HomeMy WebLinkAbout981712.tiff Daniel J. Post
Attorney at Law
1122 9th Street • Suite 103 • Greeley,Colorado 80631
(970)353-2301 • FAX(970)356-1921
September 9, 1998
Constance L. Harbert, Chair
Board of County Commissioners
Weld County, Colorado
Centennial Building
Greeley, Colorado 80631
RE: Lease Agreement, Weld County and Winona's Deli
Dear Commissioner Harbert:
My office has been contacted concerning the lease agreement between the County
and Wolfe and Sheere, LLC, dba Winona's Deli. The concern arises from a potential
violation of Article 11, Section 2 of the Constitution of the State of Colorado wherein
government is subsidizing private business. In particular, the concern is that the County is
leasing space to Winona's at a rate far below market which effectively constitutes an
unconstitutional subsidy. There is also concern about the procedures by which Winona's
Deli acquired the lease agreement with the County— apparently the lease was not let out
to bid.
As you know, the County and Winona's entered into a lease agreement on July 16,
1998. The terms of the lease agreement are that, for the sum of two hundred dollars
($200.00) per month, the parties would lease the "commercial space" on the second floor
of the Centennial Building. The lease is for a term of four (4) years with an option for one
(1) additional year.
The term "commercial space" is not defined in the lease agreement but my clients
consider that term to mean the recently renovated restaurant area (approximately 1,700
square feet) and the solarium (approximately 1,700 square feet). At the rental amount
stated in the lease agreement, the yearly rent per square foot is either one dollar ($1.00)
(renting 1,700 square feet) or fifty cents ($0.50) (renting 3,400 square feet). These figures
are substantially lower than the minimum six dollars ($6.00) to eight dollars ($8.00) per
square foot associated with downtown rental properties. The difference would seem to be
a subsidy to Winona's Deli.
These calculations do not include the cost of renovating the"commercial space."
It appears that the County is bearing the renovation expense with no provision for
t
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0\�\� 981712
t
Winona's to compensate the County for the renovations (although Winona's has exclusive
use of the area through the lease agreement) during the life (5 years) of the lease
agreement.
A second concern raised by my clients is that the County is competing with
business downtown. This concern arises from the County charging rent far below market
value forcing landlords to consider County rent amounts when setting their own rents, and
from renters who want the same rent amounts from the landlords. The action of the
County effectively drains the downtown of several retail establishments, further
contributing to the economic ills of the downtown area.
My clients ask that the lease agreement between the County and Winona's Deli be
voided and renegotiated to bring the rents in line with market conditions and to recoup the
costs incurred in renovating the commercial area. My clients assert taxpayer standing to
challenge the lease agreement and request the opportunity to answer any questions the
Board of County Commissioners may have.
Sincerely,
Daniel J Pgst _yv�
Attorneyai Law
9ff/7/
r
..
316 357
Art. XI Sec. 2 t
lover- im ovements.Montgomery v.City&County $537,810, which was to be exchanged with a L.
of ver,102 Colo.427,80 P.2d 434(1938). railroad company for one of its tracts,and for
Sect n 48 of the Denver city charter, which the railroad company agreed to pay
authorize payments by the city of the bal- $30,000, leaving a net cost to the city of
mice of sp ial improvement district bonds in $507,810, which was also the appraised value
which 80 p ent of the outstanding bonds of the railroad company's land,it was held that
have been re med does not transgress this the contemplated transaction did not violate
section. Montgo ery v. City & County of this section, since the transaction was essen-
Denver,102Colo. 7,80 P.2d 434(1938). tially a cash transaction, involving not
State cannot, by s ute, make county liable deferred payments, but the contemporaneous
for debts of person or rporation. If neither deeding of the railroad company's property to
state nor county can be me responsible for the city, and of the investment company's
the debts of any person or orporation,it fol- property to the railroad, and the payment of
t for- lows that the state cannot b statute make a cash to the investment company;whereas the
G hool county liable, either absolut or contin- process of lending or pledging one's credit as
_cal gently, for such debt, or any rt thereof. prohibited by this section contemplates a
uhh� Leddy V. People ex rd. Farrar, 5 olo. 120, period of time over which the credit is lent or
147 P. 365 (1915); Board of County omm'rs pledged. Chitwood v. City & County of
'N I i v.Humes,144 Colo.434,356 P.2d 910( 0). Denver,119 Colo. 165,201 P.2d 605(1948).
