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HomeMy WebLinkAbout8245Reception #: 1188456 Date: 10/03/1997 Time: 320 Book: 3042 Page: 908 Chris C. Munoz Inst: RES R Fee: 5.00 D Fee: 0.00 SC: 1.00 Pg: 1 of i Pueblo Co.Clk. &Rec. RESOLUTION NO. 8245 A RESOLUTION APPROVING AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND FOUNDATION HEALTH SYSTEMS, INC. AND THE QUIT CLAIM DEED ATTACHED THERETO CONVEYING REAL PROPERTY FOR A STANDBY ELECTRICAL GENERATION FACILITY AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The Agreement dated September 22, 1997 between Pueblo and Foundation Health Systems, Inc. and the Quit Claim Deed attached thereto conveying real property for a standby electrical generation facility, having been approved as to form by the City Attorney, are hereby approved.. SECTION 2 The President is authorized to execute and deliver the Agreement and Quit Claim Deed in the name of Pueblo, a municipal corporation, and the City Clerk is directed to affix the seal of the City thereto and attest same. ATTEST! City Cler INTRODUCED: September 22, , 1997 By John Verna Councilperson APPROVED: President of City uncil Reception #: 1188457 Date: 10/03/1997 Time: 322 Book: 3042 Page: 909 Chris C. Munoz Inst: AGREE R Fee: 60.00 D Fee: 0.00 SC: 1.00 Pg: 1 of 12 Pueblo Co.Clk.&Rec. AGREEMENT THIS AGREEMENT entered into as of September 1997 between Pueblo, a municipal corporation (the "City ") and Foundation Health Systems, Inc., a Delnrw-we corporation (the "Company "). WHEREAS, Company desires to acquire land from the City to construct a standby electric generation facility, and WHEREAS, City is willing to convey land to Company for such purpose upon the terms, covenants and conditions herein set forth. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, City and Company agree as follows: Definitions In addition to the terms otherwise defined herein, the following terms shall have the following meanings unless the context clearly indicates otherwise: "Architect" means a competent and qualified architect engaged by Company to prepare the Plans and Specifications and oversee the construction of the Facility. Book: 3042 Page: 910 Chris C. Munoz Page: 2 of 12 Pueblo Co.Clk. &Rec. "Company's Buildings" means the buildings including fixtures, machinery and equipment therein located on West 4th Street between Main and Court Streets, Pueblo, Colorado, owned and operated by Company. "Facility" means a standby electric generation facility consisting of two 1 megawatt electric generators and related appurtenances including a 6,000 gallon above - ground fuel storage tank completely enclosed within the same building. "Facility Land" means the approximately 3,030 square feet of land described in the attached Exhibit "A ". "Laws and Regulations" means all federal, state, and local laws, ordinances, codes and regu- lations applicable to the Facility including without limitation, those pertaining to hazardous waste and materials, petroleum and petroleum products, air quality, and noise, and building and fire codes. "Land" means Lot 9 and that portion of Lot 10 included within the Facility Land, Block 33 of the platted City of Pueblo, filed March 1869, County of Pueblo, State of Colorado. "Local Utility" means the entity which holds the franchise to conduct and operate an electric utility within Pueblo, Colorado. "Plans and Specifications" means the design, specifications and working drawings for the -2- Book: 3042 Page: 911 Chris C. Munoz Page: 3 of 12 Pueblo Co.Clk. &Rec. construction and installation of the Facility prepared by the Architect and approved by Company and City's Director of Public Works. "Rearrangement of Property Boundaries" means the rearrangement of property boundaries to establish changed building sites pursuant to Section 12- 4 -5(C) of the 1971 Code of Ordinances of the City. Conveyance Upon completion and approval of the Rearrangement of Property Boundaries and receipt by City from Company of the sum of $ W . O , within thirty (30) days after date of this Agreement, City will execute and deliver to Company the attached quit claim deed conveying to Company the City's right, title and interest in and to the Land as long as the Facility Land is used for the Facility, reserving however to the City, its successors and assigns, in perpetuity, the right, privilege and option to use and occupy the Land except the surface of the Facility Land (but not the air rights above the Facility), for parking, or parking facility or facilities, or any other lawful or public purpose, and, if, for any such purpose, Company's written consent or approval is required, Company shall execute and deliver such consent or approval in form and content acceptable to City within ten (10) days after written request by City. If Company does not execute and deliver such written consent and approval within said 10 -day period, Company appoints City as its true and lawful attorney -in -fact to execute and deliver such consent or approval in the name and on behalf of Company. It is the expressed intent of the parties, this Agreement, and the quit claim deed, to convey the Land to Company in order for Company to construct the Facility on the Facility Land and to allow and permit City under its reserved rights to use the balance of the Land -3- Book: 3042 Page: 412 Chris C. Munoz Page: 4 of 12 Pueblo Co.Clk.