HomeMy WebLinkAbout10807RESOLUTION NO. 10807
A RESOLUTION APPROVING AN AGREEMENT FOR SALE AND PURCHASE OF PROPERTY
BETWEEN THE CITY OF PUEBLO AND THE HILVITZ TRUSTS AND A LEASE BETWEEN THE
CITY OF PUEBLO AND LA TOLTECA FOODS, INC. RELATING TO PROPERTY COMMONLY
KNOWN AS 230 S. MAIN STREET, PUEBLO, COLORADO, AUTHORIZING THE PRESIDENT
OF THE CITY COUNCIL TO EXECUTE SAME AND TRANSFERRING FUNDS THEREFOR
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1
The following documents relating to the property commonly known as 230 S. Main Street,
Pueblo, Colorado, 81003, copies of which are attached hereto, having been approved as to form
by the City Attorney, are hereby approved:
(a) Agreement For Sale and Purchase of Property dated as of August 24, 2006
between the City of Pueblo as Purchaser, and Harvey M. Hilvitz, Arthur L. Hilvitz
and Philip E. Hilvitz as Trustees of two separate Revocable Living Trust Agreements
of December 31, 1973, one for the benefit of Sam Hilvitz and one for the benefit of
Pauline I. Hilvitz, as Sellers ( "Agreement').
(b) Lease dated as of August 24, 2006 between the City of Pueblo as Lessor and La
Tolteca Foods, Inc., as Lessee ( "Lease ").
SECTION 2
The President of the City Council is authorized to execute the Agreement and Lease in the
name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same.
The City Attorney is authorized to execute all other documents and instruments in the name of the
City required and necessary to consummate the transactions therein contemplated.
SECTION 3
Funds in the amount of $420,000.00 are authorized to be transferred from the Police
Building Fund for the purchase of the property described in the Agreement and all costs and
expenses related thereto.
SECTION 4
This Resolution shall become effective upon final approval and passage.
BY Jeff Chostner
Councilperson
APPROVED:
President of Cit Council
ATTESTED BY:
CITY CLERK
INTRODUCED August 28, 2006
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Background Paper for Proposed
RESOLUTION
AGENDA ITEM # J - 7
DATE: August 28, 2006
DEPARTMENT: Law Department
TITLE
A RESOLUTION APPROVING AN AGREEMENT FOR SALE AND PURCHASE OF
PROPERTY BETWEEN THE CITY OF PUEBLO AND THE HILVITZ TRUSTS AND
A LEASE BETWEEN THE CITY OF PUEBLO AND LA TOLTECA FOODS, INC.
RELATING TO PROPERTY COMMONLY KNOWN AS 230 S. MAIN STREET,
PUEBLO, COLORADO, AUTHORIZING THE PRESIDENT OF THE CITY
COUNCIL TO EXECUTE SAME AND TRANSFERRING FUNDS THEREFOR
ISSUE
Should the City purchase property known as 230 S. Main Street, Pueblo, Colorado
for the Police Building Project and lease the property to La Tolteca Foods, Inc. for
a period of 9 months?
RECOMMENDATION
Approve the transaction.
BACKGROUND
The Hilvitz trusts are willing to sell to the City the property known as 230 S. Main
Street, Pueblo, Colorado, and more particularly described in the attached
Agreement, for a purchase price of $415,000 in accordance with the terms and
conditions set forth in the Agreement.
La Tolteca Foods, Inc., the present occupant of the property, is willing to lease the
property for 9 months, rent -free for 6 months, and $3,500 per month for 3 months,
and thereafter peacefully surrender possession of the property to the City. La
Tolteca Foods, Inc. may terminate the Lease at any time upon 10 days notice to the
City. According to City staff, these time - frames are acceptable and in conformity
with the timing for the planned construction of the Police Building.
FINANCIAL IMPACT
See Background.
AGREEMENT FOR SALE AND PURCHASE OF PROPERTY
Agreement made as of August 24, 2006, between Harvey M. Hilvitz, Arthur L. Hilvitz and
Philip E. Hilvitz as Trustees of two separate Revocable Living Trust Agreements of December 31,
1973, one for the benefit of Sam Hilvitz and one for the benefit of Pauline I. Hilvitz (herein referred
to as "Seller ") and the City of Pueblo, a municipal corporation (herein 'Purchaser ").
