HomeMy WebLinkAbout11700RESOLUTION NO. 11700
A RESOLUTION APPROVING A CONTRACT TO BUY AND
SELL REAL ESTATE BETWEEN CITY OF PUEBLO, A
MUNICIPAL CORPORATION, AND PUEBLO SUBURBAN
DEVELOPMENT, LLC RELATING TO THE ACQUISITION
OF REAL PROPERTY FOR DEVELOPMENT OF AN
INDUSTRIAL PARK TO BE MADE AVAILABLE FOR JOB
CREATING CAPITAL IMPROVEMENT PROJECTS,
AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL
TO EXECUTE SAME, AND TRANSFERRING
$4,000,000.00 FROM THE 1992 -2011 SALES AND USE
TAX CAPITAL IMPROVEMENT PROJECTS FUND FOR
SUCH PURPOSE
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SFrTinN 1
The City Council finds and determines that the expenditure of $4,000,000.00 for
the acquisition of 500 acres of real property for development of an industrial park to be
made available for job creating capital improvement projects meets and complies with
the intent and purpose of the criteria and standards established by Ordinance No. 6381
and will create employment opportunities justifying the expenditure of public funds.
SECTION 2
The Contract To Buy And Sell Real Estate dated as of September 14, 2009
between the City of Pueblo and Pueblo Suburban Development, LLC ( "Contract'), a
copy of which is attached hereto, having been approved as to form by the City Attorney,
is hereby approved. The President of the City Council is authorized to execute and
deliver in the name of the City the Contract, together with the Deed of Trust and
Promissory Note described therein.
SECTION 3
Funds in an amount of $4,000,000.00 are hereby transferred, expended and
pledged out of the 199282011 Sales and Use Tax Capital Improvement Projects Fund
for the sole purpose of paying the $4,000,000.00 purchase price for 500 acres of real
property. The funds hereby pledged and authorized to be transferred and expended
shall be released and paid by the Director of Finance to Pueblo Suburban Development,
LLC in accordance with the terms and covenants of the Contract and Promissory Note.
SECTION 4
The officers of the City are directed and authorized to perform any and all acts
consistent with the intent of this Resolution and attached Contract to effectuate the
transaction described therein. The City Attorney is authorized to execute on behalf of
the City all closing documents necessary and required to purchase the real property.
SECTION 5
This Resolution shall become effective upon final approval and passage.
A77TSTDD SY:
CITY CLERK
INTRODUCED: September 14, 2009
BY: Randy Thurston
} C � OUNCILPERSON
APPR 0' } �-
PRESIDENTaf Cfty Council
[ D E
ED
Background Paper for Proposed
ORDINANCE
AGENDA ITEM # R -1
DATE: September 14, 2009
DEPARTMENT: Law Department
TITLE
A RESOLUTION APPROVING A CONTRACT TO BUY AND SELL REAL ESTATE
BETWEEN CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND PUEBLO
SUBURBAN DEVELOPMENT, LLC RELATING TO THE ACQUISITION OF REAL
PROPERTY FOR DEVELOPMENT OF AN INDUSTRIAL PARK TO BE MADE
AVAILABLE FOR JOB CREATING CAPITAL IMPROVEMENT PROJECTS,
AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME, AND
TRANSFERRING $4,000,000.00 FROM THE 1992 -2011 SALES AND USE TAX
CAPITAL IMPROVEMENT PROJECTS FUND FOR SUCH PURPOSE
ISSUE
Should City Council approve the purchase of approximately 500 acres of real property
for a proposed industrial park?
Staff recommends approval.
BACKGROUND
City will purchase from Pueblo Suburban Development, LLC approximately 500 acres of
land north of Vestas Towers America, Inc. (the "Property ") for a purchase price of
$8,000 per acre in accordance with the terms and conditions of the Contract To Buy
And Sell Real Estate. The closing is to occur December 18, 2009. The $4 million
purchase price will be paid as follows: $40,000 upon execution of the Contract, $2
million at closing; $1 million upon first anniversary of closing, and the balance on the
second anniversary of closing. The balance of purchase price without interest after
closing (approximately $2 million) will be represented by City's promissory note secured
by a deed of trust on the Property which provides for partial releases from the deed of
trust for portions of the Property sold and transferred by the City. City's obligation to
purchase is subject to City's approval of title and testing, including environmental
assessment. To the extent TIF funds are available, City will cause Greenhorn Drive to
be extended south to the north line of the Property. City will grant an easement along
the north 25 feet of the Property for a water main.
