more than two (2) pages please describe how your organization strives to be sustainable in the use of materials, equipment, vehicles, fuel, recycling, office practices, etc. The City of Fort Collins incorporates the Triple Bottom Line into our decision process by including economic (or financial), environmental, and social factors in our evaluation. The selected Service Provider shall be expected to sign the City’s standard Agreement without revision prior to commencing Services (see sample attached to this Proposal). Sincerely, Gerry S. Paul Purchasing Director RFP 8223 Old Creamery Laboratory Lease Page 3 of 23 OLD CREAMERY LABORATORY (BUTTERFLY BUILDING) LEASE 212 LAPORTE AVENUE LEASE Background: The City of Fort Collins is the owner of the property at 212 LaPorte Avenue, Fort Collins CO 80521. This property was recently moved to its current location as part of the City’s project to construct a new administration building for Utilities. The building is considered a historical landmark and the process to designate it as such has been initiated. The City of Fort Collins has conducted outreach with the community to get input on what the future use of this building should be and this Request for Proposal is the next step in the process to identify a suitable tenant. The building will need to maintain the current exterior features with the exception of adding signage. The exterior will be re-painted as part of the current relocation process, but the colors have not been determined. The final colors will need to help it tie-in to the adjacent properties and will be determined by the City. The exterior building dimensions are 20’ x 20’ giving the tenant approximately 400 Sq. Ft. of interior space. The building will have power, water, gas, sewer, phone, cable and internet utilities roughed into the building and available to the new tenant if they choose. The tenant will be solely responsible for paying for all utilities, phone, cable, internet, etc. The monthly rental for this property will be negotiated with the chosen tenant. The City would consider waiving a portion of the monthly rent for a negotiated period of time to help offset any major building improvements that could be used by a future tenant. A pre-proposal meeting will be held on January 14th at 3:00 pm in the Training Room on the second floor of Operation Services, 300 LaPorte Avenue, Building B. A tour at the site to see the building will be part of this meeting so proposers can review the existing conditions and ask specific questions. Proposal Submission Requirements: 1. Tenant must provide written plan for use of property detailing the service they plan to provide and who would be served and how the property would be maintained. 2. Tenant must submit documentation detailing any history of operating this type or similar service. 3. Tenant must submit their most recent financial audit or equivalent financial records (2014 or more recent). 4. Tenant must submit documentation from the Secretary of State to confirm they are an established business entity in good standing. 5. Tenant must provide proof of financial capacity to pay rent, utilities, and maintenance costs as applicable. 6. Tenant must pay for all tenant finishes for their specific use to include design and construction which shall meet all federal, state and local codes. 7. Tenant must submit what they would offer to pay as monthly rent for this facility and location. 8. The Tenant will be required to maintain general and vehicle liability insurance in the amount of $1,000,000 in accordance with the City’s requirements naming the City as additional insured. 9. The City of Fort Collins is prepared to enter into a five year lease on this property with the option to renew at the sole discretion of the City. The tenant must submit any exceptions they may have with this lease term and renewal. 10. The City of Fort Collins would like to have this property open for business when the new building next door at 222 LaPorte Avenue is complete which is scheduled for October 2016. The tenant must submit their proposed timeline for opening their business. 11. The tenant must submit a draft floor plan showing how they would use the building. Any exterior modifications to the building would need to be approved by the Landmark Preservation Committee. RFP 8223 Old Creamery Laboratory Lease Page 4 of 23 12. The City of Fort Collins has a goal to reduce carbon emissions. The tenant must submit a plan explaining how this facility will be sustainable and minimize the carbon emissions for this facility. 13. A sample lease is attached; however, the final lease will include specific information along with any changes resulting from final negotiations with the selected tenant. The tenant shall list any exceptions they may have with this lease agreement. 14. Proposals shall not exceed twenty (20) double-sided pages, excluding cover pages, section dividers, and financial information. Zoning: 1. This property is located in the Downtown Civic Center District. The tenant would be responsible for any and all permits associated with establishing their business at this property. A drive-up is not allowed for this property per the land use code. 2. The property will be required to go through a minor amendment with planning and zoning. 3. The site is being developed to provide a patio space around this building ten feet wide which would allow for outdoor seating. 4. The City plans to conduct public outreach to insure compatibility of the proposed tenant business with the neighborhood and downtown Fort Collins before any lease is executed pursuant to this RFP. This is true even if there is no formal requirement to hold a neighborhood meeting. TENANT SELECTION PROCESS RFP Proposals Due January 28, 2016 Interview of top proposals Week of February 15, 2016 Selection of new Tenant by March 1, 2016 PROPOSAL EVALUATION CRITERIA Proposals will be evaluated on the following criteria. These criteria will be the basis for review of the written proposals and optional interview session. At discretion of the City, interviews of top rated tenants may not be held. The rating scale shall be from 1 to 5, with 1 being a poor rating, 3 being an average rating, and 5 being an outstanding rating. WEIGHTING FACTOR QUALIFICATION STANDARD 2.0 Monthly Rent How does the tenants rent offer compare to fair market rental rate and other offers? 