1. Sale. Seller shall sell and convey, and the Purchaser shall purchase all of the real
property described as Lots 1 through 6 and 30, 31 and 32 in Block 69, in the former Town of South
Pueblo, now a part of the City of Pueblo, County of Pueblo, State of Colorado; Street Address: 230
South Main Street, Pueblo, Colorado, 81003, together with all tenements, hereditaments,
appurtenances, and easements thereunto belonging or appertaining, all buildings, structures, fixtures,
additions and improvements thereon, and all adjacent vacated streets, alleys and public rights of way
(the "Property ").
2. Fixtures The term "fixtures" as used in paragraph 1 includes the plumbing, heating
and air conditioning systems and all other fixtures, attached or appurtenant to the Property or
buildings thereon to the extent presently located on the Property, excluding however, personal
property including, without limitation, trade fixtures and equipment.
3. Purchase Price The purchase price is Four Hundred Fifteen Thousand and No /100
Dollars (U.S. $415,000.00) is to be allocated and paid as follows:
(a) Payment The Purchase Price will be paid in full at the time of closing subject
to compliance by Seller with Seller's warranties and representations contained herein.
(b) Allocation The purchase price will be allocated to the land, building, and
fixtures as Seller shall determine at time of closing.
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.
5. Marketable Title Good and marketable fee simple title to the Property will be
conveyed by Seller to Purchaser by general warranty deed acceptable to Purchaser in proper form
duly executed, acknowledged and ready for recording.
6. Apportionments The ad valorem taxes for the year of sale, 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 Seller. If the closing shall occur before current year taxes are fixed, the
apportionment of taxes shall be based upon the prior year mill levy applied to the latest assessed
valuation. Purchaser shall collect the apportionment of taxes for 2006 from the current Lessee of
the Property.
7. Closing The date of closing shall be as determined by mutual agreement of Seller
and Purchaser but shall be no later than September 10, 2006. The time and place of closing shall be
designated by Purchaser.
Seller's Representations Seller represents and warrants:
(a) Seller has full power and authority to execute, deliver and perform this
Agreement and at closing all acts of Seller 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 Seller, threatened any suit, action
or proceedings against or affecting the Seller or the Property before or by any court, arbitrator,
administrative agency or other governmental authority that materially and adversely affect the
validity, as to the Seller, of any of the transactions contemplated hereby or the ability of the Seller
to perform its obligations hereunder or as contemplated hereby.
(c) Seller owns and at closing will convey to Purchaser good and marketable fee
simple 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.
(d) The Business Lease dated January I'`, 2003 by and between Seller as Landlord
and La Tolteca Foods, Inc., as tenant as modified by Amendment to Business Lease of January 1",
2003 shall terminate as of the date of closing and Seller and La Tolteca Foods, Inc. shall execute and
deliver to Purchaser at closing a written instrument in form and content approved by Purchaser's
attorney executed by Seller and La Tolteca Foods, Inc. terminating the Business Lease and mutually
discharging and releasing each other from all future rights, remedies, liabilities and claims
thereunder.
(e) To the best of Seller's knowledge, there are no hazardous wastes, hazardous
substances, or underground storage tanks in, on or about the Property.
(f) 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 or the sale of the Property contemplated hereby. All such fees, if any, shall be paid
by Seller and Seller shall indemnify and hold harmless Purchaser therefrom.
(g) 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.
(h) Except as otherwise provided herein, neither the Property or the interests of
Seller therein will be limited or restricted by, or subject to, any of the following at the time of
closing:
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(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
public records.
(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.
9. Purchaser's Representations Purchaser represents and warrants:
(a) The Purchaser is a municipal 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,
delivery and performance of this Agreement will have been taken.
(c) The Purchaser has made an independent examination of the property and
accepts same as is, with no warranty as to condition of the Property. Purchaser is aware of the fact
that at one time there were underground storage tanks on the Property.
10. Seller's Duty to Perform Time is of the essence hereof and unless, at the time of
closing, the following conditions are satisfied, the Seller 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 or at the time of closing.