City Council finds and determines that this project meets and complies with the intent
and purpose of the criteria and standards established by Ordinance No. 6381 and will
create employment opportunities justifying the expenditure of public funds from the
1992 -2011 Sales and Use Tax Capital Improvement Projects Fund.
FINANCIAL IMPACT
$4 million will be transferred, expended and pledged for the purchase of the real
property out of the 1992 -2011 Sales and Use Tax Capital Improvement Projects Fund.
CONTRACT TO BUY AND SELL REAL ESTATE
THIS CONTRACT TO BUY AND SELL REAL ESTATE ( "Contract') is made and entered
into as of September 14, 2009 (the "Effective Date ") by and between Pueblo Suburban Development,
LLC, a Colorado limited liability company (the "Seller ") and the City of Pueblo, a municipal
corporation (the "Buyer "). Buyer and Seller are sometimes referred to herein as a "Party" and,
collectively, as the "Parties."
Recitals
A. Seller is the owner of approximately 698 acres of unimproved real property in Pueblo
County, Colorado. Seller is desirous of selling the southerly portion of its property lying
immediately north of Vestas Towers America, Inc. ( "Vestas ") consisting of approximately 500 acres
to be located by mutual agreement of Seller and Buyer (the "Land "). The legal description of the
Land will be determined by Survey (as defined in Paragraph 3(b) below) and attached hereto as
Exhibit A.
B. Buyer is desirous of purchasing the Property (as defined in Paragraph 1 below) from
Seller.
C. Seller is willing to sell the 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. Sale and Purchase Seller agrees to sell and Buyer agrees to purchase the Land,
together with all tenements, hereditaments, appurtenances, interests, rights, benefits, easements and
improvements thereunto belong or appertaining (collectively, the "Property"), on the terms and
conditions set forth in this Contract.
2. Purchase Price and Terms The purchase price for the Property shall be $8,000.00 per
acre, payable as follows:
(a) $40,000.00 as Earnest Money payable upon execution hereof;
(b) $2,000,000.00 on Closing Date (as defined in Paragraph 5 below);
(c) Buyer executing and delivering to Seller on Closing Date its promissory note
payable to Seller in an amount equal to the balance of the Purchase Price ( "Promissory Note "),
secured by a fi t deed of trust encumbering the Property which shall provide that Seller shall grant
parti el s from the deed of trust upon written request by Buyer for any portion of the Property
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sold and transferred by Buyer ( "Deed of Trust "). The principal of the Promissory Note shall be
payable without interest in two installments as follows: $1,000,000.00 upon the first anniversary of
the Closing Date and the balance thereof upon the second anniversary of the Closing Date. The form
and content of the Deed of Trust and Promissory Note shall be mutually agreed upon by Buyer and
Seller.
(d) All amounts paid by Buyer shall be cash, electronic transfer funds, certified check, or
cashier's check.
The Earnest Money shall be credited against the Purchase Price at Closing, provided,
that if the sale and purchase contemplated herein does not close for any reason other than a default by
Buyer hereunder, the Earnest Money shall be returned by Seller to Buyer free and clear from any and
all claims Seller may have.
3. Evidence of Title
(a) Title Commitment and Policy Within twenty (20) days after Seller's receipt
of the Survey, Seller shall order and obtain, at Seller's expense, and deliver to Buyer a current
commitment for extended coverage title insurance in the amount of the Purchase Price, together with
legible copies of all documents listed as exceptions therein, and a current certificate of taxes due with
respect to the Property, from Land Title Guaranty Company (the "Title Company "), on the current
standard form of extended ALTA Owners Policy (collectively, the "Title Commitment"). The Title
Company shall promptly provide copies of any amendments or modifications of the Title
Commitment to Buyer. At Closing or as soon as reasonably practicable after Closing, the Title
Company shall issue and deliver to Buyer the owner's title insurance policy referred to above (the
"Title Policy "), issued by the Title Company insuring Buyer's title to the Property consistent with the
Title Commitment, providing "gap" coverage, deleting the standard exceptions, endorsing over
arbitration and creditors' rights exceptions, if necessary, and subject only to taxes and assessments
for the year of Closing and subsequent years, and the other matters approved by Buyer in accordance
with subparagraph (c) below and any encumbrances upon the Property caused by Buyer (the
"Permitted Exceptions "). At Closing, Seller shall pay the premium for the Title Policy. Buyer may
obtain such other endorsements to the Title Policy as Buyer desires, at the expense of Buyer, except
for endorsements obtained at Seller's cost, as provided in subparagraph (b) below. Seller shall
provide such affidavits or certificates as may be required by the Title Company to remove all liens,
including, without limitation, mechanics' or materialmen's liens, as exceptions to the Title Policy.