pony I As county may not be guarantor.This se ion Nor city's lease of land before lessor obtained
of the constitution has been interpreted by a title.Where a lease of land by a city was exe-
i supreme court as preventing the county fro cuted before title to the land in question was
I standing in the position of'a guarantor for the obtained by the lessor, a private corporation,
a' I" debts of an individual. Board of County but the obligation of the city under the lease
iorad Comm'rs v. Humes, 144 Colo. 434, 356 P.2d as limited to the payment of rent and was
John I 910(1960). c tingent on the lessor's securing the prop-
,.., ^°`I I Public revenue bonds do not create debt, if ert the city neither assumed, secured,
I"t" there is no pledge of public property.Allardice guars ed, underwrote or pledged its credit,
t "" v.Adams County, 173 Colo. 133,476 P.2d 982 directly r indirectly,for any indebtedness or
(1970). obligation f the lessor. McCray v. City of
"`m And no credit pledged where bonds show city Boulder,16 olo.383,439 P.2d 350(1968).
"`I I
',late.ac. willnot be liable for payment. There is no Nor pro appropriation. A proposed
a nnani pledge of the credit of Denver on bonds for the house bill appr ria[ion to be deposited in a
ellr,, purchase and improvement of a sports stadium capital reserve fu which secures obligations
i.c In and no debt of Denver is created where the of the housing finan authority did not consti-
hme. bonds themselves clearly show that Denver tute a pledge of the sta 's credit in violation of
. lot shall in no event be looked to for payment or this section. In re Colo do State Senate, 193
be liable therefor. Ginsberg v. City&County Colo.298,566 P.2d 350(1 7).
Ilor, of Denver,164 Colo.572,436 P.2d 685(1968). Ordinance for refund of li nse fees does not
',hall When no debt or obligation of the state is violate this section.Peterson v. cNichols,128
10,6. created, the state cannot be said to have lent Colo. 137,260 P.2d 938(1953).
., I' its credit in violation of this section. In re Col- Applied in People ex rel. Mille v. Higgins,
orado State Senate, 193 Colo. 298, 566 P.2d 69 Cob. 79, 168 P. 740 (1917); 'heim v.
h„••_ 350(1977). Moffat Tunnel Imp.Dist.,72 Colo.26 211 P.
id ;, Essentially cash transaction did not violate 649 (1922); Moffat Tunnel Imp. Di . v.
section. In a transaction in which the city and Denver & S. L. Ry., 45 F.2d 715 (10th ir.
:he. county held an option to purchase a certain 1930):McNichols v.City&County of Deny
„1,'. tract from an investment company tor iii Clio.246,18612.26 IG;G(i;z). -
'1kI
Section 2. No aid to corporations - no joint ownership by state, county, city,
town, or school district. Neither the state, nor any county, city, town, town-
ship, or school district shall make any donation or grant to, or in aid of,
or become a subscriber to, or shareholder in any corporation or company
or a joint owner with any person, company, or corporation, public or private,
I. in or out of the state, except as to such ownership as may accrue to the
In
state by escheat, or by forfeiture, by operation or provision of law; and
i,. except as to such ownership as may accrue to the state, or to any county,
IHh. city, town, township, or school district, or to either or any of them, jointly
g8/ 7/ ;11
L -�---•,
Sec. 2 Constitution of Colorado 358 359
with any person, company, or corporation, by forfeiture or sale of real estate N.
for nonpayment of taxes, or by donation or devise for public use, or by pur- ,iek
chase by or on behalf of any or either of them, jointly with any or either ""
of them, under execution in cases of fines, penalties, or forfeiture of recogni- "
zance, breach of condition of official bond, or of bond to secure public 'nf n
moneys, orgthe performance of any contract in which they or any of them ncr
may be jointly or severally interested. Nothing in this section shall be con- of
strued to prohibit any city or town from becoming a subscriber or shareholder h`
in any corporation or company, public or private, or a joint °"
,L1Wner with o..� -- io p
--- - persuit, company, or corporation, public or private, in order to effect the 1k,,,
development of energy resources after discovery, or production, transporta- L194
tion, or transmission of energy in whole or in part for the benefit of the sten
inhabitants of such city or town. 316
N
As amended November 5, 1974 - Effective upon proclamation of the Gov- ,.
ernor, December 20, 1974. (See Laws 1974, p. 455.) ci'>
natu
trUs'
Cross reference. As to scope, intent, and ests of the taxpayer. The universal method of Pror
application of section, see notes to preceding railroad enterprises through id
was
private corpo-
section. oro .3ect
rations. The possibility of other methods was
C.J.S. See 81 C.J.S., States, § § 141, 142, unknown, or not seriously contemplated. So, S
207,210. when the people by their constitution prohib-reviews. For article, "The Moffat ited public aid to private corporations, obvi- vii1
Tunnel",see 8 Dicta 3(Feb. 1931).For article, ously the thought was that all public assistance tut
"One Year Review of Municipal Law",see 33 to the building of railroads was prohibited.