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(c) The Seller has received from the Tenant a Termination of the Business Lease
referred to in paragraph 8 (d) hereof satisfactory to Seller.
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 ofthe Seller 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 Seller shall have performed all obligations and complied with
all covenants required by this Agreement to be performed or complied with by Seller prior to the
closing date.
(b) The Purchaser shall have received from the Seller the
(i) general warranty deed,
(ii) Pueblo County Treasurer's certificate of real estate taxes and special
assessments on the Property, and
(iii) Termination of the Business Lease referred to in paragraph 8(d)
hereof satisfactory to Purchaser.
12. Termination This Agreement may be terminated upon written notice at any time
prior to closing by Purchaser or Seller if there has been a material misrepresentation or breach of
warranty on the part of the other party in such party's representations and warranties set forth in this
Agreement.
13. Possession Possession of the Property shall be delivered to Purchaser by Seller on
closing.
14. Title Insurance Purchaser has obtained Title Insurance Commitment No.
LTPB0002816 issued January 19, 2006 by Lawyers Title Insurance Company ( "Commitment ").
Seller acknowledges receipt of the Commitment. Seller will cause, at its expense, the ALTA
Owner's Policy - 10/17/92 covering the Property in the amount of the purchase price insuring
marketable fee simple title to the Property in Purchaser, without exception or exclusions, free and
clear of all liens, charges, encumbrances, equities of any nature, including, without limitation, those
matters specified in Paragraph 8(h) hereof, to be issued by Lawyers Title Insurance Company and
delivered to Purchaser on or immediately after closing.
15. 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.
me
16. 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 Seller until the delivery of
possession of the Property to Purchaser.
17. 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. Exclusive venue for
any such litigation shall be Pueblo County, Colorado.
18. Survival of Representations The respective representations, warranties, covenants
and agreements of the parties hereto or any instrument delivered or to be delivered hereunder shall
survive the time of closing and shall not be merged in the general warranty deed.
19. Notice Any notice, request, instruction or other document to be given hereunder by
any parry 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 Seller, at 14 Belaire Drive, Pueblo, Colorado, 81001.
20. 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. Seller
and Purchaser shall pay their respective closing costs and all other items required to be paid at
closing. Seller and Purchaser shall sign and complete all customary or reasonably required
documents at or before Closing. Fees for real estate closing fees shall be paid at Closing, one -half
by Seller and one -half by Purchaser.
21. Entire Understanding 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.
22. Governing Laws This Agreement shall be governed by and construed in accordance
with the laws of the State of Colorado.
23. 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.
24. Authority of Undersigned The persons signing this Agreement on behalf of Seller
represent and warrant that they have the requisite power and authority to enter into, execute and
deliver this Agreement on behalf of Seller and that this Agreement is a valid and legally enforceable
agreement in accordance with its terms.
25. Multiple Counterparts This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original.
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;WITNESS THE DUE EXECUTION HEREOF, as of the day and year first above written.
PURCHASER
ATTE - q
City rk
APPROVED AS TO FORM:
�r
CITY OF PUEBLO,
A MUNIC AL CORPORATION
By \
President of the City Council
SELLER
Harvey M. Hilvitz, Arthur L. Hilvitz and
Philip E. Hilvitz as Trustees of the two
separate Revocable Living Trust Agree-
ments of December 31, 1973, one for
the benefit of Sam Hilvitz and one for the
benefit gfAauline I. Hilvitz
Arthur L,,"H�il_vitz
mot/
Philip E. ilvi
G %Cl 4 mp.A,,Wilvnz -" TaiaxMgmemcm for Sala Pamlum Ifiacl mah all maEifinuonp.wpd
In
LEASE
THIS LEASE entered into as of August 24, 2006 by and between Pueblo, a Municipal
Corporation (the "Lessor ") and La Tolteca Foods, Inc., a Colorado corporation (the "Lessee "),
WITNESSETH:
WHEREAS, Lessor anticipates that it will be the owner on Commencement Date as herein
defined of Lots I through 6 and the Northeasterly 29 feet of Lots 30, 31 and 32 in Block 69 in the
former Town of South Pueblo, now part of the City of Pueblo, County of Pueblo, State of Colorado,
Street Address: 230 S. Main Street, Pueblo, Colorado, 81003 (the "Leased Premises "), and
WHEREAS, Lessee is desirous of leasing the Leased Premises and Lessor is willing to lease
the Leased Premises to Lessee upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and mutual promises, covenants and
conditions contained herein, Lessor and Lessee hereby agree as follows:
Article 1. Leased Premises
1.01 Effective on Commencement Date, Lessor leases to Lessee and Lessee leases from
Lessor, subject to the covenants, provisions and conditions herein, the Leased Premises.