3.0 Proposed Intended Use for Property Will the use of this facility be compliant and compatible with the surrounding area? 2.0 Availability How soon does the tenant intent to get this facility open? Are they capable of doing the work in the required time frame? 1.0 Sustainability Experience Does the firm have a sustainable practice? 2.0 Firm Capability Does the firm have the experience, financial RFP 8223 Old Creamery Laboratory Lease Page 5 of 23 capability, support capabilities and experienced personnel assigned? Has the firm operated other facilities of this type or scope? RFP Building Location on Large Project Site Plan RFP 8223 Old Creamery Laboratory Lease Page 6 of 23 RFP Building – Front View RFP Building - Old Floor Plan RFP 8223 Old Creamery Laboratory Lease Page 7 of 23 Rendering of Final Build-out with Butterfly Building Area Master Plan Showing Butterfly Building Location RFP 8223 Old Creamery Laboratory Lease Page 8 of 23 SAMPLE FORM LEASE AGREEMENT THIS LEASE AGREEMENT is made and entered into this ____ day of ______________, 2016, by and between THE CITY OF FORT COLLINS, COLORADO, a Colorado municipal corporation (“Lessor”), and ____________ (“Lessee"). WITNESSETH: WHEREAS, the Lessor is the owner of this certain parcel of real estate, together with the improvements located thereon, situated in the County of Larimer, State of Colorado, which is legally described as a portion of Lot 1, Block 32, the street address of which is _____ LaPorte Avenue, Fort Collins, Colorado (“Lessor’s Property”). WHEREAS, the Lessor desires to lease to the Lessee, and the Lessee desires to lease from the Lessor, a portion of the Lessor’s Property as depicted on attached Exhibit “A” (“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 hereto do hereby covenant, promise and agree to and with each other as follows: ARTICLE I Lease of the Leased Premises 1.1 The Lessor does hereby lease, demise and let unto the Lessee, and the Lessee does hereby hire and take from the Lessor the Leased Premises. 1.2 The Leased Premises consists of exclusive use of the building located at _____ Mason Street (approximately ______ total square feet). ARTICLE II Term 2.1 The term of this Lease shall be for a period of five (5) years commencing on _____________, 2016 and terminating at midnight on ___________, 2021. Thereafter, at the Lessor’s sole option, the Lease may be renewed for an additional five (5) year period. 2.2 This Lease shall not be recorded; but, at the request of the Lessee, the Lessor and the Lessee shall 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 shall mutually agree upon. ARTICLE III Rent 3.1 The Lessee shall pay to the Lessor monthly rent in the amount of _______________________________. The monthly payments will be due on the first day of RFP 8223 Old Creamery Laboratory Lease Page 9 of 23 each month commencing _________, 2016. 3.2 Lessee will make all rent payments to the Lessor at such place as the Lessor may, from time to time, designate in writing. For the present, the Lessor designates Real Estate Services, 300 Laporte Avenue, Building B, P.O. Box 580, Fort Collins, CO 80522, as the place for the making of rental payments. All such rent is payable in current legal tender of the United States as the same is then by law constituted. Extensions of time for the payment of any installment of rent or the acceptance by the Lessor of any money other than of the kind herein specified shall not be a waiver of the right of the Lessor to insist on having all other payments of rent made in the manner and at the time herein specified. 3.3 The rental amount set forth hereinabove is in addition to the Lessee's obligations with respect to the payment of real and personal property taxes, insurance premiums and the obligations of the Lessee with respect to the payment of utilities and maintenance of the Leased Premises. ARTICLE IV Cost of Living Adjustment 4.1 At the end of the first year, the base rental shall be adjusted by the percentage increase in the Consumer Price Index for the Denver-Boulder region, (commonly referred to as the Cost of Living Index), All Urban Consumers (CPI-U), all Items, (base year 1982-84=100), published by the United States department of Labor, Bureau of Labor Statistics, as measured for each calendar year ending on December 31st. However, in no case will the increase exceed 3% annually. The increased monthly rental as so determined shall commence as of December 31, 2015 and shall continue until readjusted on an annual basis as herein provided for. In the event said Index ceases to be available, Lessor shall have the right to use the Index which has replaced, modified or changed said Index. If there is no replacement Index, Lessor shall have the right to increase the rental due under the terms hereof, said rental adjustment being made in accordance with the provisions of this paragraph, with the percentage to be used being the percentage increase in said Index for the year immediately preceding the month in which said Index ceases to be published. Additional rents due because of Increase in cost of living Index, accrued prior to the date the current Index is available, shall be added to rents due for the remainder of the lease year and paid in equal installments with the rental payments for the succeeding months. ARTICLE V Use of Leased Premises 5.1 The Lessee shall use the Leased Premises as ________ and for other similar incidental purposes. The Lessee shall not use the Leased Premises in such a manner as to violate any applicable law, rule, ordinance, or regulation of any governmental body. The Lessee may, upon obtaining the Lessor’s prior written consent, use the Leased Premises for any other lawful purpose. 