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HomeMy WebLinkAbout09315RESOLUTION NO. 9315 A RESOLUTION APPROVING A CONTRACT TO BUY AND SELL REAL ESTATE AND ATTACHED SPECIAL WARRANTY DEED BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND UTILICORP UNITED, INC., RELATING TO THE SALE OF APPROXIMATELY 2.87 ACRES OF LAND AT PUEBLO MEMORIAL AIRPORT AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE THE CONTRACT AND SPECIAL WARRANTY DEED BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Contract To Buy and Sell Real Estate and attached Special Warranty Deed between Pueblo, a Municipal Corporation and UtiliCorp United, Inc. relating to the sale of approximately 2.87 acres of land at Pueblo Memorial Airport, copies of which are attached hereto, having been approved as to form by the City Attorney, are hereby approved. SECTION 2. The President of the City Council is authorized to execute and deliver in the name of the City the Contract To Buy and Sell Real Estate and Special Warranty Deed, and the City Clerk is directed to affix the seal of the City thereto and attest same. INTRODUCED: June 11, 2001 No P"SIDENT-OF THE CITY COUNCIL ATTESTED BY: CIT , LERK CONTRACT TO BUY AND SELL REAL ESTATE THIS CONTRACT entered into as of May 28, 2001 between City of Pueblo, a Municipal Corporation, 1 City Hall Place, Pueblo, Colorado, 81003 (the "Seller ") and UtiliCorp United, Inc., a Delaware Corporation, 105 S. Victoria Avenue, Pueblo, Colorado, 81003 (the 'Buyer "), WITNESSETH: Recitals A. Seller is the owner of certain real property located in Pueblo County, Colorado. B. Buyer is desirous of purchasing the real property from City. C. Seller is willing to sell the real property to Buyer upon the terms and conditions hereinafter set forth. Agreement NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual covenants contained herein, Seller and Buyer agree as follows: 1. Property Seller agrees to sell and Buyer agrees to purchase on the term and conditions set forth in this Contract the land described in Exhibit "A" annexed hereto and made a part hereof (herein the "Property "). Buyer has been in possession and use of the Property and has installed its improvements thereon. Therefore, the Property does not include improvements and fixtures. 2. Purchase Price and Terms The purchase price for the Property shall be $50,000.00, payable in U.S. Dollars by Buyer on Closing Date contemporaneously upon Buyer's receipt of the Special Warranty Deed described in paragraph 5 hereof. 3. Evidence of Title Buyer shall at its expense obtain title insurance and satisfy itself as to the condition of title to the Property. If Buyer is not satisfied with the condition of title, Buyer may terminate this Contract by written notice given to Seller before Closing Date. 4. Date of Closing The date of closing shall be June 15, 2001, or by mutual agreement at an earlier or later date ( "Closing Date "). The hour and place of Closing shall be designated by Seller. 5. Transfer of Title Subject to tender or payment as required herein and compliance by Buyer with the other terms and provisions hereof, Seller shall execute and deliver to Buyer the Special Warranty Deed attached hereto, conveying title to the Property to Buyer subject to the restrictions, reservations, covenants, easements, and conditions set forth in the Special Warranty Deed. 6. Condition of the Property Buyer represents, agrees and acknowledges that: (a) Seller hereby disclaims any warranty or representation, expressed or implied, with respect to any aspect, portion or component of the Property, including, but not limited to: (i) the quantity, condition, nature or quality of the Property, including, but not limited to, the quality of soils on or under the Property; (ii) the fitness of the Property for any particular use; (iii) the presence or suspected presence of hazardous materials on, in, under or about the Property; (iv) the financial benefits, income, expenses, profits or losses to be achieved, derived or incurred as a result of the ownership, operation, leasing or management of the Property; or (v) existing or proposed governmental laws or regulations applicable to the Property, or the further development or changing use thereof, including environmental laws and laws or regulations relating to zoning, land use or building, or the existence of any approvals or authorizations of any kind or nature of or from any governmental authority. (b) In entering into this Contract Buyer has not relied on any representation, statement or warranty of Seller, or anyone acting for or on behalf of Seller, and all matters concerning the Property have been or will be independently verified by Buyer. If Buyer purchases the Property, Buyer agrees that it shall have relied entirely on its own investigation, examination and inspection of the Property and all matters pertaining thereto; Buyer is purchasing the Property on an "AS IS" basis and in its condition on the date of delivery of the Special Warranty Deed. 7. Possession Possession of the Property will be delivered to Buyer by Seller "AS IS" upon delivery of the Special Warranty Deed, subject to the rights, if any, of parties in possession of the Property. 