1.02 This Lease and Lessee's use of the Leased Premises are subject to the easements,
rights -of -way, covenants, conditions, restrictions, reservations and limitations appearing of record,
and all applicable zoning and land use laws, ordinances, codes and regulations governing and
regulating the Leased Premises and its use.
Article 2. Term
The Term of this Lease shall be nine (9) months, commencing on date of closing of the
purchase of the Leased Premises by Lessor (the "Commencement Date ") and ending on the same day
of the ninth (0) calendar month thereafter, unless sooner terminated as provided herein (the
"Termination Date "). Notwithstanding the foregoing, Lessee may terminate this Lease at any time
upon ten (10) days prior written notice given to Lessor specifying the date of termination.
Article 3. Rent
3.01 Lessee shall pay no rent to Lessor for the first six (6) months of the Term of this
Lease but shall pay monthly rent in the amount of $3,500.00 per month for each of the last three (3)
months of the Term of this Lease.
3.02 Rent shall be paid in advance without notice, demand, off -set or deduction on the
beginning day of each of the last three (3) months of the Term of this Lease at the office of the City's
Director of Finance, 1 City Hall Place, Pueblo, Colorado, 81003.
3.03 It is the intent of the parties hereto that this Lease is a "triple net" lease with Lessor
incurring no obligation, monetary or otherwise, hereunder.
Article 4. Use of Leased Premises
4.01 The Leased Premises shall be used and occupied by Lessee for wholesale food sales
and distribution outlet and for no other purpose.
4.02 Lessee shall use the Leased Premises in a careful, safe and proper manner in
compliance with all laws and regulations applicable to the Leased Premises and Lessee's use thereof.
Lessee shall not cause, maintain or permit any nuisance or waste in, on, or about the Leased
Premises.
Article 5. Condition of Premises
5.01 IT IS UNDERSTOOD AND AGREED THAT LESSOR IS NOT MAKING AND
HAS NOT AT ANY TIME MADE ANY WARRANTY OR REPRESENTATION OF ANY KIND
OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED PREMISES,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OR REPRESENTATION AS TO
HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE
(OTHER THAN THE COVENANT OF QUIET POSSESSION SET FORTH IN ARTICLE 17),
ZONING, PHYSICAL OR ENVIRONMENTAL CONDITIONS, UTILITIES, GOVERNMENTAL
APPROVALS, THE COMPLIANCE OF THE LEASED PREMISES WITH GOVERNMENTAL
AND ENVIRONMENTAL LAWS AND REGULATIONS, THE TRUTH, ACCURACY OR
COMPLETENESS OF ANY DOCUMENT OR OTHER INFORMATION PROVIDED TO
LESSEE BY LESSOR OR ANY OTHER PERSON, OR ANY OTHER MATTER OR THING
REGARDING THE LEASED PREMISES.
5.02 The taking of possession of the Leased Premises by Lessee on Commencement Date
shall be conclusive evidence that the Lessee accepts the Leased Premises in its then present condition
"AS IS, WHERE IS, WITH ALL FAULTS" and that the Leased Premises are in good and
satisfactory condition at the time such possession was taken.
Article 6. Alterations and Improvements
6.01 Lessee shall not make any additions, alterations or improvements in or to the Leased
Premises ( "Alterations ") without Lessor's prior written consent which consent may be arbitrarily
withheld. Lessee shall not permit or allow any lien to be filed or recorded against the Leased
Premises or Lessor's interest therein, and Lessee shall fully cooperate with Lessor in obtaining the
protection afforded Lessor under Section 38 -22 -105, C.R. S. All Alterations made in or to the Leased
Premises by Lessee shall become part of the Leased Premises and be surrendered with the Leased
Premises at the termination of this Lease.
