HomeMy WebLinkAbout09350RESOLUTION NO. 9350
A RESOLUTION APPROVING AN AGREEMENT
FOR THE PURCHASE OF THE REAL PROPERTY
COMMONLY KNOWN AS 215 VICTORIA AVENUE,
PUEBLO, COLORADO 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 for Sale and Purchase of Property dated July 18, 2001
relating to the purchase by the City of the property commonly known as 215
Victoria Avenue, Pueblo, Colorado from The Timme Family Trust for a purchase
price of $615,000.00, the original of which is on file in the office of the City Clerk,
is hereby approved.
SECTION 2.
The President of the City Council is hereby authorized and directed to
execute the Agreement for and on behalf of the City and the City Clerk is directed
to attest same and affix the seal of the City thereto.
SECTION 3.
Funds for this purchase in the amount of $615,000.00 shall be paid from
Account Number CP 0023 401 - 0000 - 600.70 -10.
INTRODUCED: July 23. 2001
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APPROVED:
ATTESTED BY: \ c t
CLERK
CITY COUNCIL
L)
Background Paper for Proposed
RESOLUTION
DATE: JULY 23, 2001 AGENDA ITEM #14A
DEPARTMENT: CITY MANAGER'S OFFICE
TITLE
A RESOLUTION APPROVING AN AGREEMENT FOR THE PURCHASE OF THE
REAL PROPERTY COMMONLY KNOWN AS 215 VICTORIA AVENUE, PUEBLO,
COLORADO AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO
EXECUTE SAME
ISSUE
Shall the City purchase the property located at 215 Victoria Avenue for the continuance
of the El Pueblo Museum project?
RECOMMENDATION
Approval of the Resolution
BACKGROUND
The acquisition of the Timme property is the final acquisition required for the
construction for the El Pueblo Museum project. This is a seven million dollar project,
which includes construction of the new El Pueblo Museum, the Frontier Pathways- Scenic
Byway Gateway facility, the El Pueblo Plaza, the El Pueblo Archaeology Pavilion and
the Headwaters Plaza. There are all project originally identified within the Pueblo
Downtown Framework Plan.
FINANCIAL IMPACT
Funds for this purchase in the amount of $615,000.00 shall be paid from Account
Number CP 0023 401 - 0000 - 600.70 -10
Rev. 7 -18 -01
AGREEMENT FOR SALE AND PURCHASE OF PROPERTY
Agreement made July 18 , 2001, between The Timme Family Trust (herein referred to as
"Sellers ") and the City of Pueblo, a municipal corporation (herein "Purchaser ").
1. Sale. Sellers shall sell and convey, and the Purchaser shall purchase all of the real
property described in Exhibit "A" attached hereto and incorporated herein located in Pueblo County,
Colorado, together with all tenements, hereditaments, appurtenances, and easements thereunto
belonging or appertaining, all buildings, structures, billboards, fixtures, additions and improvements
thereon, and all adjacent vacated streets, alleys and public rights of way, if any (the 'Property ").
2. Fixtures The term "fixtures" as used in paragraph 1 includes the plumbing, heating
and air conditioning systems and all other fixtures, equipment and personal property attached or
appurtenant to or used in connection with the Property or buildings thereon to the extent presently
located on the Property and to the extent owned by Sellers except the personal property described
in Exhibit "B" attached hereto.
3. Purchase Price The purchase price, not to exceed is Six Hundred Fifteen Thousand
and No /100 Dollars (U.S. $ 615,000 ) is to be allocated and paid as follows:
(a) Pa ment. Five Hundred Ten Thousand and No /100 Dollars (U.S.
$ 510,000 00) will be paid at the time of closing subject to compliance by Sellers with Sellers'
warranties and representations contained herein. The balance of the purchase price, reduced by the
amount of any liquidated damages assessed pursuant to paragraph 13 hereof, and further reduced
by the escrowed amount as provided in paragraph 18 hereof, shall be paid to Sellers upon actual
delivery to Purchaser of possession.
(b) Allocation The purchase price will be allocated to the land, building,
billboards and fixtures as Sellers shall determine at time of closing; provided, such allocation must
be approved by Purchaser, which approval will not be unreasonably withheld.
(c) Division of Purchase Price Amount Sellers Payment of the purchase price
shall be to all Sellers jointly, and shall be divided among them as Sellers may agree.