5.2 The Lessor requires that the entire Leased Premises be maintained and kept in a neat and orderly condition at all times. 5.3 The public right-of-way must be free from the placement of any encroachments. RFP 8223 Old Creamery Laboratory Lease Page 10 of 23 ARTICLE VI Maintenance and Repair 6.1 The Lessee shall, during the term of this Lease and at its sole expense, keep the Leased Premises in a clean and 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. The Lessee shall also, at its sole cost, 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. 6.2 The Lessor, during the term of the Lease, shall keep and maintain the Leased Premises, including without limitation, the exterior walls, foundation and roof of the building, plumbing, electrical, and the heating located on the Leased Premises. Notwithstanding anything to the contrary contained herein, the Lessor shall not in any way be liable to the Lessee for failure to make repairs as herein specifically required of them unless the Lessee has previously notified the Lessor in writing of a need for such repairs and the Lessor has failed to commence and complete said repairs within a reasonable period of time following receipt of the Lessee's written notification. 6.3 The Lessee shall be liable for and shall reimburse the Lessor for the cost of any repairs or damage caused by any act or negligence of the Lessee or the Lessee's agents, employees, or invitees. 6.4 All repairs or replacements to the Leased Premises required of the Lessee shall be made promptly and when necessary. All replacements shall be of a quality and class at least equal to the original work. 6.5 The Lessee shall neither permit nor suffer any disorderly noise or nuisance whatsoever about the Leased Premises having any tendency to annoy or disturb any persons occupying adjacent premises. The Lessee shall neither hold nor attempt to hold the Lessor liable for any injury or damage, either approximate 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. The Lessee shall not permit or suffer the Leased Premises or the walls thereof to be endangered by overloadings nor permit the Leased Premises to be used for any purpose which would render the insurance thereon void or insurance risks more hazardous without the prior written consent of the Lessor, which consent may be conditioned upon the Lessee obtaining additional specific insurance coverage for such more hazardous risks. 6.6 On default of the Lessee to make any repairs or replacements required to be made by them by this Lease, the Lessor may, but shall not be required to, make such repairs or replacements for the Lessor’s account and the expense thereof shall constitute and be collectible by the Lessor as additional rent owed by the Lessee due at the time of the next monthly rental payment. 6.7 The Lessor is responsible for the removal of snow and ice from the public premises adjoining the Leased Premises and also for keeping any adjoining public premises such as sidewalks, streets or alleys in a neat and clean condition, goods or other materials attributable to the Lessee’s operations, which are the responsibility of the Lessee. The Lessee must be pro-active in preventing and removing any outdoor accumulation of debris, trash, thrift goods, or other materials incidental to the Lessee’s operations. 6.8 The Lessee, upon the expiration or termination of this Lease, either by lapse of RFP 8223 Old Creamery Laboratory Lease Page 11 of 23 term or otherwise, must peaceably surrender to the Lessor the Leased Premises, including the alterations, additions, improvements, changes and fixtures other than the Lessee's movable trade fixtures, equipment and furniture, in broom-clean condition and in good repair as provided herein, and except for acts of God and ordinary wear, and damage by fire or other casualty not caused by the negligence of the Lessee or anyone under the Lessee's control. ARTICLE VII Alterations and Improvements 7.1 All alterations, additions, improvements or changes to the Leased Premises by the Lessee subsequent to the commencement of the Lease term shall be subject to the written approval of the Lessor and shall be done in a good and workmanlike manner without impairing the structural soundness of the building and in compliance with the building and zoning laws and with all other laws, ordinances, orders, rules, regulations and requirements of all federal state or municipal governments and the appropriate departments, commissions, boards and officers thereof; and the Lessee shall procure certificates of occupancy, if required by law. Furthermore, such alterations, additions and improvements shall not be commenced until any contractor or subcontractor engaged for such purpose shall deliver to the Lessee (with a copy to the Lessor) 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 Lessor. Furthermore, no such alterations, additions or improvements shall be commenced until the Lessee shall have procured and paid for all required municipal and other governmental permits and authorizations of the various municipal departments and governmental subdivisions having jurisdiction over the matter. 7.2 The Lessor reserves the right, from time to time (without invalidating or modifying this Lease), to make alterations, changes and additions to the land and improvements of which the Leased Premises form a part. 7.3 No changes or alterations shall be undertaken by the Lessee 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. 