8. Time of Essence /Remedies Time is of the essence hereof. If any payment due hereunder is not paid, honored or tendered when due, or if any other obligation is not performed or waived as herein provided, there shall be the following remedies: (a) If Buyer is in Default Seller may elect to treat this Contract as canceled, in which case all payments and things of value received hereunder shall be forfeited and retained on behalf of Seller, or Seller may elect to treat this Contract as being in full force and effect and Seller shall have the right to specific performance but not to damages. (b) If Seller is in Default Buyer may elect to treat this Contract as canceled, in which case all payments and things of value received hereunder shall be returned, or Buyer may elect to treat this Contract as being in full force and effect and Buyer shall have the right to specific performance but not to damages. (c) Costs and Expenses Anything to the contrary herein notwithstanding, in the event of any litigation arising out of this Contract, the court shall award to the prevailing party all reasonable costs and expenses, including attorney fees. Venue for any such litigation shall be in Pueblo County, Colorado. -2- 9. Notices Any notice required or permitted to be given or delivered under this Contract shall be in writing and shall be given: (a) If to Seller, by personal delivery, by the United States Postal Service, by registered or certified mail, postage prepaid, addressed to: Thomas E. Jagger City Attorney Suite 127 Thatcher Building Pueblo, Colorado 81003 Telephone No. (719)545 -4412 (b) If to Buyer, by personal delivery, by the United States Postal Service, by registered or certified mail, postage prepaid, addressed to: Bruce R. Reed UtiliCorp United, Inc. P. O. Box 11739 10750 E. 350 Highway Kansas City, MO 64138 Telephone No. (816)737 -7578 or to such other address as any party may from time to time specify in a writing delivered to the other parties in the manner provided in this paragraph. Notices given hereunder shall be deemed given, in the case of personal delivery, on the date delivered, in the case of delivery by mail, on the second business day after delivery to the United States Postal Service. 10. Assignment This Contract shall not be assignable by Buyer. Except as so restricted, this Contract shall inure to the benefit of and be binding upon the parties and their respective heirs, personal representatives, successors and assigns. 11. Modification No subsequent modification of any of the terms of this Contract shall be valid or binding upon the parties or enforceable unless made in writing and signed by the parties. 12. Entire Contract This Contract constitutes the entire contract and agreement between the parties relating to the subject matter hereof, and any prior statements, representations or agreements pertaining thereto, whether oral or written, have been merged and integrated into this Contract. 13. Captions The captions in this Contract are inserted for convenience of reference only and in no way define, describe or limit the scope or intent of this Contract or any of the provisions hereof. 14. Validity If any provision of this Contract shall be held to be invalid or unenforce- able, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Contract. -3- 15. Broker Buyer and Seller represent and warrant to each other that each has dealt with no broker with respect to the Property or in connection with the transaction contemplated hereby. Buyer agrees to indemnify, defend and hold Seller harmless from and against any and all claims, loss, liability, costs and expenses (including reasonable attorneys' fees), resulting from any claims that may be made against Seller by any broker or other person claiming a commission, fee or other compensation by reason of the transaction contemplated hereby if the same shall arise by, through or on account of Buyer. 16. Applicable Law This Contract will be construed and enforced in accordance with the laws of the State of Colorado (without giving effect to choice of law principles). 17. Interpretation Whenever the context so requires, the singular number shall include the plural and the plural the singular, and the use of any gender shall include all genders. 18. Survival of Representation Except for paragraph 15, no representations or warranties of Seller, if any, in this Contract shall survive the Closing of the transaction contemplated hereby. The representations, warranties and agreements of Buyer in paragraphs 6 and 15 of this Contract will survive the Closing of the transaction contemplated hereby. 19. Acceptance of Deed The acceptance of the Special Warranty Deed by Buyer shall be deemed to be a full performance and discharge of every agreement and obligation on the part of Seller to be performed under this Contract. 20. Counterparts This Contract may be executed in one or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute but one agreement. IN WITNESS WHEREOF, the parties have signed this Contract as of the day and year first above written. SELLE : (;i o BUYER Puebl` unici al orporation UtiliCor ' nited, Inc. 