Dicta 51 (1956). For article, "Current Trends Lord v. City&County of Denver,58 Cob. I, 's
in Business Real Estate Transactions",see 35 143 P. 284, 1915B L.R.A. 306, 1916O Ann. Jan
U. Colo, L. Rev. 556 (1963), For article, Cas.893(1914).
"Scenic Easements in the Highway Beautifi- And sale of municipal property for bade- S,
cation Program", see 45 Den. L.J. 168(1968). quote price repugnant to section. A municipal- deb
For note, "State Constitutional Provisions ity cannot ordinarily lawfully sell its property rev,
Prohibiting the Loaning of Credit to Private for a grossly inadequate price, since such a
Enterprise — A Suggested Analysis", see 41 transaction is in effect a gift of public funds deft
U.Colo.L.Rev. 135(1969). and repugnant to this section of the constitu- andThis section does not prohibit grant from state tion. Tamblyn v. City & County of Denver, of
to subdivision of itself;the provision only pro- 118 Cob. 191, 194 P.2d 299 0948). of t
-
hibits grants to private corporations.In re Col- But purchase of tract from investment corn- \ha
orado State Senate, 193 Cob. 298, 566 P.2d puny to be exchanged for tract of railroad com- Vail 350(1977). pony did not violate section.In a transaction in
Public aid to railroad companies prohibited. which the city and county held an option to fer
It was undoubtedly the intention of the purchase a certain tract from an investment deb
framers of the constitution,whether wisely or company for $537,810, which was to be I one
not,to prohibit,by the fundamental law of the exchanged with a railroad company for one of i suel
new state,all public aid to railroad companies, its tracts, and for which the railroad company 1e%1
whether by donation,grant or subscription,no agreed to pay$30,000,leaving a net cost to the
matter what might be the public benefit and city of$507,810,which was also the appraised Ito❑
advantages flowing from the construction of value of the railroad company's land, it was the
such roads. Colorado Cent. R. R. v. Lea, 5 held that the contemplated transaction did not P
Cob. 192(1879);McNichols v. Police Protec- violate this section, since the city clearly does tih0
tive Ass'n, 121 Cob.45,215 P.2d 303(1949). not make any donation or grant to any other prin
The significance of the inhibition of this corporation or company, and is obtaining
section is read in the evil which it was intended exactly the same property and paying the same 'tat
to remedy. Common was the practice, there- amount of cash as it would have paid if it had still
tofore,of issuing municipal bonds to aid in the dealt solely with the railroad company,and as to u
construction of railroads.The practice was felt if the investment company had not been a ❑eet
to be evil, stimulating unnecessary railroad party to the transaction. Chitwood v. City &
enterprises,and injuriously affecting the inter- County of Denver, 119 Cob. 165,201 P.2d 605 S
(1948). the
98) 1 ;;
x'
358 359
Art. XI Sec. 3
estate Prot police pensions and payments in lieu of funds constitute a part of the compensation of
'y pus- sick leave.An amendment to the charter of the such employees for services rendered to the L
city and county of Denver, providing for city. McNichols v. City&County of Denver,
either police pensions and authorizing the payment 131 Colo.246,280P.2d 1096(1955).
c:ogni- d a lump sum in lieu of sick leave to those Nor proposed appropriation. A proposed
public members of the department who,upon retire- house bill appropriation to be deposited in a
them went,have exhausted none or only a portion capital reserve fund which secures obligation
con of their sick leave allowance,does not violate of the housing finance authority did not violate
the provisions of this section of the constitu- this section. In re Colorado State Senate, 193
-wider dos since this section refers primarily to aid Colo.298,566 P.2d 350(1977).
the p Functions of water conservancy district,how-
ever designated, are in no sense functions of
l private corporations. McNichols V. Police
S
of the ' protective Ass'n, 121 Colo. 45, 215 P.2d 303 state subdivision like counties,towns,cities,or
porta- I (1949),overruled on another point,Police Pen- school districts, within the meaning of this
if the i duce&Relief Bd. v. Behnke, 136 Colo. 288, section. Northern Colo. Water Conservancy r
316 P.2dDist. v. Witwer, 108 Colo. 307, 116 P.2d 200
Plot orddino ann 9cece creating retirement plan. A 1941
city ordinance creating a retirement plan for ( Applied in Moff at Tunnel Imp. Dist. v.