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6.02 All equipment, fixtures and improvements of a detachable or temporary nature
installed or placed upon the Leased Premises by Lessee, including trade fixtures, shall remain the
property of Lessee, subject to Lessee's right, at its option, to remove same not later than ten (10) days
after termination of this Lease. The failure of Lessee to remove its equipment, fixtures and
detachable improvements within ten (10) days after termination of this Lease shall, at the option of
Lessor, be deemed an abandonment of such property and Lessor may dispose of such property as the
Lessor, in its sole discretion, may determine.
Article 7. Repairs and Maintenance
Lessor shall not be obligated to repair, maintain or alter the Leased Premises or any part
thereof. Lessee, at its expense, shall keep and maintain the Leased Premises, including, without
limitation, all buildings and improvements thereon and their structural components, roofs, walls,
fixtures, electrical, heating, mechanical, plumbing and air conditioning systems thereof, in good
condition and repair and in a good, clean and safe condition at all times during the effective term of
this Lease and return the same to Lessor at Termination Date in as good condition and state of repair
as the same were in as of Commencement Date, except for loss occasioned by ordinary wear.
Article 8. Right of Entry
Lessor, or Lessor's officers, employees, agents and representatives, as the case may be, may
enter the Leased Premises during normal business hours upon prior written notice to Lessee, except
notice shall not be required in case of emergency, such as fire.
Article 9. Assi ng ment
Lessee shall not voluntarily or by operation of law assign or sublet all or any part of the
Leased Premises or Lessee's interest therein without the express written consent of Lessor, which
consent may be arbitrarily withheld. Any assignment or attempted assignment or subletting of the
Leased Premises or any interest herein by Lessee without Landlord's express written consent shall
be null and void.
Article 10. Insurance and Indemnification
10.01 Lessee shall indemnify and hold Lessor harmless from and defend Lessor against any
and all claims or liability, including cost of defense and reasonable attorney fees, for any injury or
damage to Lessee or its officers, agents or employees, or to Lessee's property, or to any third person,
or to the property of any third person: (a) occurring in, on or about the Leased Premises or any part
thereof by or from any cause whatsoever except injury or damage caused by the wrongful or
intentional acts of Lessor, its officers or employees; or (b) arising out of or resulting from the Leased
Premises, or any condition thereon, or from Lessee's use and occupancy of the Leased Premises, or
any equipment therein or appurtenances thereto, or any activity conducted thereon.
10.02 Lessee shall secure and maintain in full force and effect, at its expense, during the
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Term of this Lease, commercial liability insurance including personal injury, property damage and
contractual coverage in the minimum amount of $1,000,000 combined single limits naming Lessor
as an additional insured.
10.03 Lessee shall secure and maintain during the Term of this Lease Colorado Workers'
Compensation insurance or other similar coverage in the statutorily mandated amounts.
10.04 A copy of each insurance policy, or certificate thereof, issued by an association or
company authorized to issue such policy or policies under the laws of the State of Colorado
containing a provision prohibiting cancellation or material modification of the insurance except after
no less than (10) days' notice to Lessor, shall be delivered to the Lessor within thirty (30) days after
date of this Lease, and thereafter the Lessee will furnish to Lessor evidence of the continuance of the
insurance coverage required herein within a reasonable time after the same has been issued.
Article 11. Taxes and Assessments
11.01 Lessee shall promptly pay and discharge as they become due and before delinquency
any and all property taxes, assessments, charges, liens, levies or excises, whether general or special
or ordinary or extraordinary, of every name, nature and kind whatsoever, including all governmental
charges of whatsoever name, nature or kind, which may be levied, charged or imposed, or which may
become a lien or charge on or against the Leased Premises or any part thereof, the leasehold interest
of Lessee herein, or the improvements situated on the Leased Premises prior to and during the
effective period of this Lease including, without limitation, general property taxes for the year 2006
payable in 2007. General property taxes for the year 2007 payable in 2008 shall be prorated.