&Rec. and /or to install a parking structure on the Land and over the Facility and the Facility Land. In explanation, Company has requested and desires to own rather than lease the Facility Land and City is unable under its existing subdivision and other ordinances to convey the Facility Land which is located on two subdivided lots and consist of approximately 3,030 square feet; therefore, in order to accomplish Company's request and desire, City must approve an appropriate Rearrangement of Property Boundaries and convey all of the Land to Company with appropriate reservations described in this paragraph 1. 2. Rearrangement of Property Boundaries Company shall cause to be prepared and submitted to City's Subdivision Review Committee for review and approval a plat showing the proposed Rearrangement of Property Boundaries to establish a separate building site for the Land which plat shall include and establish a separate building site for the other lots and vacated alley within the same block owned by the City. 3. Representations The Land shall be transferred by City and accepted by Company "AS IS ", "WHERE IS." Company acknowledges and agrees that City makes no representation or warranty with respect to the Land or its condition, environmental or otherwise. Company shall be responsible for and shall indemnify and hold City harmless from and against all claims, costs, liabilities, expenses (including without limitation, court costs and attorney fees), penalties, remedial and clean -up costs, or demands of whatever nature or source for any condition, defect or environmental problem, latent or obvious, now existing or hereafter discovered, created or caused, in, on, under, from or within the Land or the Facility, or incurred by reason of, or resulting from n Book: 3042 Page: 913 Chris C. Munoz Page: 5 of 12 Pueblo Co.C1k.&Rec. the existence, release, emission, discharge or removal of any hazardous material or waste, or petroleum or petroleum based products or by- products or exhaust from their combustion, in, on, under, within, from, or about the Land and /or the Facility. 4. Facility Construction Company will accept the quit claim from City and will use and occupy the Facility Land for the Facility. Company shall expeditiously install, construct, maintain and operate the Facility is a careful, safe and proper manner in compliance with the Plans and Specifications, this Agreement and all Laws and Regulations. If the Facility is not substantially constructed and completed within 180 days from date of this Agreement, Company shall reconvey the Land to City by special warranty deed subject only to the liens, encumbrances, restrictions, reservations, rights of way, easements and conditions existing of record at the time of delivery of City's quit claim deed to Company. Upon City's receipt of such special warranty deed duly executed and acknowledged for recording, this Agreement shall terminate and the parties shall be released and discharged from all future obligations hereunder. 5. Facili1y Use It is the expressed intent and understanding of the parties, that the Land is conveyed by City and the Facility is to be constructed by Company on the Facility Land for the limited purpose of making available an emergency supply of electricity and electric power and service for Company's Buildings. Therefore, all electricity and electric power generated or produced by the Facility shall be distributed, used and consumed in Company's Buildings solely in the event of, and during the temporary loss of, or interruption in electrical power and service being furnished or supplied by the Local Utility. Company shall not operate or permit the Facility to be operated -5- Book: 3042 Page: 914 Chris C. Munoz Page: 6 of 12 Pueblo Co.Clk. &Rec. to generate or produce electricity or electric power for sale or distribution or use by the Local Utility or by any other person, entity or facility, provided, however that electricity or electric power generated or produced during the limited periods of one or two hours per week when the Facility is operated to verify capacity may be sold or distributed to the Local Utility. 