Gov- city employees and providing that upon termi- PM'
nation of such plan,all funds remaining in the Denver & S.L. Ry., 45 F.2d 715 (10th Or.
trust were to be distributed to employees in 1930); Allardice v. Adams County, 173 Colo.
proportion to their respective service records, 133, 476 P.2d 982 (1970); Perl-Mack Enter- -
thud N did not offend against the provisions of this prises Co. v. City & County of Denver, 194
carpe section and section 1 of this article,since such Colo.4,568 P.2d 468(1977).
d, ,c". •
ed. So. Section 2a. Student loan program. The general assembly may by law pro-
nrohB, vide for a student loan progam to assist students enrolled in educational insti-
onvl- lotions.
m ance
,ended Added November 7, 1972—Effective upon proclamation by the Governor,
°th, i. January 11, 1973. (See Laws 1972, p. 643.)
,ass
made.- ' 'on 3. Public debt of state -limitations.The state shall not contract any
,;;pa! de by loan in any form, except to provide for casual deficiencies of
opera revenu erect public buildings for the use of the state, suppress insurrection,
,Lich .' defend th tate, or, in time of war, assist in defending the United States;
t""`' and the amo of debt contracted in any one year to provide for deficiencies
ononu-
ov of revenue, sha of exceed one-fourth of a mill on each dollar of valuation
°" ' of taxable propert ithin the state, and the aggregate amount of such debt
•t corn- shall not at any time xceed three-fourths of a mill on each dollar of said
d corn- valuation, until the valua ' n shall equal one hundred millions of dollars, and
non i" thereafter such debt shall n exceed one hundred thousand dollars; and the
°1 l" debt incurred in any one year erection of public buildings shall not exceed
to he
' one-half mill on each dollar of s ' valuation; and the aggregate amount of
,,,
one.,r ' such debt shall never at any time a eed the sum of fifty thousand dollars
epee} (except as provided in section five of t ' article), and in all cases the valua-
al
a the
ed tion in this section mentioned shall be tha f the assessment last preceding
rw,ed
.,. __ the creation of said debt.: _ — -
;d mot Provided, that in addition to the amount of t that may be incurred as
• doe, above, the state may contract a debt by loan for t urpose of paying the
other principal and accrued interest of all the outstanding w ants issued by this
,oine state during and for the years 1887, 1888, 1889, 1892, 1 1894 and 1897,
a i
II n:.,,d said debt to be evidenced by registered coupon interest-bearin unding bonds
'nil ae, to an amount not exceeding $2,115,000.00, or so much thereo s may be
<" :' necessary to pay said warrants and interest thereon.
"` ' fun din fdin bonds shall be dated December 1, 1910, shall be pay e at
7.160< B
the option of the state of Colorado at any time after ten years from t 'r
9,1/ 7/ all
; 1
•
210 211
need does not in gh the Art.XI-Public Indebtedness
crease although Sec.2
may cnonge. Bolt v. °s: would reasonably Ian-
boo' Dist. No. 6, 898 P.2d a eminent more thanrestrain the growth of inter-- debt sect
)' relation. mere any other byapa competing section f this
to whichh the provisions of plain
for purposes of meek i rn. The on assertion by a party that gunge of th do not ion. under the plain my s predated this °B federal 'i,, moms "reasonably this 70 Public
Board Auth.,
81
eew or purposes
ice'hence a the growth ofgove o restrain P.2d 412 rs C. E-47p App. 1994);94 Hof ounty
statutory budgeting hive. acts'v. Cityof tnmeni is not dispos- P.2d H . Au 1995).
o discretion to board heof ce was
(Colo. Boulder,885 P.2d 215 (Colo. Nicholl v.E-470
0is alter budget 4) "• Public H .Auth.,896 P.2d 859
Ali V. fixed in • � Rersar g of revenue 60 (Colo.
98 alter
County School statute crew of debt requiring not con-
„Ts V. STATE MANDA
on fixed
earlier o under this on becauseuiring voter approval "Subsidy" e
of
i under P.2d bondsofconstituted95 a firma- •i does not create new debt,imposee a any ti x, impesponsi Ae es unte hy mancou se is is codey
secnd the •firm t- or expose taxpay to an ia ty its responsibilities to subsection
iod(9 human apted turnback county se
is nevertheless ethissec was not sub obligation. Board Y new liability or when a county sub services n
(b), the bond subject to E-070 Public H County Commits v. when a section(9)was invalid because
lot create any remarketing Hwy.,8 P.2d 412(Colo.App, (itself a political subdivision
:e), since obligation,it the state)attempts to subs. beg to ion of
newt was o authorized Under this section, boo Therefore,r, o county's u county, date the state,the
ceted debt this section under the sinus' fiscal spending only debt amount of Y contributes to itself.acing of plant adopted the debt seed the of contribution to cost of
issued. Boardat the time service,not by the am t of the nor- social services program is not a"subsidy"and
-qis PublicCounty rowed funds expended; thus,the subsection(9)does not apply.