(b) Sury ev . Within twenty (20) days of the Effective Date, Seller shall obtain and
deliver, at Seller's expense, to the Title Company and Buyer a boundary and improvements survey
plat containing the description of the Land and location of all improvements and encroachments
thereon, including but not limited to any improvements, fence locations and easements (whether
visible or recorded), rights of way (whether visible or recorded) and roadways adjacent to the Land,
in a form sufficient to enable the Title Company to issue the Title Policy in compliance with this
Para p 3, ertified to Buyer, Seller, and the Title Company (the "Survey ").
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(c) Title Defects and Objections Buyer will have twenty (20) days from receipt
of the Title Commitment and Survey to notify Seller in writing of any objections to any items
identified in the Title Commitment or on the Survey, or of any other objections as to title matters.
Seller will have until fifteen (15) days after receipt of Buyer's written objections ( "Seller's Cure
Period ") to elect, at its reasonable discretion, to cure all items to which Buyer has objected, cause
such items to be modified in a manner which is reasonably satisfactory to Buyer or to advise Buyer
that Seller does not intend to cure such items. Alternatively, within the Seller's Cure Period, Seller at
Seller's cost may elect to obtain one or more endorsements to the Title Commitment, in a form
reasonably acceptable to Buyer, providing title insurance protection with regard to any objections
raised by Buyer. If Seller fails to cure to the satisfaction of Buyer any written objection by Buyer of
which Seller has been given notice in accordance with this subparagraph (c), or elects not to cure,
then Buyer may elect, as its sole remedy to either (i) waive the objection by written notice to Seller
within ten (10) days after expiration of Seller's Cure Period and proceed to Closing as herein
provided, or (ii) terminate this Contract by written notice to Seller, in which case the Earnest Money
will be promptly returned to Buyer and the Parties will be released from all obligations hereunder,
except for any obligations that expressly survive the termination of this Contract. Buyer will have
five (5) business days after receipt of any amendment or update to the Title Commitment or Survey
to object to any changes in the same fashion as objections to the initial Title Commitment or Survey
under this subparagraph (c). Anything above to the contrary notwithstanding, Seller shall be
obligated to, and shall cause all financing, mortgage, judgment and tax liens to be removed as title
exceptions prior to or concurrently with Closing.
4. hisnection Commencing on the Effective Date and continuing during the term of this
Contract until the first to occur of the Closing Date or termination of this Contract, Buyer, its agents
and employees, shall have the right to enter and access the Property at reasonable times for the
purpose of making such inspections, studies, tests and investigations ( "Testing ") as Buyer may elect
and which it deems necessary to determine the suitability of the Property for Buyer's intended use.
All such Testing shall be performed by Buyer or its agents or employees at Buyer's sole cost and
expense. Buyer shall keep all Testing results confidential and shall deliver copies of all Testing
results to Seller. Buyer shall indemnify, defend and hold Seller and the Property harmless from and
against any and all costs, liabilities, claims, demands, actions and expenses arising from or in
connection with such Testing and, in the event Buyer does not close on the purchase of the Property,
Buyer shall repair any damage to the Property or improvements thereon caused by such Testing.
This indemnification shall not be deemed to apply to costs, liabilities, claims, demands, actions or
expenses arising from Seller's negligent acts or omissions or any pre - existing condition (including,
without limitation, environmental conditions) within the Property. If Buyer is not satisfied with the
physical condition of the Property, Buyer may terminate this Contract by written notice given to
Seller at least five (5) days prior to Closing Date.
5. Date of Closing The closing of Buyer's purchase of the Property ( "Closing ") shall
take place on or before December 18, 2009. The date of Closing ( "Closing Date ") and the hour and
place of Closing shall be mutually agreed upon by the Parties, but in no event later than December
18, 2V
6. Transfer of Title Subject to payment of the Purchase Price as provided in Paragraph
2 and compliance by Buyer with the other terms and provisions hereof, Seller shall execute and
deliver to Buyer on Closing Date a Special Warranty Deed conveying marketable fee simple title to
the Property to Buyer free of financing, mortgage, judgment and tax liens, subject only to the
Permitted Exceptions. The form and content of the Special Warranty Deed shall be mutually agreed
upon by Buyer and Seller.