6. Approval Company shall not commence construction or installation of the Facility on the Facility Land until after the Plans and Specifications therefor have been submitted to and approved by City's Director of Public Works, which approval shall not be unreasonably delayed or withheld. Such approval shall not impose any liability or obligation on the City or the City's Director of Public Works with respect to the Plans and Specifications, including without limitation, the design, suitability, safety or function of the Facility. 7. Covenant Running With Land And Enforcement This Agreement and all its covenants and conditions are and shall be construed to be covenants running with the Land, inuring to the benefit of and binding upon City and Company, and their respective successors and assigns, and the Land, enforceable by City or Company by action in law or equity, including injunction and specific performance, without the necessity of showing a lack of an adequate remedy at law. In the event of any litigation arising out of this Agreement or its enforcement, the Court shall award the prevailing party its costs and expenses, including reasonable expert witness and attorney fees. Venue for all such litigation shall be in Pueblo County, Colorado and filed in the District Court, County of Pueblo, State of Colorado, and City and Company submit to the jurisdiction of that Court. To the extent permitted by law, City and Company each waive its right, if any, to a jury trial. IN Book: 3042 Page: 915 Chris C. Munoz Page: 7 of 12 Pueblo Co.C1k.&Rec. 8. Notice All notices or communications of any kind which may be given or required to be given under this Agreement shall be sufficiently given if served personally or mailed by certified mail, postage prepaid, as follows: (a) if to City: City Manager, 1 City Hall Place, Pueblo, Colorado, 81003; (b) if to Company: 225 N. Main Street, Pueblo, Colorado, 81003, Attention: Legal Department. (or to such other address or person as may hereafter from time to time be designated for this purpose by City or Company in writing given as above provided). 9. Assignment Lessee shall not have the right to assign this Agreement or any of its rights hereunder without the prior written consent of City, which consent will not be unreasonably withheld or delayed. Company shall have the right, however, without the consent of the City, to assign this Agreement to any financially responsible entity to which Company transfers title to Company's Buildings, provided, that in the event of any such assignment, Company shall remain liable for Company's obligations under this Agreement. Notwithstanding the foregoing, a merger of Company with, acquisition of Company by, or sale of substantially all of Company's assets as a going concern to any third party shall not constitute an assignment of this Agreement. 10. Merger The covenants and conditions contained in this Agreement shall not merge -7- Book: 3042 Page: 916 Chris C. Munoz Page: 8 of 12 Pueblo Co.C1k.&Rec. with or into the quit claim deed to be executed and delivered by City to Company hereunder. On the contrary, all covenants and conditions of this Agreement shall survive the delivery and recording of said quit claim deed. 11. Miscellaneous Provisions (a) Colorado Law This Agreement shall be governed by the laws of the State of Colorado and shall be construed in accordance therewith. (b) Writing for Waiver or Modification No provision of this Agreement may be waived or modified except by an agreement in writing signed by the waiving party. A waiver of any term or provision shall not be construed as a waiver of any other term or provision. (c) Complete Understanding This Agreement sets forth the entire and complete understanding and agreement of the parties hereto. The parties agree to do any and all things lawful and necessary to effectuate the purpose of this Agreement. (d) Construction Throughout this Agreement, the singular shall include the plural; the plural shall include the singular; and the masculine and neuter shall include the feminine, wherever the context so requires. (e) Text to Control The headings of sections are included solely for convenience Book: 3042 Page: 917 Chris C. Munoz Page: 9 of 12 Pueblo Co.Clk. &Rec. of reference. If any conflict between any heading and the text of this Agreement exists, the text shall control. (f) Severability If any provisions of this Agreement is declared by any court of competent jurisdiction to be invalid for any reason, such invalidity shall not effect the remaining provisions. On the contrary, such remaining provisions shall be fully severable, and this Agreement shall be construed and enforced as if such invalid provisions had never been inserted in the Agreement. (g) Third -Party Beneficiary Nothing in this Agreement, expressed or implied, is