Hwy, of Co 881 ' of the escrowed bond proceeds for xPe er con- of County Commits, Romer v.Board
APP. 1994);Nichrll v.E-881 struction and the o ercon- Weld an Ca erm 897 P.2d
th.,896 P.2d 859 "� does not impact operation of E-470 .779(Colo.1995).
(Colo.1995), annual fiscal spend. day and local section did not f change
eats'loan repayment was a new not subject to the voter approval °g' d is character of social B the mixed state obligation to which subsection of subsection 7 Board of County services.Romer v.
d Authority must obtain voter �` Comm' ( )(d)• Board.Aof C tin B Commis,Weld County,
incurring debt.Nicholl v. Commits v. E-470 Public H . Auth., 881 P.2d 779(Colo. to ys 897
y.Auth., P.2d 412(Colo.App. 1994);Nicholl v.E-470A scounty's duties, to
n urrin this P.2d Ni hol:v. Public H .Auth.,896 P.2d 859 including the e n courtsystem,
The collection (Colo.1995). nded security, may not be redo and expenditure of Ruth s in rd pursuant to subsectionreduced or
)INGANDREVENUE' revenues for service on bonds of County (9). State v.
LIMITS. P. 788 Commis,Mesa County,897
(Colo.1995).
-eat outdoors Colorado trust
a local government private ARTICLE XI
to state,or enterprise under q'.
essentially governmental in . .
reading of Public" Indebtedness
this section is to -
thatyear spending limits Section 1. Pledging credit of state,tone fiscal are non-governmental
anon is the into county,city,town or schoo istriet forbidden.
interpretation
Law'renews.
ssion ofInterrogatoriesato of '' For article, "The Harm in Hold renewal plans by local
2 P.2d most the on Clauses",see 19 Colo,Law. Harmless not violate this section.venting Denver 74( does
le XVI(of the Colorado constitutional incurred for public (purpose.)' This 1980 Renewal
Auth.v.Byrne,618 Urban
is the proscription ) 2d 1374(Colo.
.one Benersi assembly where a city's obligations is Inapplicable Where the on revenues assembly
bl public purpose. Gude v. City e incurred for a private company tual
o the o is that of a
ed gaming commission 636 P,2dfi9d r Lakewmori Puny and not the city, i, 's not an
this section,and insofar `, Suction 31-25-10713co 186).Witcher z.nconsilv,tional pledge of the city credit.
ed by (9)conatitstioCanon City, 716 tit
limited gaming *. 31-25-107 (9), relating °sot urban
1986). Y P.2d 445 010.
'ear to violate the spend_ to approval of urban
this section,the general
Y with this section by Sestina 2. No aid to co'llected elsewhere, or if ' or school district, corporations"no joint ownership:r the fact, the P by state, county, city, town,
with this section general
eget b Notwithstanding the apparent absolute pro- does not require a
to taxpayers. Submis- hibition of this section, a "public
on Senate Bill 93.74 has evolved. In re House purpose" state to private grant or 814 donation from the
91 exception,814 P.2d 875 re House Bill 91 S-1005, or company.In
invoke the "preferred Statute, on its f (Colo.1991). 1991). 005, P.2d 875
burden of establishing
section it provides
does not violate this (Colo.