7. Closing Costs. Documents and Services Buyer and Seller shall sign and complete all
customary or required documents at or before Closing. Fees for real estate closing services, if any,
shall be paid at Closing, one -half by Buyer and one -half by Seller.
8. Prorations General taxes and assessments for the year of Closing, if any (which shall
be based on the taxes for the calendar year immediately preceding Closing), water, sewer, utility
charges and other usual and customary items shall be prorated between Seller and Buyer as of the
Closing Date.
9. Possession Possession of the Property shall be delivered to Buyer by Seller on
Closing Date.
10. Time of Essence/Default and Remedies Time is of the essence hereof. If any
obligation is not performed there shall be the following remedies:
(a) If Buyer is in Default In the event Buyer defaults in the performance of its
obligations hereunder, Seller shall have the right to (i) terminate this Contract by written notice to
Buyer and retain the Earnest Money as liquidated damages, or (ii) treat this Contract as being in full
force and affect and to obtain specific performance, but not any damages.
(b) If Seller is in Default In the event Seller defaults in the performance of its
obligations hereunder, Buyer shall have the right to (i) terminate this Contract by written notice to
Seller and obtain the return of the Earnest Money, or (ii) treat this Contract as being in full force and
effect and to obtain specific performance, but not any damages.
(c) Costs and Attorneys' Fees Anything to the contrary herein notwithstanding,
in the event of any action or litigation arising out of this Contract, the court shall award to the
prevailing party all reasonable costs and expenses, including reasonable attorneys' fees. Exclusive
venue and jurisdiction for any such litigation shall be in the District Court in and for Pueblo County,
Colorado. The provisions of this subparagraph (c) shall survive Closing or termination of this
Contract.
11. Representations and Warranties of Seller The Seller represents and warrants to
Buyer as follows:
(a) Seller has full power, capacity and authority to execute and deliver this
CM , all other documents required to be executed and delivered by Seller under this Contract
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and to perform its obligations hereunder.
(b) This Contract has been, duly authorized, executed and delivered by Seller and
constitutes the legal, valid and binding obligation of Seller, enforceable against Seller in accordance
with its terms.
(c) Seller is not a party to any judicial, administrative, arbitration or other similar
proceedings relating in any manner to the Property or to Seller's interest therein or that may
detrimentally affect Seller's ability to perform its obligations under this Contract or the ability of
persons who acquire portions of the Property to develop, own or operate the Property. Seller has not
received notice of (and to Seller's knowledge there is no basis for) any pending or threatened claims,
actions, suits or other proceedings of the nature described in the immediately preceding sentence, nor
are any such claims, actions, suits or other proceedings contemplated by Seller.
(d) To Seller's knowledge, there are no violations of laws, rules, regulations,
ordinances, codes, covenants, conditions, restrictions, instructions or agreements applicable to the
Property. Seller has not received notice from any governmental or other agency or any other person
with respect to any such violations concerning the Property.
(e) Other than this Contract and the Option dated June 15, 2009 between the
Parties, there are no contracts or other obligations outstanding for the sale, lease or transfer of all or
any part of the Property.
(f) None of the Property is included in the U.S. Department of Agriculture
Conservation Reserve Program.
(g) There is no default, nor has any event occurred which, with the passage of
time, the giving of notice or both, would constitute a default under any agreement, contract,
mortgage, deed of trust or other instrument which relates to Seller or the Property or which affects
the Property in any manner.
(h) To Seller's knowledge (i) the Property is and at all time has been in
compliance with all applicable state and federal environmental laws, regulations, ordinances, rules
and orders (collectively, "Environmental Laws "); (ii) there are no pending or threatened judicial or
administrative proceedings ofany kind with respect to the Property alleging the violation or potential
violation of any Environmental Law nor are there any pending or threatened investigations of any
matters relating to any Environmental Laws with respect to the Property; (iii) there has been no
release or threatened release of any hazardous, toxic or otherwise regulated substance, waste,
contaminant or material (collectively "Hazardous Materials "), as such terms are defined in any
applicable Environmental Law, on, in or at the Property, or any part thereof; (iv) no portion of the
Property has been used as a dump site, a storage site for solid wastes or the location of above ground
or underground fuel or storage tanks; and (v) no Hazardous Materials are currently present on or
have t any f e been stored or used on the Property, except for fertilizers and pesticides.