'l . B By si o Ci Council � L ` Pe, � �� Name: Att4st- r Title: V P . VV")a-r City Cl k Attest: Name: Title: In EXHIBIT A Parcel B, Lot Line Rearrangement No. 20001 -007 located within a portion of the W' /z of the NW 1/ of Section 26, Township 20 South, Range 64 West of the Sixth Principal Meridianraoridm &-p the recorded plat thereof filed for record May 29, 2001 at recepti i • 3 in the records of the Pueblo County Clerk and Recorder. low� F. J 8 ' Professional Engineers & Land Surveyors EXHIBIT A SPECIAL WARRANTY DEED THIS DEED, made as of this 15th day of June, 2001 by and between Pueblo, a Municipal Corporation (herein "City ") and UtiliCorp United, Inc., a Delaware Corporation (herein "Company "), WITNESSETH: That City for and in consideration of the sum of $10.00 and other good and valuable consideration to City in hand paid by the Company, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell, convey and confirm unto the Company, its successors and assigns forever, all the real property situate, lying and being at Pueblo Memorial Airport, County of Pueblo, State of Colorado, more particularly described on Exhibit "A" attached hereto and incorporated herein (herein "Property"), with all its appurtenances, and warrant the title against all persons claiming under City, subject to general property taxes for the year 2001 and prior and subsequent years, easements, rights of way, conditions, restrictions and reservations of record and easements for existing utilities, sanitary sewer, water, irrigation and natural gas lines on, over or under the Property and to the following covenants, conditions, and restrictions which are and shall be construed to be covenants running with the land described herein and binding upon the Company, its successors and assigns and inuring to the benefit of the City, its successors and assigns. 1. City reserves unto itself and its successors and assigns, for use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the Property, together with the right to cause in the airspace above the surface of the Property such noise as be inherent in the operation of any aircraft now known or hereafter used for navigation of or flight in said airspace, and for use of the airspace above the surface of the Property for landing on, taking off from, or operation on or over the Pueblo Memorial Airport. 2. Company expressly agrees for itself, its successors and assigns to restrict the height of structures, objects of natural growth and other obstructions on the Property, to a height of not more than 4,740 feet above the mean sea level. In the event this covenant is breached, City reserves the right to enter upon the Property at the expense of the Company to remove the offending structure or object and to out the offending growth. 3. Company expressly agrees for itself, its successors and assigns, that it will prevent any use of the Property which would interfere with landing or taking off of aircraft at the Pueblo Memorial Airport, or otherwise constitute an airport hazard. 4. The Property and its use are further subject to the following Restrictive Covenants: (a) The Property may be used only for utilities, industrial or manufacturing facilities and incidental office uses. The Property shall not be used for smelting or plating operations, or for the storage or processing of putrescible materials, or for any purpose or business which constitutes a nuisance, or which exceeds the state air pollution control standards for the facility. Gasoline or diesel fuel used in connection with the activities conducted on the Property but not for sale at retail or wholesale may be stored on the Property in an environmentally sound manner. (b) Outdoor storage shall not be permitted except for storage of equipment, diesel fuel, liquids and other materials generated in or used on the Property, to include but not be limited to such storage in above - ground tanks or vessels, in compliance with applicable environmental laws. (c) The Property shall not be subdivided and no building or structure over sixty (60) feet in height shall be installed or constructed on the Property. (d) No structure or building shall be constructed or installed nearer than sixty -five (65) feet of the right of way line of William White Boulevard, or twenty -five (25) feet of the right of way line of any other abutting streets. There must be installed and maintained a minimum thirty - five (3 5) foot strip of living landscaped ground along and adjacent to William White Boulevard, and twenty -five (25) feet adjacent to other abutting streets. Minimum side yard set -backs shall be -2- twenty -five (25) feet. (e) Company shall keep and maintain the Property and all structures, landscaping and improvements located thereon in a good, clean, safe and orderly condition free of waste, rubbish, debris and trash, and enclose and screen from public view all outside storage and unsightly areas of the Property. (f) Company shall comply with notifications and review requirements of the Federal Aviation Administration prior to the construction, modification or alteration of any building or structure on the Property. (g) Company shall, at its own expense, cause all utilities and roads used or to be used on the Property to be extended from adjacent streets, installed on the Property, and kept and maintained in good order and condition. Roads from the curb of William White Boulevard to the Property line shall be paved. (h) Company shall pay to City a combined service fee for services and facilities now furnished by City at the Pueblo Memorial Airport, namely: public street maintenance, fire protection, and street lighting based upon $295.00 per acre per annum payable monthly for each acre of land conveyed to Company hereunder. City may, from