action B #. ." des' P verism for appropriations from a displaced b yment of orb relocation benefits to
of this section a designated if i state fund to a political subdivision Persons
_ which may vision tional. The Ya u° renewal not benefits
to
- benefit a private corporation but persons displ
aced y t of relocation benefits to
by an urban renewal project
Sec.3
Constitution of Colorado 212 213
Applied in Luja
does not constitute an unconstitutional Therefore, the constitutional provision pro- Educ.,649 P.2d 1C
expenditure of public funds in the aid of pri- hibiting state ownership of corporate stock fi,
vete persons.Denver Urban Renewal Auth.v. was never intended to prohibit state owner- , II. Al
Byrne,618 P.2d 1374(Colo.1980). - ship of shares in a mutual ditch company.S.E. it
State ownership of shares in a mutual ditch Colo.Water Cons.v.Ft.Lyon Canal Co.,720 Debt financing t
company not prohibited. In view of mutual P.2d 133(Colo.1986). - ganized uotreraih
ditch companies'special treatment in the con- Rule requiring a municipality-utility ars- tional under this s
amnion and siuiuico, anarr-arr.-_t=c' m=" !lather! er to my s motion of the cost of new utility allegedly"private'
be made by the general assembly for the sole facilities does not violate this section where fact remained a p,
purpose that the division of wildlife purchase municipality received consideration for its of Public Employ,
water shares; and, since a line of Colorado payments, placing ownership of the facilities
court cases hold that mutual ditch companies in the utility enhances the utility's ability to
perform its duties,and the expenditure by the Section 4. U
are not"true" corporations but merely vehi- Pei
des for individual ownership of water rights,it municipality serves a valid public purpose. '
is clear that stock ownership in a mutual ditch City of Aurora v. P.U.C., 785 P.2d 1280Discretionary no o
io•
company constitutes ownership of a real prop- (Colo.1990). .-
not ce
erty interest in water rights rather than a per- . Applied in Witcher v.Canon City,716 P.2d Lakewood,636 P.:
sonal property interest in corporate stock. 445(Colo.1986). ',
Section 5. D
. Section 3. Public debt of state limitations.The state shall not contract any debt ` Applied in Luj;
b oan in any form,except to provide for casual deficiencies of revenue,erect public Educ.,649 P.2d 1,
bu' •'ngs for the use of the state, suppress insurrection, defend the state, or, in time
of w• assist in defending the United States; and the amount of debt contracted ' Section 6. L
in any • :e year to provide for deficiencies of revenue shall not exceed one-fourth •,,
of a mill • • each dollar of valuation of taxable property within the state, and the aggregate • unt of such debt shall not at any time exceed three-fourths of a millI. General
Gneral
on each dollar • said valuation,until the valuation shall equal one hundred millions II. Genera•
of dollars, and th after such debt shall not exceed one hundred thousand dollars; A In G
and the debt incurr • in any one year for erection of public buildings shall not exceed B. App
one-half mill on eac' dollar of said valuation; and the aggregate amount of such I. GENEIL
debt shall never at any '• e exceed the sum of fifty thousand dollars(except as pro-
vided in section 5 of this • 'cle), and in all cases the valuation in this section men- "Debt by loan
tioned shall be that of the ass:.sment last preceding the creation of said debt. "multiple-fiscal y
`
debtor other frna
As amended November 3, 1"' —Effective upon proclamation of the Governor,` contained in antic
January 14, 1993. (For the text • the amendment and the votes cast thereon, see redo Constitutior
L.92,p.2317 and L.93,p.2159.) not require a res,
"debt by loan in
section. Boulder
re
I. General Consideration. - Statute, on its face, does not violate thiseve- < s 2d 199(Colo.A
D. Applications. , - iron if it neither pledges future state ve-t.. Discretionary
es nor imposes obligations that would s' not a constitutic
etionary,
I. GENERAL CONSIDERATION. _.:'re future revenues from a tax otherwise •T Lakewood,636 P
avail:•le for general purposes. In re House
Financing include:
I)which have been upheld bn Bill 91'. 005,814 P.2d 875(Colo.1991). i'r; Rental obligati
which e court include: funds Special fund rom in To co : edebt in constitutional,etc. there is no show]
the borrowed are repaid from the Some of . indications of a debt in the urn- be insufficient t•
revenue generated by the improvement; (2) stitutional s •se are that the obli afion' including rentals
cases in which the e of the
money is(a pledges revenu of future years, that it '- rental obligation,
public entity independent the state;and to3) quires use of rev..ue from a tax otherwise i stitute debt in c
cases in which the state enters into available for genera •urposes, that it is a"" Gude v. City o
lease/purchase agreements for a building or legally enforceable obli r: ion against the state' (Colo.1981).