Seller shall indemnify and hold Buyer harmless and defend Buyer from any loss,
liability or expense, including reasonable attorneys' fees, incurred by Buyer, or any claim made
against Buyer, by reason of Seller's breach of any of the foregoing representations or warranties.
12. Representations and Warranties of Buyc Buyer represents, warrants and covenants
as follows:
(a) Buyer has full power, capacity and authority to execute and deliver this
Contract and all other documents required to be executed and delivered by Buyer under this Contract
and to perform its obligations hereunder.
(b) This Contract has been duly authorized, executed and delivered by Buyer and
constitutes the legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance
with its terms.
(c) To the extent sufficient funds are made available therefor through the use of
tax increment financing derived from urban renewal plans for the Property or portion thereof, Buyer
will cause Greenhorn Drive to be extended south along the existing right of way to north line of the
Property.
(d) Buyer will not by the extension of Greenhorn Drive impair Seller's
accessibility to the proposed water line to Seller's approximately 179 acres of land remaining after
the sale of the Property to Buyer ("Seller's Other Land").
(e) Buyer will grant to Seller or its assigns a twenty-five (25) foot easement for
installation, maintenance, repair and replacement of a water main within any public utility easement
or roadway on the Property, and, if required by Seller or its assigns, along the north twenty-five (25)
feet of the Property.
(f) If Seller is not in default hereunder, Buyer's staff will expedite the processing
of Seller's petition to annex Seller's Other Land.
Buyer shall indemnify and hold Seller harmless from any loss, liability or expense,
including reasonable attorneys' fees, incurred by Seller, or any claim made against Seller, by reason
of Buyer's breach of the foregoing representations or warranties.
13. Seller Covenants Commencing on the Effective Date and until the first to occur of
Closing or termination of this Contract, Seller shall not (a) lease, sell, convey or further encumber
any portion of the Property, (b) consent to any zoning or other change affecting the use of the
Property, except for those requested or approved by Buyer, or (c) cause any other changes which
affect the condition of Seller's title to the Property or otherwise adversely impact the condition of the
Property or Buyer's intended use thereof.
Notices Any notice required or permitted to be given or delivered under this
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Contract shall be in writing and shall be given by personal delivery, or by the United States Postal
Service, by registered or certified mail, postage prepaid, or reputable national overnight courier
service:
(a) If to Buyer, addressed to:
City Manager
City of Pueblo
1 City Hall Place
Pueblo, Colorado 81003
Telephone No. (719)553 -2655
with a copy to: Thomas E. Jagger, Esq.
503 N. Main, Suite 127
Pueblo, Colorado 81003
Telephone No. (719)545 -4412
(b) If to Seller, addressed to:
Pueblo Suburban Development, LLC
Albert W. Vanzeyst
26033 Estates Ridge Drive
Sorrento, Florida 32776
Telephone No. (407)620 -3731
with a copy to: Nicholas G. Muller, Esq.
475 17th Street, Suite 940
Denver, Colorado 80202
Telephone No. (303)297 -1970
or to such other address or person as any party may from time to time specify in a writing delivered
to the other party in the manner provided in this paragraph. Any notice shall be deemed delivered on
the day on which personal delivery is effected or three (3) days after deposit in the mail in the case of
registered or certified mail, and one (1) business day in the case of overnight courier.
15. Assignment This Contract and the rights granted to Buyer hereunder may be
assigned by Buyer with Seller's consent, provided, such consent shall not be unreasonably withheld,
conditioned or delayed. Except as so restricted, this Contract shall inure to the benefit of and be
binding upon the Parties and their respective successors and assigns. In no event will Buyer assign
its obligation to pay Seller under the Promissory Note provided for hereunder, and Buyer may prepay
such Promissory Note without penalty at any time.
16. Modification No subsequent modification of any of the terms of this Contract shall
be lid or ' inding upon the Parties or enforceable unless made in writing and signed by the Parties.
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17. 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.
18. 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.
19. Validi . If any provision of this Contract shall be held to be invalid or
unenforceable, the same shall not affect in any respect whatsoever the validity or enforceability of
the remainder of this Contract.