7.4 At the end of the term of this Lease, all fixtures, equipment, additions and alterations, except trade fixtures installed by the Lessee, shall be and remain the property of the Lessor. Provided, however, the Lessor shall have the option to require the Lessee to remove any or all such fixtures, equipment, additions and alterations and restore the Leased Premises to the condition that existed immediately prior to such change and installation, with the exception for normal wear and tear, all at the Lessee's cost and expense. All such work shall be done in a good and workmanlike manner and shall consist of new materials unless otherwise agreed to by the Lessor. RFP 8223 Old Creamery Laboratory Lease Page 12 of 23 ARTICLE VIII Covenant of Title and Quiet Enjoyment 8.1 The Lessor covenants that it is well seized of and has good title to lease the Leased Premises, does warrant and will defend the title thereto and will indemnify the Lessee against any damage or expense which the Lessee may suffer by reason of any lien, encumbrance, restriction or defect in the title or description herein of the leased premises existing prior to the date hereof. ARTICLE IX Taxes, Real and Personal 9.1 Upon commencement of the term of this Lease Agreement, the Lessee shall be responsible for payment of the real property taxes and assessments, if any, that may be imposed upon the Leased Premises. 9.2 The Lessee shall pay all sales and use taxes 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. 9.3 In default of the payment of any such taxes by the Lessee, the Lessor may pay the same (but shall be under no obligation to do so), and the amount so paid shall be due at the time of the next monthly rental payment. However, it is understood that if the Lessor shall pay any such amount, the Lessor shall not waive any of their rights hereunder as a result of such default. 9.4 The Lessee shall not be 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 the Lessee shall, in good faith and with due diligence, contest the same or the validity thereof by appropriate legal proceedings, which shall, 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, the Lessee shall give the Lessor such reasonable security as may be demanded by the Lessor to insure payment of the amount of the tax, assessment, tax lien or other imposition or charge and all interest and penalties thereon. ARTICLE X Parking 10.1 This Lease does not include any off-street parking. Vehicle parking shall be limited to on-street parking unless Lessee obtains the Lessor’s prior written consent for other uses. ARTICLE XI Insurance 11.1 The Lessee, at its sole cost and expense, must, during the term of this Lease, procure, pay for and keep in full force and effect a policy of commercial general liability insurance covering the improvements and the Leased Premises insuring the Lessee in an amount not less than One Million Dollars ($1,000,000) covering bodily injury, including death to RFP 8223 Old Creamery Laboratory Lease Page 13 of 23 persons, personal injury and property damage liability arising out of a single occurrence. Such coverage must 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 the Lessee). 11.2 All policies of insurance carried by the Lessee must name the Lessee as insured and name the Lessor 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 Lessee and the Lessor. Upon issuance or renewal of any such insurance policy, the Lessee must furnish a certificate of insurance showing evidence of coverage that names the City of Fort Collins as additional insured. Any such policies must contain waivers of subrogation and waivers of any defense based on invalidity arising from any act or neglect of any assignees or sub lessees of the Lessee. Any insurance policy purchased by the Lessee must be written by an insurance carrier which has 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 approved by the Lessor and must be authorized by law to do business in the State of Colorado. Notwithstanding anything to the contrary contained herein, the Lessee'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 the Lessee, so long as such policy or policies segregate the amount of coverage applicable to the Leased Premises. In the event that the Lessee 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 Lessor 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, the Lessee must repay the Lessor all sums so paid by the Lessor, together with interest thereon and any costs or expenses incurred by the Lessor in connection therewith, within ten (10) days following the Lessor’s written demand to the Lessee for such payment. ARTICLE XII Utilities 12.1 The Lessee agrees to pay all charges for electricity, sewer, gas, water, light, power, trash removal, janitorial services, telephone and other communication services used, rendered or supplied upon or in the Leased Premises. The Lessee agrees to indemnify the Lessor against any and all liability or damages on such account. All such utility charges shall be paid by the Lessee before the date the same become delinquent. ARTICLE XIII Signs 13.1 The Lessee must not affix, erect or maintain on the Leased Premises any sign or advertisement without first obtaining the Lessor’s approval as to the sign or advertisement to be erected on the Leased Premises. Any such sign must comply with all applicable laws. Lessee is responsible for the cost of erection and maintenance of such sign or advertisement. RFP 8223 Old Creamery Laboratory Lease Page 14 of 23 ARTICLE XIV Subletting and Assignment 14.1 The Lessee covenants and agrees that it will not assign this Lease, any interest or any part thereof, any right or privilege appurtenant thereto, nor mortgage or hypothecate the leasehold without written consent of the Lessor first having been obtained, such consent not to be unreasonably withheld. A consent to one assignment or hypothecation shall not be construed as a consent to any subsequent assignment or hypothecation; and it is hereby mutually covenanted and agreed that, 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 hypothecation either by the voluntary or involuntary act of the Lessee or by operation of law or otherwise, shall, at the option of the Lessor, terminate this Lease; and any such purported assignment or transfer without such consent shall be null and void. The Lessor’s consent to any such assignment shall not relieve the Lessee from any obligation under this Lease unless the Lessor expressly agrees in writing to relieve the Lessee from such obligation. 