other •
renot improvement to renew and in which the parties nd in future years,or that app priation by future ' A master lease
are Colorado o the Public u at the Employees o of general assemblies of mon in payment of , a limited partner,
the year. ts,n04 i 138Colo. the obligation is nondiscretio-: . Glennon ``' prohibition again
v. Board of Regents, 804 P.2d 138 (Colo. Heights, Inc. v. Central Bank Trust, 658 ,,• and was ultra r
19Tes. P.2d 872(Colo.1983). :c a because the leas,
#- Test of whether financing I device violates Discretionary or contingent oblige• p us are -"' cancellation by t
this section is applied in In re House Bill no a constitutional debt. Gude v. of five-year term,a:
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RESOLUTION
RE: APPROVE LEASE AND AUTHORIZE CHAIR TO SIGN -WOLFE AND SCHEERE,
LLC, DBA WINONA'S DELI
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with a Lease between the County of Weld,
State of Colorado, by and through the Board of County Commissioners of Weld County and
Wolfe and Scheere, LLC, dba Winona's Deli, 915 10th Street, Greeley, Colorado 80631,
commencing September 1, 1998, and ending August 31, 2002, with further terms and
conditions being as stated in said lease, and
WHEREAS, after review, the Board deems it advisable to approve said lease, a copy of
which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County, Colorado, that the Lease between the County of Weld, State of Colorado, by and
through the Board of County Commissioners of Weld County, and Wolfe and Scheere, LLC,
dba Winona's Deli, be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said lease.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 15th day of July, A.D., 1998.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: ' '� " y's EXCUSED DATE OF SIGNING
^ Constance L. Harbert, Chair
Weld County Clerk t S ' q
i 'v ►� �� W. H. ebster, Pro-Tem
BY:
Deputy Clerk to t 1
eorg . Baxter
AP A FORM:
Dale K. Hall
unty for ey EXCUSED DATE OF SIGNING
Barbara J. Kirkmeyer
2
081234
6C PR�I
; /' A; W o-fC1.ec4t PR0015
98/ 7/
LEASE
THIS LEASE, made and entered into this 1st day of September, 1998, by and between
THE COUNTY OF WELD, State of Colorado, by and through the Board of County
Commissioners of the County of Weld, 915 Tenth Street, Greeley, Colorado 80631, hereinafter
referred to as "Lessor," and WOLFE & SCHEERE, LLC, d/b/a Winona's Deli, 915 Tenth Street,
Greeley, Colorado 80631, hereinafter referred to as "Lessee."
WITNESSETH:
That in consideration of the payment of the rent and the keeping and performance of the
covenants and agreements by Lessee, hereinafter set forth, Lessor hereby leases unto Lessee the
following described premises, situated in the County of Weld and in the State of Colorado, to-
wit: commercial space known commonly as the "Second Floor Centennial Complex Deli Area"
and located at 915 Tenth Street, Greeley, Colorado 80631.
TO HAVE AND TO HOLD the same with the appurtenances unto Lessee from the 1st
day of September, 1998, to and until August 31, 2002, with the option for an additional one-year
term upon the consent and agreement of both parties, at and for a rental, for the full term
aforesaid, of $2,400.00 per year, payable in monthly installments of $200.00 per month, in
advance, on or before the first day of each calendar month during said term at the office of the
Lessor.
Furthermore, the Lessee, in consideration of leasing of said premises as aforesaid,
covenants and agrees as follows:
a. To pay the rent for the aforesaid premises as hereinabove provided;
b. To use ordinary care when using the improvements upon said premises;
c. To sublet no part of said premises, nor assign this Lease or any interest herein,
without the prior written consent of the Lessor;
d. To use said premises for no purpose other than conducting the business known as
"Winona's Deli;"
e. To keep said premises clean, and in the sanitary condition required by the
Ordinances and the Health and Police Regulations of the City of Greeley and/or
the County of Weld;
f. To neither hold nor attempt to hold the Lessor liable for any injury or damage,
either proximate or remote, occurring through or caused by any repairs,
Page 1 of 4 Pages
W/'7i 'A
alterations, injury, or accident to the premises by reason of the negligence, default,
or omission of the Lessor or its officers, employees, or agents;
g. To allow Lessor at any reasonable hour of the day to enter into or upon and go
through and view said premises, or make any reasonable repairs to the premises or
improvements or equipment therein.
Furthermore, the parties hereto agree as follows:
That all costs for utilities and trash removal shall be paid for by Lessor;
2. That no assent, express or implied, to any breach of any one or more of the
covenants or agreements hereof shall be deemed or taken to be a waiver of any
succeeding or other breach;
3. That if, after the expiration of the term of this Lease, the Lessee shall desire to
remain in possession of said premises, and continue to pay rent for an additional
one-year term, this Lease shall continue for such extended term under the same
terms and conditions set forth herein;
4. That in case said premises are left vacant and any part of the rent therein reserved
to be unpaid, then the Lessor may, without anywise being obligated to do so, and
without terminating this Lease, retake possession of said premises and rent the
same for such rent and upon such conditions as the Lessor may think best, making
such changes and repairs as may be required, giving credit for the amount of rent
so received less all expenses of such changes and repairs, and Lessee shall be
liable for the balance of the rent herein reserved until the expiration of the term of
this Lease.