20. Broker Buyer and Seller represent and warrant to the other than no broker or finder
has been engaged by such Parry in connection with this transaction. Seller agrees to indemnify,
defend and hold Buyer 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
Buyer 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 Seller.
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.
21. Applicable Law This Contract will be construed and enforced in accordance with the
laws of the State of Colorado (without giving effect to its choice of law principles).
22. Interoretation 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.
23. Survival of Representations The representations, warranties, covenants and
agreements of Buyer and Seller in this Contract are and shall be construed to be covenants running
with the Property, shall survive the Closing of the transaction contemplated hereby and recordation
of the Special Warranty Deed, may be enforced by either Buyer or Seller after Closing Date, and
shall not be merged or be deemed to be merged into the Special Warranty Deed.
24. Third Parties Buyer and Seller and their respective successors and permitted assigns
are the only parties to this Contract and are the only parties entitled to enforce this Contract. Nothing
contained in this Contract nor any provision hereof is intended to give or shall be construed to give
or confer, directly or indirectly, or otherwise, upon any third party any right, remedy or benefit
hereunder
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25. Counterparts This Contract maybe executed in multiple counterparts, which taken
together shall be deemed one original.
26. Exclusivitv In consideration of the time and resources which the Buyer will devote
to the transactions contemplated herein, Seller agrees that until Closing or the earlier termination of
this Contract, Seller will not, directly or indirectly, solicit, initiate or enter into discussions or
transactions with, or encourage, or provide any information to, any individual, entity or group (other
than to Buyer and Buyer's designees) concerning any sale or lease of the Property or any similar
transaction or alternative. The provisions of this Paragraph shall not be construed to prohibit Seller
or Buyer from discussing the transaction contemplated herein with their attorneys or other
consultants.
27. Option The Option executed June 15, 2009 between the Parties shall terminate and
be cancelled on Closing Date and each party shall be released from all obligations thereunder.
IN WITNESS WHEREOF, the parties have signed this Contract as of the Effective Date.
BUYER
THE CITY OF PUEBLO,
A MUNICIPAL CORPORATION
By :Gocy
President the City Council 6 '
Attest:
City Wrk
SELLER
PUEBLO SUBURBAN DEVELOPMENT,
A COLORADO LIMITED
COMPANY /� /
Name: Albert W. Vanzeyst
Title: Manager and Member
Approved as to form:
City Attome
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RELEASE AND SETTLEMENT AGREEMENT
THIS RELEASE AND SETTLEMENT AGREEMENT (this "Agreement ") is entered into
this / x b' day of , 2011, by and between PUEBLO SUBURBAN
DEVELOPMENT, LLC, a Colorado limited liability company (herein after referred to as "PSD ")
and the City of Pueblo, a Municipal Corporation (hereinafter referred to as "City") for the purpose
of settling all claims, controversies and disputes between the parties. PSD and City may each be
referred to herein simply as a "party" or collectively as the "parties."
RECITALS
WHEREAS, a dispute has arisen with regard to a certain Contract to Buy and Sell Real Estate
dated September 14, 2009, as amended (hereinafter the "Contract ") entered into by the parties,
WHEREAS, City had terminated the Contract and filed suit in the Pueblo County District
Court, Case No. 11CV410, for return of its earnest money pursuant to the Contract (hereinafter
referred to as the "Civil Action "); and
WHEREAS, each party, without admitting the merits of any claims of the other party, desires
to compromise and settle any and all obligations and disputes between them in any way relating to,
or arising from the Contract and the Civil Action.
NOW, THEREFORE, in consideration of the foregoing Recitals, the compromise and
settlement of claims set forth herein, and the payment to be made as hereinafter set forth, the parties
agree as follows.
TERMS AND CONDITIONS OF MUTUAL RELEASE AND SETTLEMENT
1 PSD will, within twenty -one (21) days of the date of this Agreement, pay the sum of
U.S. $30,000.00 to City in good funds. Good funds shall mean irrevocable wire transfer to City's
bank, certified bank check or bank cashier's check.
2 PSD hereby releases and forever discharges City and City's officers, agents,
employees, attorneys, assigns, and successors from any and all actions, claims, counterclaims, cross -
claims, and demands of whatever nature now existing, whether known or unknown, or which may
arise hereafter, relating to any acts or omissions of City and City's officers, agents, employees and
attorneys, arising from or related in any way to the Contract and the Civil Action.