4. Liens and Encumbrances The Property is sold and will be conveyed free of all liens,
charges, encumbrances, equities of any nature, rights of parties to or in possession, taxes and
assessments, except current year taxes and NO OTHER EXCEPTIONS
5. Marketable Title Good and marketable title to the Property will be conveyed by
Sellers to Purchaser by warranty deed in proper statutory form duly executed, acknowledged and
ready for recording and by bill of sale.
6. Apportionments The ad valorem taxes for the year of sale for both real and personal
property, water and sewer charges, and other utilities will be apportioned as of the date of closing.
All special assessments, if any, shall be paid in full by Sellers. If the closing shall occur before
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current year taxes are fixed, the apportionment of taxes shall be based upon the prior year mill levy
applied to the latest assessed valuation.
7. Closin . The date of closing shall be as determined by mutual agreement of Sellers
and Purchaser but shall be no later than September 15, 2001 . The time and place of closing shall
be designated by Purchaser.
8. Sellers' Representations Sellers represents and warrants:
(a) Sellers have full power and authority to execute, deliver and perform this
Agreement and at closing all acts of Sellers necessary and required for such execution, delivery and
performance of this Agreement will have been taken.
(b) There is not pending or, to the knowledge of Sellers, threatened any suit,
action or proceedings against or affecting the Sellers or the Property before or by any court,
atbitrator, administrative agency or other governmental authority that materially and adversely affect
the validity, as to the Sellers, of any of the transactions contemplated hereby or the ability of the
Sellers to perform their obligations hereunder or as contemplated hereby.
(c) Sellers own and at closing will convey to Purchaser good and marketable title
to the Property free of all liens, charges, encumbrances, equities of any nature, rights of parties in
possession, taxes and assessments, except current year taxes and those matters otherwise specifically
excepted in paragraph 4 hereof.
(d) No notice or requests have been received by the Sellers from any insurance
company issuing any policy of insurance covering the Property requesting the performance of any
work with respect to the Property which has not been fully complied with. Any such notices or
requests received prior to closing shall be fully complied with by the Sellers at their expense prior
to closing.
(e) To the knowledge of Sellers, the Property and its present use do not violate
any provision of any applicable building or fire code, federal or state environment or pollution
control law, or any other governmental statutes, rules, ordinances, orders, or regulations. Sellers do
not warrant that, were the improvements to be constructed or reconstructed at the present time, they
would comply with current codes and regulations.
(f) The land included in the description of the Property is contiguous, and all
public utilities required for the use and operation of the Property either enter the Property through
adjoining public streets or if they pass through private lands they do so in accordance with valid
easements.
(g) The buildings and other structures upon the Property are entirely within the
boundary lines of the Property, there are no encroachments thereon.
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(h) Purchaser shall not become liable for or obligated to pay any broker's,
finder's, consultant's fees or similar fees in connection with the negotiation, execution or
consummation of this Agreement. All such fees shall be paid by Sellers.
(i) At the time of closing, the Property shall not have been materially or
adversely affected in any way as a result of fire, explosion, earthquake, accident, casualty,
requisition or other taking of property by governmental authority, flood, windstorm, riots or acts of
God or the public enemy.
0) Except as otherwise provided herein, the Property, buildings, fixtures,
equipment and improvements will be conveyed at closing in their condition and state of repair as
of the date of this Agreement.
(k) Except as otherwise provided herein, neither the Property or the interests of
Sellers therein is limited or restricted by, or subject to, any of the following:
public records. (i) Rights or claims of parties in possession whether or not shown by the
public records. (ii) Easements, or claims of easements, whether or not shown by the
(iii) Discrepancies, conflicts in boundary lines, shortage in area,
encroachments, and any facts which a correct survey and inspection of the premises would
disclose whether or not shown by the public records.
(iv) Any lien, or right to a lien, for services, labor, or material heretofore
or hereafter furnished, imposed by law whether or not shown by the public records.
(v) Taxes due and payable, any tax, special assessments, charge or lien
imposed for water or sewer service, except current year general ad valorem taxes.
(1) The list of personal property to be furnished under paragraph 14 is true,
correct and accurate.
9. Purchaser's Representations Purchaser represents and warrants:
(a) The Purchaser is amunicipal corporation duly organized, existing and in good
standing under the laws of the State of Colorado.
(b) The Purchaser has full power and authority to execute, deliver and perform
this Agreement and at the time of closing all acts of the Purchaser necessary for such execution,
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delivery and performance of this Agreement will have been taken.