14.2 If this Lease shall be assigned or if the Leased Premises or any part thereof shall be sublet or occupied by anyone other than the Lessee, the Lessor may collect rent from the assignee, subtenant or occupant and employ the net amount collected to the rent herein reserved; and no such collection shall be deemed a release of the Lessee from the complete performance of the Lessee’s covenants hereunder. ARTICLE XV Mechanic's Liens 15.1 The Lessee agrees to 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 by the Lessee or his agents or subtenants to the Leased Premises; and the Lessee agrees to hold the Lessor 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. The Lessee 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 the Lessee's request in, on or about the Leased Premises and to indemnify the Lessor 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 the Lessee's part. The Lessee shall, however, have the right to contest any mechanic's liens or claims filed against the Leased Premises, provided the Lessee 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 judgement adjudging or enforcing such contested lien and thereafter procure record satisfaction or release thereof. The Lessee also agrees in any such contest, at the Lessee's cost and expense, to defend the same on behalf of the Lessor. ARTICLE XVI Condemnation 16.1 If, as a result of any exercise of the power of eminent domain (hereinafter referred to as “proceedings”), either of the following happens: (a) the title to the whole or substantially all of the Leased Premises is taken; or RFP 8223 Old Creamery Laboratory Lease Page 15 of 23 (b) the Leased Premises are deprived of adequate ingress or egress to or from all public streets and highways abutting the Leased Premises; and the Lessee cannot reasonably operate in the remainder of the Leased Premises the business being conducted on the Leased Premises at the time of such taking, then this Lease will terminate as of the date of such taking pursuant to such proceedings. For the purpose of construing the provisions of this Article, "proceedings" shall include any negotiated settlement of any matter involving a condemnation, and a "taking" shall be deemed to occur when title to the Leased Premises or possession thereof is acquired by a governmental authority, whichever first occurs. 16.2 If, during the term of this Lease, title to less than the whole or title to less than substantially all of the Leased Premises shall be taken in any such proceedings and the Lessee can reasonably operate in the remainder of the Leased Premises and the business being conducted on the Leased Premises at the time of such taking, this Lease shall not terminate; and the monthly rental thereafter due and payable by the Lessee shall be reduced in such just proportion as the nature, value and extent of the part so taken bears to the whole of the Leased Premises. 16.3 All damages awarded for any taking described in this Article shall belong to and be the property of the Lessor, except to the extent that any amount thereof is specifically attributable to the Lessee's trade fixtures and to the extent that the Lessor is permitted by law to recover any damages they may sustain as the result of such taking. ARTICLE XVII Total or Partial Destruction 17.1 In case, during the term of this Lease, the Leased Premises or any part thereof shall be destroyed or shall be so damaged by fire or other casualty so as to become untenantable, then, in such event, at the option of the Lessor, the term hereby created shall cease; and this Lease shall become null and void from the date of such damage or destruction; and the Lessee shall immediately surrender the Leased Premises and its interest therein to the Lessor; and the Lessee shall pay rent within said term only to the time of such surrender, provided, however, that the Lessor shall exercise such option to so terminate this Lease by notice in writing delivered to the Lessee within thirty (30) days after such damage or destruction. In the event the Lessor shall not so elect to terminate this Lease, this Lease shall continue in full force and effect; and the Lessor shall repair the Leased Premises with all reasonable speed, placing the same in as good a condition as it was at the time of the damage or destruction and for that purpose may enter upon the Leased Premises; and rent shall abate in proportion to the extent and duration of the untenantability. In either event, the Lessee shall remove all rubbish, debris, merchandise, furniture, furnishings, equipment and other items of its personal property within ten (10) days after request being made by the Lessor. If the Leased Premises shall be only slightly injured by fire or the elements so as to not render the same untenantable and unfit for occupancy, then the Lessor shall repair the same with all reasonable speed; and in that case, rent shall not abate. Lessee is not entitled to any compensation from or claim against the Lessor for any inconvenience or annoyance arising from the necessity of repairing any portion of the Leased Premises, however the necessity may occur. Lessor is not responsible for repair or replacement of any Lessee-installed improvements to the Leased Premises including Lessee’s fixtures, equipment or merchandise. RFP 8223 Old Creamery Laboratory Lease Page 16 of 23 ARTICLE XVIII Holding Over 18.1 Any holding over after the expiration of the term of this Lease Agreement, with the consent of the Lessor, shall be construed