11.02 Lessee shall pay before delinquency any and all property taxes levied or charged
against any of the personal property belonging to it and situated on the Leased Premises or used in
connection with the operation and maintenance of the Building on the Leased Premises.
11.03 Lessee shall have the right to contest or review, by legal proceedings at its own
expense, and if necessary in the name of Lessor, or in such other manner as it may deem suitable,
any tax, assessment, levy or charge herein agreed to be paid by Lessee under this Article 11. Lessee
may defer payment of any such contested item if in connection with the proceeding instituted by
Lessee there shall have been obtained a stay of the collection of the item so contested. In the event
of such contest, Lessee shall give Lessor written notice prior to the commencement of any such
contest which shall be at least ten (10) days prior to delinquency of the item in contest and, on
request of Lessor, Lessee shall give to Lessor a good and sufficient surety bond indemnifying Lessor
and the Leased Premises against any such tax, assessment, levy or other charge and from any cost,
liability or damage arising out of such contest.
11.04 Lessee shall furnish Lessor within thirty (30) days after any amount is payable by
Lessee under this Article 11, official receipts of the appropriate taxing authority or lienholder or
other proof satisfactory to Lessor evidencing such payments as are required under this Article.
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Article 12. Utilities
Lessee shall pay before delinquent all charges for sewer, water, gas, electricity, telephone and
all other utility services furnished to or used in or supplied to the Leased Premises. Lessor shall not
be obligated to furnish or provide any utilities, facilities or services of any kind.
Article 13. Damage to or Destruction of Premises
13.01 If, during the Term of this Lease, the Leased Premises shall be damaged to such an
extent that the Leased Premises become untenantable, this Lease shall terminate.
Article 14. Holding Over
There shall be no holding over under this Lease. Upon the expiration of the 9 -month Term
of this Lease, Lessee shall immediately vacate the Leased Premises and surrender possession thereof
to Lessor.
Article 15. Quiet Possession
Lessee shall, and may peacefully have, hold and enjoy the Leased Premises, subject to the
other terms hereof, provided that Lessee performs all of Lessee's covenants and agreements
contained herein.
Article 16. Default
16.01 In the event of default at any time by Lessee in the performance of any of its
covenants and obligations herein contained, Lessor shall have the right, upon ten (10) days' notice
in writing to Lessee, to terminate this Lease and re -enter and take possession of the Leased Premises.
16.02 In the event the parties hereto become involved in litigation arising out of this Lease,
or the performance or breach thereof, the Court shall award costs, expenses, and reasonable attorney
fees to the prevailing party.
16.03 If Lessee violates any of the terms and provisions of this Lease or defaults in any of
its obligations hereunder, such violation may be restrained or such obligation enforced by injunction
at the instance and request of Lessor without the showing of any special damages or an inadequate
remedy at law.
Article 17. Waiver and Time of Essence
No waiver of any breach or breaches of any provision, covenant or condition of this Lease
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.
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Article 18. Notices
All notices, demands or communications of any kind which may be required or desired to be
served, given or made by Lessee upon or to Lessor, under the terms of or in connection with this
Lease, shall be sufficiently served, given or made (as an alternative to personal service upon Lessor)
if such notice, demand or communication is sent by certified United States mail, addressed to:
City Manager
City of Pueblo
1 City Hall Place
Pueblo, Colorado 81003
and
Thomas E. Jagger, Esq.
503 N. Main Street, Suite 127
Pueblo, Colorado 81003
(or to such other person or address as may hereafter from time to time be designated for this purpose
by Lessor to Lessee in writing). All notices, demands or communications of any kind which may
be required or desired to be served, given or made by Lessor upon or to Lessee, under the terms of
or in connection with this Lease, shall be sufficiently served, given or made (as an alternative to
personal service upon Lessee) if such notice, demand or communication is sent by certified United
States Mail, addressed to:
La Tolteca Foods, Inc.
7 ? -234 S. Main Street
/,., Pueblo, Colorado 81003
l;
(or to such other person or address as may hereafter from time to time be designated for this purpose
by Lessee to Lessor in writing).