time to time, reduce or eliminate any or all of the services or facilities presently being furnished and may modify, increase, or decrease the annual combined service fee provided (i) such services and fee shall be non - discriminatory among other tenants and owners of land at Pueblo Memorial Airport receiving such services and facilities, and (ii) such fee shall be reasonable in relation to City's actual cost and expense of furnishing the services and facilities then being furnished. City's cost may include the cost of capital improvements amortized over the useful life of the improvements. If waste water is discharged from the Property and transported to and treated at City's waste water treatment facilities, Company and the waste water so transported and treated shall be subject to the same restrictions, limitations, conditions, fees, and charges as other users of City's sanitary sewer system and facilities. Company shall only discharge domestic waste water into the City's sanitary sewer system. (i) Before commencing the construction, installation or alteration of any building, structure, parking facility, outdoor sign, or other permanent improvement, or landscaping on the Property, the Company shall submit to and have approved by the City in writing the site plans and plans and specifications therefor. City's approval will not be unreasonably withheld. In the event the City or its designated representatives shall fail to approve or disapprove such plans and specifications within twenty -five (25) working days after they have been submitted to the City, such approval will not be required and this covenant will be deemed to have been complied with. Company shall use its best efforts to assure that all buildings constructed on the Property will be architecturally and aesthetically compatible with buildings constructed at the Pueblo Memorial Airport industrial park since 1985. All buildings, improvements and activities on the Property shall be constructed and conducted in compliance with all applicable federal, state and local law, regulations, and codes. -3- 0) City reserves the right to waive all or any part of these Restrictive Covenants. 5. At the request of City, Company shall meet and in good faith confer with City concerning the annexation of the Property to the City when the Pueblo Memorial Airport, or any part thereof, including without limitation, the Property becomes eligible for annexation. 6. Invalidation of any one of the foregoing covenants, conditions, restrictions or reservations by judgment or court order or otherwise shall not affect any of the other of said covenants, reservations, restrictions or conditions which shall remain in full force and effect. 7. City shall have the right to enforce the restrictions, covenants and conditions hereof by injunction or other lawful procedure and to recover damages, costs, expenses, including reasonable attorney fees, resulting from any violation thereof or arising out of their enforcement. [S E A L] UtiliCorp United, Inc. Attest: Name: Title: Title: V LU Q-r s ur.Ak [S E A L] Pueblo„ a MpApal Corporation " 0 W Attest: \, — tee . s r �t; By City k P/ ej(ie - n � f t zty Council COUNTY OF ) ss. STATE OF ) The foregoing instrument was acknowledged before me this day of 2001 by as and 0 as of UtiliCorp United Inc., a Delaware Corporation. Witness my hand and official seal. My commission expires: [SEAL] Notary Public COUNTY OF PUEBLO ) ) ss. STATE OF COLORADO ) The foregoing instrument was acknowledged before me this 15 t } flay of June , 2001 by gI Gur-ii 1 P as President of the City Council and Gina Dutcher as City Clerk of Pueblo, Colorado, a Municipal Corporation. Witness my hand and official seal. scion expires: 8 -21 -2003 f- jV . 4' otary Public F:\ CITY \AIRPORT \UTILCORP \SPCLWD. WPD -5- Parcel B, Lot Line Rearrangement No. 20001 -007 located within a portion of the W I /2 of the NW 1 14 of Section 26, Township 20 South, Range 64 West of the Sixth Principal Meridian, ag - : g the recorded plat thereof filed for record May 29, 2001 at recepti 13 in the records of the Pueblo County Clerk and Recorder. VE R NO. 16128 D��� Professional Engineers & Land Surveyors EXHIBIT A Background Paper for Proposed RESOLUTION AGENDA ITEM # 9 DATE: June 11, 2001 DEPARTMENT: City Attorney TITLE A Resolution Approving a Contract To Buy and Sell Real Estate and Attached Special Warranty Deed Between Pueblo, a Municipal Corporation and UtiliCorp United, Inc. Relating to the Sale of Approximately 2.87 Acres of Land at Pueblo Memorial Airport and Authorizing the President of the City Council to Execute the Contract and Special Warranty Deed ISSUE Whether the City should sell 2.87 acres of land to UtiliCorp United, Inc. for $50,000 in order for UtiliCorp United, Inc. to install diesel electrical generating facilities on the land. RECOMMENDATION None BACKGROUND UtiliCorp United, Inc. has a substation located on a portion of the land and intends to construct diesel electrical generating facilities thereon. The land is located at the northwest corner of the Pueblo Memorial Airport Industrial Park. UtiliCorp United has received a special use permit from Pueblo County. City staff has no objection to the location of the facilities on the property. FINANCIAL IMPACT City will receive $50,000 from the sale of the land which is equivalent of its appraised value.