5. That the Lessee may, at its option, place a small sign on the wall within the
Centennial Center building first floor, and two small sandwich board signs on
sidewalks outside the building, indicating that Winona's Deli is located for
business on the second floor. Lessor has exclusive right to approve or disapprove
the type and location of such signage.
6. That the Lessee shall include the Lessor, its officers and employees, as additional
named insureds on a fire, property, casualty, and liability insurance policy, at a
minimum of $600,000 coverage limit, for the operation of the deli, for the
Lessess's personal property, including Lessee's equipment, and for third-party
liability. Such insurance shall include business interruption.
7. That Lessee agrees to indemnify, save, and hold harmless Lessor from any and all
loss, injury, or damage whatsoever, including, but not limited to, business
Page 2 of 4 Pages
9i7/ 2'
--49/
interruption, incurred by Lessee as the result of fire, flood, inclement weather, or
other casualty.
8. That Lessor shall own and maintain the icemaker and cooler. The Lessee shall be
responsible to own and maintain all other equipment and personal property used
by the Lessee in the operation of the deli.
9. That Lessee shall be responsible to keep the food preparation, food sales, and
eating areas of the second floor deli in a clean and tidy condition.
10. That Lessee shall not be entitled to parking spaces within the Weld County
Parking Structure or parking spaces around the Centennial Center Complex
building.
11. That Lessee may terminate and void this Lease of four (4) years upon sixty (60)
days written notice provided to Lessor at the address set forth above. Lessor may
terminate this Lease upon one-hundred twenty (120) days written notice provided
to the Lessee at the address set forth above.
12. That this Lease may not be assigned or sublet by Lessee to any other person or
entity without the express written consent of the Lessor.
IT IS EXPRESSLY UNDERSTOOD AND AGREED by and between the parties herein,
that if the rent above reserved or any part thereof, shall be arrears or if default shall be made in
any of the covenants or agreements herein contained, to be kept by the Lessee, it shall and may
be lawful for the Lessor to declare said term ended and enter into said premises, or any part
thereof, either with or without process of law, to reenter, and Lessee or any person or persons
occupying the same,to expel,remove, and put out, using such force as may be necessary in doing
so, without being liable to prosecution or any damage therefor, and the said premises again to
repossess and enjoy, is in the first and former estate of the Lessor and if at any time said term
shall be ended as aforesaid or in any other way, the Lessee hereby covenants and agrees to
surrender and deliver up said premises peaceably to Lessor immediately upon the termination of
said term, and if the Lessee shall remain in possession of the same after the termination thereof,
Lessee shall be deemed guilty of a forcible detainer of said premises under the statute, hereby
waiving all notice, and shall be subject to eviction and removal, forcibly or otherwise, with or
without process of law, as above stated.
IT IS FURTHER EXPRESSLY UNDERSTOOD AND AGREED that all the covenants
and agreements in this Lease contained shall extend to and be binding upon the heirs, executors,
legal representatives, and assigns of the respective parties hereto.
This Lease is made by and between the parties hereto with the express understanding and
agreement that in the event Lessee becomes insolvent or is declared bankrupt, then, in either
Page 3 of 4 Pages
event, the Lessor may declare this lease ended, and all rights to Lessee hereunder shall thereupon
terminate and cease.
IN WITNESS WHEREOF, the parties hereto have hereunder set their hands and seals the
day and year first written above.
LESSOR:
�A / /�/I //f I COUNTY OF WELD, STATE OF
III 1 , `
!y / Oi1j COLORADO by and through
the Board of County Commissioners of
1°d1► CP 'uit .C, erk t the Board the County of Weld
sDr war to the Board ___� Constance L. Harbert, Chair
LESSEE:
WOLFE & SCHEERE, LLC, d/b/a
Winona's Deli /
By. LMernIZ/i*
By: Sni seite,
Connie Lou Scheere, Member
STATE OF COLORADO )
County of Weld ) ss.
11-1
The forgoing instrument was acknowledged before me this/4 tray of It��
1998, by Cindy Lavon Wolfe, Member, and Connie Lou Scheere, MemhE , aLFE &
SCHEERE, LLC, d/b/a Winona's Deli.
hand and official seal. (/�
PA,�....I/@` IiLR J_ JC.JGC.Pna.c.��
p;• Notary Public
' ' isCsi; expires: /0-1 -ol-cOo
LE-in-WOMAN •
i
•' 18.1
OF get
Page 4 of 4 Pages
My Comm.Expires Oct.7.2000
qtr 7/a
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