10. Sellers' Duty to Perform Time is of the essence hereof and unless, at the time of
closing, the following conditions are satisfied, the Sellers shall not be obligated to make this sale,
transfer and conveyance provided herein to be made by them or otherwise to effectuate their part
of the purchase and sale herein provided:
(a) The representations and warranties set forth in paragraph 9 herein are, on the
date hereof and as of the time of closing, correct, subject to any change permitted herein or any
action approved by the Purchaser.
(b) The Purchaser has complied with its agreements to be performed herein by
it prior to the time of closing.
11. Purchaser's Duty to Perform Time is of the essence hereof and unless, at the time
of closing, the following conditions are satisfied, the Purchaser shall not be obligated to pay the
consideration as provided for herein or otherwise to effectuate its part of the purchase and sale
herein provided:
(a) The representations and warranties of the Sellers contained herein shall be
true in all respects as of the time of closing as though such representations and warranties were then
made in exactly the same language and the Sellers shall have performed all obligations and complied
with all covenants required by this Agreement to be performed or complied with by Sellers prior to
the closing date.
(b) The Sellers have complied with their agreements herein to be performed by
them prior to the time of closing.
(c) The Purchaser shall have received from the Sellers the
(i) warranty deed and bill of sale,
(ii) title insurance commitment,
(iii) Pueblo County Treasurer's certificate of personal and real estate taxes
and special assessments on the Property, and
(iv) complete list of personal property.
(d) The results of environmental inspection do not indicate a level of
contamination of the Property which is deemed unacceptable to Purchaser.
12. Termination This Agreement may be terminated upon written notice at any time
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Rev. 7 -18 -01
prior to closing by Purchaser or the Sellers if there has been a material misrepresentation or breach
of warranty on the part of the other party in representations and warranties set forth in this
Agreement.
13. Possession, Liquidated Damages Possession of the Property shall be delivered by
Sellers on or before November 15, 2001 at 12 a.m. . The parties acknowledge that if Purchaser
does not obtain possession by this date and time, Purchaser may incur a substantial loss.
Consequently, if Sellers shall fail or refuse to deliver possession of the Property to Purchaser on or
before said date and time, Sellers shall be subject to eviction and shall be liable for liquidated
damages in the amount of $100,000.00, which Purchaser shall be entitled to set off against any
remaining balance of the purchase price, plus an additional $3,333.33 for each and every calendar
day thereafter until possession is delivered or obtained.
14. Personal Property Within 20 days after execution of this Agreement by Sellers,
Sellers will deliver to Purchaser a complete list of all chattels, fixtures and equipment located on the
Property or used in connection with the Property or buildings thereon and owned by Sellers, except
the personal property described in Exhibit B, and a description of same shall be included in the bill
of sale to be delivered at closing.
15. Title Insurance Commitment At least 15 days prior to closing, Sellers will deliver
to Purchaser a commitment for a policy of title insurance ( "Commitment "), agreeing to issue to
Purchaser, upon the recording of the warranty deed to Purchaser covering the Property, an ALTA
owner's policy of title insurance for the Property in the amount of the purchase price, in form and
content acceptable to counsel for the Purchaser, insuring marketable title to the Property in
Purchaser, without exceptions or exclusions, free and clear of all liens, charges, encumbrances,
equities of any nature, rights of parties in possession, assessments and taxes, except current year and
those matters otherwise specifically provided in paragraph 4 hereof ( "Title Policy "). Sellers will
cause the Title Policy to issue and be delivered, at Purchaser's expense, to Purchaser within 20 days
after closing.
16. Special Warranty Sellers guarantee and warrant to Purchaser that:
(a) All of the creditors of Sellers, as of closing date, shall be paid by Sellers when
their bills are due.
(b) Sellers, at Sellers' expense, shall indemnify and hold Purchaser harmless from
any claim of a creditor of Sellers, which claim arises under the Colorado Uniform Commercial
Code, or Bulk Sales Act or any similar Acts.