to be a tenancy from month to month on the same terms and conditions herein specified and at the same rental provided for herein, subject to the cost of living adjustment provided for in paragraph 4.1 hereinabove. ARTICLE XIX Default of Lessee 19.1 If any one or more of the following events (herein referred to as "an event of default") happens: (a) The Lessee defaults in the due and punctual payment for the rent or any other amounts required to be paid hereunder and such default continues for three (3) days after the receipt of written notice from the Lessor; (b) The Lessee neglects or fails to perform or observe any of the other covenants herein contained on the Lessee's part to be performed or observed, and the Lessee fails to remedy the same within fifteen (15) days after the Lessee receives from the Lessor 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 fifteen (15) day period, provided that the Lessee shall have commenced to effect such cure within said fifteen (15) days and proceeds with due diligence to complete said cure; or c) The Lessee (i) is adjudicated bankrupt or insolvent, (ii) files a petition in bankruptcy for reorganization or for the adoption of an arrangement under the Bankruptcy Act (as now or in the future amended) or (iii) makes an assignment of its property for the benefit of its creditors. Then, and in any one or more such events, the Lessor has the right, at its election and while such event of default continues, either: (a) To give the Lessee written notice of Lessor’s intention to terminate this Lease on the date of such given notice or any later date specified therein; and on such specified date, the Lessee's right to possession of the Leased Premises shall cease; and this Lease shall thereupon be terminated; or (b) To re-enter and take possession of the Leased Premises or any part thereof and-repossess the same as the Lessor’s former estate and expel the Lessee and those claiming through or under the Lessee and remove the effects of both or either (forcibly, if necessary) without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrearages of rent or preceding breach of covenants. Should the Lessor elect to re-enter as provided in this subparagraph (2) or should the Lessor take possession pursuant to any notice provided for by law, the Lessor may, from time to time, without terminating this Lease, relet the Leased Premises or any part thereof for such term or terms and at such rental or rentals and upon such other terms and conditions as the Lessor may deem advisable, with the right to make alterations and repairs to the Leased Premises. No RFP 8223 Old Creamery Laboratory Lease Page 17 of 23 such re-entry or taking of possession of the Leased Premises by the Lessor shall be construed as an election on the Lessor’s part to terminate this Lease, unless a written notice of termination thereof shall be decreed by a court of competent jurisdiction. 19.2 In the event the Lessor does not elect to terminate this Lease, but, on the contrary, elects to take possession, then, such repossession shall not relieve the Lessee of its obligation and liability, under this Lease, all of which survive such repossession. In the event of such repossession, the Lessee must pay to the Lessor as current liquidated damages: (a) The then value of the rent and other sums as herein provided which would be payable hereunder if such repossession had not occurred; less (b) The net proceeds, if any, of any reletting of the Leased Premises after deducting all of the Lessor’s expenses in connection with such reletting, including, but without limitation, all repossession costs, brokerage commissions, legal expenses, attorneys' fees, expenses of employees, necessary alteration costs and expenses of preparation for such reletting. The Lessee must pay such current liquidated damages to the Lessor on the days on which the monthly rental would have been payable hereunder if possession had not been retaken, and the Lessor shall be entitled to receive the same from the Lessee on each such day. If the Lessor is required to commence any action or proceeding to collect the foregoing amounts or to enforce any other obligation of the Lessee under this Lease, the Lessor will be entitled to a reimbursement of all costs and expenses incurred in said matter, including reasonable attorneys' fees. 19.3 If, however, this Lease Agreement is terminated by the Lessor by reason of any default by the Lessee, the Lessor shall be entitled to recover from the Lessee the worth at the time of such termination of the excess, if any, of the rent reserved in this Lease for the balance of the term in excess of the then reasonable rental value of the Leased Premises for the same period, which amount shall be immediately due and payable by the Lessee to the Lessor. It is agreed that the "reasonable rental value" shall be the amount of rental which the Lessor can obtain as rent for the remaining balance of the term. In addition, all costs incurred in connection with collecting such sum; including reasonable attorneys' fees, shall be recoverable by the Lessor from the Lessee. 