Article 19. Environmental Provisions
19.01 For the purpose of this Lease, "Hazardous Materials" means any hazardous or toxic
substance, material or waste which is or becomes regulated by any local government authority, the
State of Colorado or the United States government and shall include, but not be limited to (1)
substances defined as "hazardous waste," "restricted hazardous waste," "hazardous substance" or
"hazardous material" under any applicable federal, state or local law or regulation (`Environmental
Regulations "), (2) asbestos - containing materials, (3) PCBs, (4) petroleum or petroleum based
products, and (5) lead.
19.02 Lessee will comply with Environmental Regulations that are applicable to the Lessee
I M,
and its use of the Leased Premises. No activity shall be undertaken by the Lessee, its employees,
agents, licensees, invitees, contractors or subcontractors, on all or any portion of the Leased Premises
which would cause or permit: (i) the presence, use, generation, release, discharge, storage or
disposal of any Hazardous Material in, on, under, about, or from the Leased Premises or any part
thereof in violation of any Environmental Regulations; (ii) any portion of the Leased Premises to
become a hazardous waste treatment, storage or disposal facility without receiving proper
governmental authorization, and in compliance with all Environmental Regulations; or (iii) the
discharge of pollutants or effluents into any water source or system, or the discharge into the air of
any emissions without receiving proper governmental authorization, and in compliance with all
Environmental Regulations, including, without limitation, the Federal Water Pollution Control Act,
U.S.C. Section 1251 et sea. and the Clean Air Act, 42 U.S.C. Section 7401 et sea.
19.03 Lessee agrees to defend, indemnify and forever hold harmless the Leased Premises
and Lessor, and its officers, employees, agents, successors, and assigns, as their interest may appear,
from all claims, losses, damages, penalties, expenses and costs, including, but not limited to,
attorneys' fees, remedial, and cleanup costs, incurred by reason of the use, storage, generation,
release, discharge, maintenance, disposal, or removal of Hazardous Materials in, on, under, about,
or from the Leased Premises, or any part thereof, by Lessee, its employees, agents, licensees,
invitees, contractors and subcontractors. The provisions of Article 19 shall expressly survive the
expiration of the Term or other termination of this Lease.
Article 20. Miscellaneous Provisions
20.01 Colorado Law This Lease shall be governed by the laws of the State of Colorado and
shall be construed in accordance therewith without reference to such State's choice of law and/or
conflict of law principles.
20.02 Writing for Waiver or Modification No provision of this Lease 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.
20.03 Binding Effect This Lease sets forth the entire and complete understanding and
agreement of the parties hereto with respect to the subject matter hereof. Lessee acknowledges and
agrees that it has not relied upon any statements, representations, agreements or warranties of Lessor
except such as are expressed herein. This Lease shall be binding on the parties, their successors and
approved assigns.
20.04 Construction Throughout this Lease, 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.
20.05 Text to Control The headings of sections are included solely for convenience of
reference. If any conflict between any heading and the text of this Lease exists, the text shall control.
-7-
20.06 Severability If any provisions of this Lease 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 Lease shall be construed
and enforced as if such invalid provisions had never been inserted in the Lease.
20.07 Venue and Jury Trial Lessor and Lessee agree that the venue for all actions or causes
of action relating to this Lease or the Leased Premises shall be Pueblo County, Colorado. All such
actions shall be filed in the District Court, County of Pueblo, State of Colorado and Lessor and
Lessee submit to the jurisdiction of that Court. To the extent allowed by law, each party waives its
right to a jury trial.
20.08 Lessee's Warranties The persons signing this Lease on behalf of Lessee represent
and warrant that such parties and Lessee have the requisite power and authority to enter into, execute
and deliver this Lease and that this Lease is a valid, legally binding obligation of Lessee enforceable
against Lessee in accordance with its terms.
20.09 Time of Essence Time shall be and is of the essence as to the performance of all
terms, conditions and obligations under this Lease.
20.10 Third Parties The provisions of this Lease are and will be for the benefit of Lessor
and Lessee only and not for the benefit of any third party, and accordingly, no third party shall have
any right or remedy hereunder or the right to enforce any provision of this Lease.