17. Environmental Inspection
(a) During the period between the effective date ofthis Agreement andPurchaser
obtaining possession, Sellers grant to Purchaser, and to Purchaser's employees, agents, contractors
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and consultants, the right to enter upon and inspect the Property for the purpose of evaluating and
inspecting the Property to determine the existence, presence, and extent of any underground storage
tanks, petroleum products, volatile organic compounds, lead, lead based paint, asbestos, and of
hazardous substances in, on, or upon the Property, whether located above or below the ground
surface or in or upon any building or structure located thereon, in connection with Purchaser's
intended acquisition of the Property. In performing its evaluation and inspection of the Property,
Purchaser shall have the right, at Purchaser's sole cost and expense, to conduct such studies,
inspections, evaluations, audits, environmental assessments, and surveys (hereinafter collectively
referred to as "environmental assessments" as Purchaser may deem appropriate. As part of such
environmental assessments, Purchaser is authorized to perform or conduct any soil, groundwater,
lead or asbestos tests it deems necessary, and to take samples of soil, groundwater, paint and other
materials located in or upon the Property. Purchaser is authorized to perform subsurface excavation,
bore testing, and drilling upon the Property and to establish one or more groundwater monitoring
wells. This right to inspect is not intended, nor should it be construed, to impose upon Purchaser
any liability or responsibility whatsoever for any containment, mitigation, remediation, removal, or
cleanup with respect to any preexisting condition discovered or revealed by Purchaser's activities
pursuant to this instrument; provided, however, that Purchaser shall at its own expense properly
dispose of samples of soil, water or other materials removed by Purchaser from the Property, and,
in the event Purchaser does not purchase the Property, Purchaser shall reasonably correct or repair
any physical damage to the Property directly caused by its activities, including the plugging of bore
holes and closure of monitoring wells, if any.
(b) Based upon the foregoing inspection, Purchaser may, with the aid of its
employees, agents and consultants, prepare an estimate of the reasonable costs of remediating the
presence upon the property of any underground storage tanks, petroleum products, volatile organic
compounds, lead or other hazardous substances, if any.
18. Disputed Interest; Escrow
(a) The Lamar Corporation had leased a portion of the Property for use in
billboard advertising under a lease dated November 10, 1992. Sellers represent that they have given
notice to the Lamar Corporation, or its assignees (collectively "Lamar "), to terminate the lease
effective October 31, 2001, and represent that Lamar shall have no property interest in the Property
at the time Purchaser obtains possession of the Property under this Agreement. Notwithstanding the
foregoing, Purchaser acknowledges that Lamar may be a displaced business within the meaning of
the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended
(the "Act "), and may be entitled to relocation expenses under the Act from the Purchaser. Other
than such relocation expenses, however, Purchaser and Sellers both believe that Lamar is not entitled
to any compensation for a property interest in the Property as of the date of possession by Purchaser.
The purchase price agreed to be paid by Purchaser under this Agreement is based upon the
assumption that fee simple ownership of the Property and all buildings and improvements thereto
shall be conveyed and transferred to Purchaser. Notwithstanding the foregoing, Sellers and
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Purchaser have agreed to share the risk that Lamar may have a property interest claim in the
Property in the manner provided in this paragraph 18.
(b) Five Thousand Dollars (U.S. $5,000.00) of the purchase price (the "Escrow
Fund ") shall be deposited with an Escrow agent acceptable to both Sellers and Purchaser, or upon
approval of Sellers, held by the Purchaser in a segregated account.
The Escrow Fund shall be used solely to reimburse Purchaser for fifty percent (50 %)
of the liabilities, costs and expenses incurred City which are attributable to any of the following
items: (i) costs of any action, including attorney fees and expert witness fees, brought or commenced
by Lamar or its assignees claiming its property interest in the Property was taken or appropriated
through the power of eminent domain, or in inverse condemnation, by Purchaser; (ii) the amount
of any judgment or award in favor of Lamar or its assignees and against Purchaser, for the taking
of, or injury to, any property interest of Lamar or its assignees in the Property; and (iii) the amount
of negotiated settlement between Purchaser and Lamar or its assignees for payment to Lamar or its
assignees of compensation for its property interest in Property, provided that Seller has been
permitted to participate in such negotiations.
The Escrow Agent shall issue reimbursement to Purchaser from the Escrow Fund
upon written instructions from Purchaser, which instructions shall be subj ect to approval by Sellers,
which approval shall not be unreasonably withheld, provided that if Sellers do not approve or object
to such instructions in a writing delivered to Purchaser and Escrow Agent within ten (10) days after
issuance thereof, Sellers approval shall conclusively be deemed to have been given. In the event
the Escrow Agent has not received written instructions which fully deplete all funds remaining in
the Escrow Fund, together with interest, if any, Escrow Agent shall, on or after September 15, 2003,
remit all funds remaining in the Escrow Fund, together with interest, if any, to Seller, and the escrow
shall terminate; provided however, that if there is then remaining or pending any unresolved action
between Purchaser and Lamar or its assignees, or unresolved dispute between Purchaser and Sellers,
relating to the claims of Lamar or its assignees or to eligibility for reimbursement to Purchaser from
the Escrow Fund, the Escrow Agent shall continue to hold the Escrow Fund until such dispute is
resolved.