19.4 The Lessor reserves the right to make any payments or perform any action required hereunder by the Lessee (but shall not be required to do so); and all amounts expended by the Lessor, together with interest at the rate of eighteen percent (18%) per annum, must be paid by the Lessee on the first monthly rental payment date following any such expenditures. ARTICLE XX Interest and Late Charges 20.1 Any amount due to the Lessor from the Lessee under this Lease Agreement not paid when due will bear interest at the rate of ten percent (10%) per annum from the due date until paid. Payments of such interest do not excuse or cure any default by the Lessee under this Lease Agreement. In addition, it is also agreed that if the Lessee fails to pay any installment of rent when due and such failure continues for a period of ten (10) days following the due date, the Lessee must pay to the Lessor a monthly collection service charge of five RFP 8223 Old Creamery Laboratory Lease Page 18 of 23 percent (5%) of the late payment amount, due and payable immediately. ARTICLE XXI Attorneys' Fees 21.1 The Lessee must pay and indemnify the Lessor against all legal costs and charges, including attorneys' fees, lawfully and reasonably incurred in obtaining possession of the Leased Premises after default of the Lessee, or incurred after the Lessee surrenders possession upon the expiration or sooner termination of this Lease, or incurred in enforcing any covenant of the Lessee herein contained or any right granted to the Lessor. ARTICLE XXII Lessee to Save Lessor Harmless 22.1 The Lessee covenants that he will indemnify and hold the Lessor harmless from and against all claims, demands, judgments, costs, and expenses, including legal costs and 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 or any part thereof by the Lessee, its agents, employees and business invitees or any person or persons (and their agents, employees, and business invitees) holding under the Lessee, unless such accident or occurrence directly results from any tortious misconduct or negligent act or omission on the part of the Lessor, its agents and employees 22.2 The Lessee will further indemnify and hold harmless the Lessor from any damages and all penalties arising out of any failure of the Lessee, in any respect, to comply with all of the requirements and provisions of this Lease Agreement; and the Lessee covenants that the Lessee will keep and save the Lessor and the Lessor’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 the Lessee, or by another or others in the Leased Premises holding under or through the Lessee. ARTICLE XXIII Hazardous Material 23.1 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. 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; (iii) asbestos; (iv) designated as "hazardous substance" pursuant to section 311 of the Federal Water Pollution Control Act (33 U.S.C. section 1321); (v) defined as "hazardous waste" pursuant to section 1004 of the Federal Resource Conservation and Recovery Act (42 U.S.C. Section 6903); (vi) 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 (vii) defined as a "regulated substance" pursuant to Subchapter IX, Solid Waste Disposal Act (Regulation of Underground Storage Tanks) (42 U.S.C. Section 6991. 23.2 The Lessee shall not cause or permit any Hazardous Material to be brought upon, kept or used in or about the Leased Premises by the Lessee, its agents, employees, contractors or invitees, without the prior written consent of the Lessor (which Lessor shall not RFP 8223 Old Creamery Laboratory Lease Page 19 of 23 unreasonably withhold as long as the Lessee demonstrates to the Lessor’s reasonable satisfaction that such hazardous material is necessary or useful to the Lessee's business and will be used, kept and stored in a manner which complies with all laws regulating any such Hazardous Material). If the Lessee breaches the obligation stated in the preceding sentence, or if the presence of Hazardous Material on the Leased Premises caused or permitted by the Lessee results in contamination of the Leased Premises, or if contamination of the Leased Premises by Hazardous Material otherwise occurs for which the Lessee is legally liable to the Lessor for damage resulting therefrom, then the Lessee must indemnify, defend and hold the Lessor 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. This indemnification of the Lessor by the Lessee includes, without limitation, costs incurred in connection with any investigation of site conditions or any clean up, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision because of Hazardous Material present in the soil or groundwater on or under the Leased Premises. Without limiting the foregoing, if the presence of any Hazardous Material on the Leased Premises caused or permitted by the Lessee results in any contamination of the Leased Premises, the Lessee must 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 Lessor’s approval of such action must first be obtained, which approval will not be unreasonably withheld so long as such action would not potentially have any material adverse affect on the Leased Premises. ARTICLE XXIV Notices 24.1 Any notice or other communication given by either party hereto to the other relating to this Lease Agreement shall be hand delivered or sent by registered or certified mail, return receipt requested, addressed to such other party at their respective addresses set forth below; and such notice or other communication is deemed given when so hand delivered or mailed: If to the Lessor, to: City of Fort Collins Real Estate Services 300 Laporte Avenue, Building B P.O. Box 580 Fort Collins, CO 80521 If to the Lessee, to: ________________________ ________________________ ________________________ Where permitted by law, Lessor may also deliver notice to Lessee by posting in a conspicuous place on the Leased Premises. RFP 8223 Old Creamery Laboratory Lease Page 20 of 23 ARTICLE XXV Subordination 25.1 It is expressly understood and agreed between the parties hereto that the Lessor reserves the right to subject and subordinate this Lease at all times to the lien of any mortgages or deeds of trust hereafter placed upon the Lessor’s interest. The Lessee agrees to promptly execute and deliver, upon the Lessor’s request, such instruments subordinating this Lease to the lien of any such mortgages or deeds of trust as are reasonably necessary in connection therewith, provided that the Lessor delivers to the Lessee at the same time an agreement by the holder of any such mortgage (or deed of trust) agreeing not to disturb or interfere with the rights of the Lessee hereunder in the event of any foreclosure so long as the Lessee complies with all of the