IN WITNESS WHEREOF, Lessor and Lessee, by their duly authorized representatives, have
executed this Lease on the day and year first above written.
PUEBLO, A MUNICIPAL CORPORATION
Rv
President of the City Council
Attest: �xc Jl
City rk
In
LA TOLTECA FOODS, INC, a
U
C h ris C M IIIIII IIIIII VIII lil (IIIIII III VIII IIII IIII 0 1 Page: I of I
693443 D 41.50
WHEN RECORDED RETURN TO:
City of Pueb o, a Mun ip
t G � W
Pueblo, CO 81003
WARRANTY DEED
THIS DEED, dated September 13, 2006, between
Harvey M. Hilvitz, Arthur L. Hilvitz and Philip E. Hilvitz as Trustees of the
Revocable Living Trust Agreement of December 31, 1973,
of the County of Pueblo and State of Colorado, grantor(s), and
UNTY
SDF $41.50
City of Pueblo, a Municipal Corporation,
duly organized and existing under and by virtue of the laws of the State of Colorado,
whose legal address is , Pueblo, CO 81003, of the County of Pueblo and State of Colorado, grantee(s):
WITNESS, that the grantor(s), for and in consideration of the sum of Four Hundred Fifteen Thousand and
00 /100 Dollars ($415,000.00), the receipt and sufficiency of which is hereby acknowledged, has granted,
bargained, sold and conveyed, and by these presents does grant, bargain, sell, convey and confirm, unto the grantee,
its successors and assigns forever, all the real property, together with improvements, if any, situate, lying and being
in the County of Pueblo and State of Colorado, described as follows:
Lots 1 through 6 and 30, 31 and 32, in Block 69, in the former Town of South Pueblo, now a part of the City of Pueblo,
County of Pueblo, State of Colorado, together with all vacated streets and alleys adjacent thereto
also known by street and number as: 230 S. Main Street, Pueblo, CO 81003; 229 S. Mechanic Street, Pueblo,
CO 81003;
TOGETHER with all and singular the hereditaments and appurtenances thereunto belonging, or in anywise
appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the
estate, right, title, interest, claim and demand whatsoever of the grantor(s), either in law or equity, of, in and to the
above bargained premises, with the hereditaments and appurtenances;
TO HAVE AND TO HOLD the said premises above bargained and described, with the appurtenances, unto the
grantee, its successors and assigns forever. The grantor(s), for himself, his heirs, and personal representatives, does
covenant, grant, bargain and agree to and with the grantee, its successors and assigns, that of the time of the ensealing
and delivery of these presents, he is well seized of the premises above conveyed, has good, sure, perfect, absolute and
indefeasible estate of inheritance, in law, in fee simple, and has good right, full power and lawful authority to grant,
bargain, sell and convey the same in manner and form as aforesaid, and that the same are free and clear from all former
and other grants, bargains, sales, liens, taxes, assessments, encumbrances and restrictions of whatever kind or nature
soever, except general taxes for the year 2006 and subsequent years, and except easements, covenants,
conditions, restrictions, reservations, and rights of way of record, if any.
The grantor(s) shall and will WARRANT AND FOREVER DEFEND the above - bargained premises in the quiet and
peaceable possession of the grantee, its successors and assigns, against all and every person or persons lawfully claiming
the whole or any part thereof.
The singular number shall include the plural, the plural the singular, and the use of any gender shall be applicable to
all genders.
IN WITNESS WHEREOF, the grantor has executed this deed on the date set forth above.
Harvey M. Hilvitz, Arthur L. Hilvitz and Philip E. Hilvitz as Trustees of the Revocable Living Trust Agreement of
December 31, 1973
Am
Arthur L. Hilvitz, Trustee
E.
STATE OF COW
COUNTY O!#,i
=a:
The foreg it
and Philip F�`HA,
Witness my
My Commission
Tru
d • )SS
edged before me on September 13, 2006 by Harvey M. Hilvitz, Arthur L. Hilvitz
Revocable Living Trust Agreement of December 31, 1973.
i
, Not fry Public
File No.: LTPB0002816
WD Indv to Corp -DOC 9/12/06 4:32 PM