intended nor shall be construed to confer upon, or give to, any person or entity other than the City and Company and their respective successors and assigns, any right, remedy or claim under or by reason of this Agreement or any covenant, condition or provision hereof, and all covenants, conditions, provisions contained in this Agreement by or on behalf of City or Company shall be for the exclusive and sole benefit of City and Company and their respective successors and assigns. (h) Waiver and Time of Essence No waiver of any breach or breaches of any provision, covenant or condition of this Agreement shall be construed to be a waiver of any preceding or succeeding breach of such provision, covenant or condition, or of any other provision, covenant or condition; and time is of the essence for each and every provision, covenant and condition herein contained and on the part of Company or City to be done and performed. Q Book: 3042 Page: 918 Chris C. Munoz Page: 10 of 12 Pueblo Co.Clk. &Rec. IN WITNESS WHEREOF, City and Company, by their duly authorized representatives, haves Agreement on the day and year first above written. PUE O A MUNICIPAL CORPORATION A,tteest: B ` thy, GIer President of t4 City 96uncil FOUNDATION HEALTH SYSTEMS, INC. Attest: Title: STATE OF COLORADO ) COUNTY OF PUEBLO ) ss. By AJO �� Title: �,w ` Fo-s The foregoing instrument was acknowledged before this _,�I�jday of September, 1997 by Cathy Garcia as President of City Council and Gina Dutcher, City Clerk of Pueblo, a municipal corporation. Witness my hand and official seal. My.c'ommission expires: 1 3 TA `;A , STATE OF L' ! Urad U COUNTY OF - Pjj eb j L' ss. The foregoing instrument was acknowledged before this l94K day of September, 1997 by of Foundation Health Systems, Inc., a corporation. Witness my hand and official seal. iy commission expires: S° i u - C1 JACIMPUBLIC W\CNSTRCTN\AGREEMEN.WPD -10- G" S -0—y Notary Publi 1 11111111111111111111111111111111111111111111111111 IN 1191915 10/30/1997 04:08P 83031 P474 QUIT 1 of 1 R 6.00 D 0.00 N 0.00 Pueblo Cty Clk & Rec QUIT CLAIM DEED THIS DEED, made this 22nd day of September, 1997 between Pueblo, a municipal corporation duly organized and existing under and by virtue of the laws of the State of Colorado, Grantor, and Foundation Health Systems, Inc., a corporation duly organized and existing under and by virtue of the laws of the State of Delaware, Grantee, whose legal address is 225 N. Main Street, Pueblo, Colorado, 81003. WITNESS, That the Grantor, for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, has remised, released, sold and QUIT CLAIMED, and by these presents does remise, release, sell and QUIT CLAIM unto the Grantee, its successors and assigns so long as the herein described real property is used for and occupied in accordance and compliance with the reservations, limitations, covenants and conditions contained in the Agreement of even date between Grantor and Grantee recorded in Book 3042 at Page 909 of the records of the Pueblo County Clerk and Recorder (the "Covenants and Reservations "), which are incorporated herein by reference, all the right, title, interest, claim and demand which the Grantor has in and to the real property, except and subject to the Covenants and Reservations, situate, lying and being in the County of Pueblo and State of Colorado, described as follows: All of Lot 9 and the North 61.00 feet of the West 5.70 feet of Lot 10, Block 33 of the platted Plan of Pueblo filed March 1869, also known and designated as Parcel A on the Rearrangement of Property Boundaries of Lots 9, 10 and 11, Block 33, Plan of Pueblo, located in the NE 1/4 of Section 36, Township 20 South, Range 65 West, of the 6th P.M., Pueblo County, Colorado. TO HAVE AND TO HOLD the same, together with all and singular the appurtenances and privileges thereunto appertaining, and all the estate, right, title, interest and claim whatsoever, of the Grantor, either in law or equity, except and subject to the Covenants and Reservations, to the only proper use, benefit and behoof of the Grantee, its successors and assigns for the use and purpose stated in the Covenants and Reservations. IN WITNESS WHEREOF, The Grantor has caused its name to be hereunto subscribed by the President of the City Council, and its seal to be hereunto affixed, attested by its City Clerk, the day and fix t above written. PUE LO, A MUNICIPAL CORPORATION COUNTY OF PUEBLO ) STATE OF COLORADO ) ss. The foregoing instrument was acknowledged before me this 74 day of &C - 4.4 -el , 1997 by Cathy Garcia as President of the City Council and Gina Dutcher, as City Clerk of Pueblo, a municipal corporation. Witness my hand and official seal. My commission expires: 2- 7 _ a c o U By 6 President of th Co cil � =bL t-CIW wtau� N y Public