provisions hereof. ARTICLE XXVI Americans with-Disabilities Act (ADA) 26.1 The Lessee shall comply with all Federal, State and local laws, including the requirements of the Americans with Disabilities Act (ADA). The Lessor 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. Lessee will indemnify and defend the Lessor against any claims brought under the ADA regarding the Leased Premises. ARTICLE XXVII Time of the Essence 27.1 It is agreed that time is of the essence of this Agreement and each and every provision hereof. ARTICLE XXVIII Lessor’s Right of Entry 28.1 During this term of this Lease, Lessor 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 Lessor or Lessor’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 Lessor may deem necessary or desirable. During the ninety (90) days prior to the expiration of the term of this Lease or any renewal term, Lessor 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 Tenant shall permit to remain thereon without molestation. 28.2 In the event of an emergency, in order to protect or minimize the risk of harm to life or property if Tenant shall not be personally present to open and permit an entry into said premises, or at any time, when for any reason an entry therein shall be necessary or permissible, Lessor or Lessor’s agents may enter the same by a master key or may forcibly enter the same, without rendering Lessor 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 Lessor any obligation, responsibility, or liability whatsoever for the care, maintenance or repair of the building or any part thereof, except RFP 8223 Old Creamery Laboratory Lease Page 21 of 23 as specifically provided. ARTICLE XXIX Miscellaneous 29.1 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. 29.2 This Agreement will be construed according to its fair meaning 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 Agreement unless set forth in writing and signed by both parties hereto. 29.3 The section headings used herein are for convenience of reference only and shall in no way limit or prescribe the scope or intent of any provision under this Lease Agreement. 29.4 Subject to the provisions hereof, the benefits of this Lease Agreement and the burdens hereunder inure to and are binding upon the parties hereto and their respective heirs, administrators, successors and permitted assigns. 29.5 No waivers by the Lessor of any one or more of the terms, covenants, conditions and agreements of this Lease Agreement shall be deemed to imply or constitute a waiver of any succeeding or other breach hereunder; and the failure of the Lessor to insist upon strict performance of the terms, conditions, covenants and agreements herein contained or any of them shall not constitute or be considered as a waiver or relinquishment of the Lessor’s rights thereafter to enforce any such default or term, condition, covenant or agreement; and the same shall continue in full force and effect. 29.6 The remedies of the Lessor 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 shall be governed by and its terms construed under the laws of the state of Colorado. 29.7 The Lessor reserves the right to grant such utility easements and other easements as it desires over, across and under portions of the parking area so long as such easements do not unreasonably interfere with the Lessee's continuing use of the Leased Premises. 29.8 At any time, and from time to time, the Lessee agrees, upon request in writing from the Lessor, to execute, acknowledge and deliver to the Lessor 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. 29.9 No act or thing done by the Lessor or the Lessor’s agents or employees during the term hereof shall be considered as an acceptance of the surrender of the Leased Premises, and no agreement to accept such surrender is valid unless in writing signed by the Lessor. No employee of the Lessor or the Lessor’s agent has any power to accept the keys to the Leased Premises prior to the termination of this Lease. The delivery of keys to an employee of the Lessor or to the Lessor’s agent shall not operate as a termination of this Lease or a surrender of the Leased Premises. No payment by the Lessee or receipt by the Lessor of a lesser amount than the monthly rental herein stipulated shall be deemed to be other than on account of the RFP 8223 Old Creamery Laboratory Lease Page 22 of 23 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 Lessor may accept such check or payment without prejudice to the Lessor’s right to recover the balance of such rent or to pursue any other remedy available to the Lessor. 29.10 The Lessee acknowledges and agrees that the Lessee has not relied upon any statements, representations, agreements or warranties except such as are expressed herein. 29.11 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. 29.12 By executing this Lease, the Lessee accepts the Leased Premises in their present condition “as is". The Lessee acknowledges that the Leased Premises, in their present condition, comply fully with the Lessor’s covenants and obligations hereunder. 29.13 The parties hereto acknowledge that certain items of personal property may be located within the commercial building which is located on the Leased Premises. The Lessor makes no representations or warranties regarding 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. The Lessee agrees to release, indemnify and hold the Lessor harmless against any liability for any improper use or disposition by the Lessee of any items of personal property belonging to third parties. RFP 8223 Old Creamery Laboratory Lease Page 23 of 23 IN WITNESS WHEREOF, the parties hereto have caused this Lease Agreement to be executed the day and year first above written. THE LESSOR: THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: City Manager ATTEST: City Clerk APPROVED AS TO FORM: Senior Assistant City Attorney THE LESSEE: By: Attachments: 1. Exhibit “A”