19. Sineular Includes Plural If two or more persons constitute the Seller, the word
"Seller" shall be construed as if it read "Sellers" whenever the sense of the Agreement so requires.
20. Risk of Loss The risk of loss or damage to the Property or to tenants or occupants
thereof or their property by fire or other casualty is assumed by the Sellers until the delivery of
possession of the Property to Purchaser.
21. Enforcement Time is of the essence hereof and this Agreement may be specifically
enforced. In the event of any litigation arising out of this Agreement, the Court may award to the
prevailing party all reasonable costs and expenses, including attorney's fees.
22. Survival of Representations The respective representations, warranties, covenants
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and agreements of the parties hereto or any instrument delivered or to be delivered hereunder shall
survive the time of closing.
23. Notice Any notice, request, instruction or other document to be given hereunder by
any party hereto to the other shall be in writing and shall be delivered personally or sent by certified
mail, postage prepaid; if to Purchaser, addressed to it at 1 City Hall Place, Pueblo, Colorado, 81003,
Attention: City Manager; and if to Sellers, at 215 Victoria Avenue Pueblo Colorado 81003 .
24. Expenses Each party hereto shall separately bear its expenses incurred in connection
with this Agreement and in connection with all things required to be done by each hereunder, except
that costs of recording documents, obtaining title insurance, and other incidental costs associated
with the purchase of the property shall be paid by Purchaser.
25. Entire Understandings This Agreement is entered into after full investigation,
neither party relying upon any statement or representation of the other not contained herein. This
Agreement contains the entire understanding of the parties hereto relating to the subject matter
herein contained and this Agreement cannot be changed or terminated orally.
26. Governing Laws This Agreement shall be governed by and construed in accordance
with the laws of the State of Colorado.
27. Recording For the convenience of the parties hereto and to facilitate the filing and
recording of this Agreement, it may be executed in one or more counterparts, each of which shall
be deemed to be an original, but all of which shall constitute one and the same Agreement.
28. No Benefit to Third Parties Nothing herein expressed or implied is intended or shall
be construed to confer upon or give any person, firm or corporation, other than the parties hereto,
any rights or remedies under or by reason hereof.
29. No Waiver of Governmental Powers Nothing in this Agreement is intended, nor
shall it be construed, to limit or restrict the exercise of any police powers held by Purchaser as a
Colorado home rule city; and in the event that Purchaser or Sellers for any reason fail to conclude
the sale and purchase of the Property pursuant to this Agreement, nothing in this Agreement is
intended, nor shall it be construed, to limit or restrict the exercise of Purchaser's power of eminent
domain with respect to the Property.
30. Authority of Undersigned The persons signing this Agreement on behalf of Sellers
represent and warrant that they have the requisite power and authority to enter into, execute and
deliver this Agreement on behalf of their respective party and that thereafter upon timely execution
by the Purchaser, this Agreement shall be a valid and legally enforceable agreement in accordance
with its terms.
31. Execution by Purchaser• Multiple Counterparts This Agreement may be executed
in two or more counterparts, each of which shall be deemed an original. A faxed signature upon any
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counterpart shall be sufficient to bind the party for whom made. Upon execution hereof by Sellers
on or before July 19, 2001, and by Purchaser on or before July 25, 2001, this Agreement shall
become a contract binding upon and inuring to the benefit of Sellers and Purchaser, their heirs,
personal representatives, successors and assigns.
WITNESS THE DUE EXECUTION HEREOF, as of the day and year first above written.
CITY OF PUEBLO
A MUNI IP L CO RATION
ATTEST: �� B
City Cl e City Council
APPROVED AS TO FORM:
City Attorne
SELLERS
THE TI M-ME FAMILY TRUST
By
Walter E. Timme, Trustee
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EXHIBIT "A"
Legal Description
The East'' /2 of Lot 8, all of Lots 9 and 10, Block 43, in that part of the present
City of Pueblo which was surveyed and platted by H. M. Fosdick, Civil
Engineer, for the Probate Judge of said Pueblo, Colorado, in March 1869, as
shown by the recorded plat thereof.
AND
Lots 8 through 12, both inclusive, Block 58, Hobson's Subdivision to the City
of Pueblo, Pueblo County, Colorado.
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