3 In consideration of the foregoing and upon receipt of the payment described in
paragraph 1, including honor and payment of any bank instrument tendered by PSD, City shall
dismiss with prejudice the Civil Action currently pending m the Pueblo County District Court, Case
No 2011CV410
4 Upon receipt of the payment described in paragraph 1, including honor and payment
of any bank instrument tendered by PSD, City releases and forever discharges PSD and PSD's
officers, agents, employees, attorneys, assigns, and successors from any and all actions, claims,
counterclaims, cross - claims, and demands of whatever nature now existing, whether known or
unknown, or which may arise hereafter, relating to any acts or omissions of PSD and PSD's officers,
agents, employees and attorneys, arising from or related in any way to the Contract and the Civil
Action.
5 The parties represent and warrant that no other person or entity has any interest in the
claims, demands, obligations or causes of actions released by each under this Agreement. The
parties further warrant that no promise or inducement has been offered except as set forth herein and
that all agreements and understandings between the parties are expressed herein and that this
Agreement was entered into and executed without reliance on any statement or representation by the
other or the other's officers, agents, employees, and attorneys.
6 The parties represent and warrant that each has investigated the facts pertaining to this
settlement and this Agreement, and all matters pertaming thereto, to the full extent that party deems
necessary
7 This Agreement constitutes and comprises the entire agreement between the parties
with respect to the subject matter hereof. It supersedes all prior and contemporaneous oral and/or
written negotiations, agreements, and/or discussions. It may be amended only by an agreement in
writing, signed by the parties.
8 Each party hereto has participated in, and m any construction to be made of this
Agreement shall be deemed to have equally participated in the negotiation, drafting, and execution
of this Agreement and each of its parts.
9 The parties acknowledge and understand that a portion of the consideration given for
this Agreement is for the full and final release of any and all claims, demands and/or causes of action
which may have occurred in the past and are not yet known. The parties agree to voluntarily and
knowingly assume the risk of any mistake of fact, either mutual or unilateral, with respect to said
claims, demands and/or causes of action and shall not, under any circumstances, seek to present such
claims on their behalf against the other
10 PSD agrees to indemnify, defend and hold City and City's officers, agents,
employees, attorneys, assigns and successors harmless from and against all actions, claims,
counterclaims, cross - claims and demands of whatever nature, now existing, whether known or
unknown, or which may arise hereafter which may be asserted by third parties, and their successors
and assigns, arising from or related to the Contract.
11 The terms herein are contractual and not mere recitals. The payments, obligations
and agreements provided herein are the entire and sole consideration for this Agreement. The parties
-2-
shall be responsible for their own respective attorney fees, expenses and costs relative to the Civil
Action and this Agreement. Should City need to enforce the terms of this Agreement, City shall be
entitled to its reasonable attorneys' fees and costs.
12 As additional consideration for the compromise and settlement of claims contained
herein and the payments to be made hereunder, the parties agree that they each waive any right to
trial by jury in any litigation seeking enforcement of this Agreement, arising under this Agreement,
or in any way connected to this Agreement.
13 The undersigned certify that they have read this entire Release and Settlement
Agreement, have consulted with their attorney, or have had the opportunity to consult with their
attorneys concerning its terms, fully understand, approve and agree to its terms, and voluntanly enter
into the Agreement.
14 This Agreement shall be governed by and interpreted under the laws of the State of
Colorado Venue and junsdiction for any action arising out of or relating to this Agreement shall
he exclusively in the District Court, Pueblo County, Colorado
15 This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, and all of which, when taken together, constitute one and the same
Agreement. The signature of any party's representative to any counterpart shall be deemed a
signature to and may be appended to, any other counterpart. A faxed signature of a party on a
signature page of a counterpart of this Agreement shall be as valid and binding as the original ink
impression of such party
16 Each of the signatories executing this Agreement in a representative capacity on
behalf of any entity hereby certifies that he or she has actual authonty to so execute on behalf of his
or her principals
Executed at Pueblo, Colorado on the day and year first above written.
CITY OF PUEBLO, PUEBLO SUBURBAN DEVELOPMENT, LLCa
Municipal Corporation a Colorado limited liability company
B ��� LL�X LCIC�f By
e y Eicke an, Acting City Manager
Name
Title
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0
shall be responsible for their own respective attorney fees, expenses and costs relative to the Civil
Action and this Agreement. Should City need to enforce the terms of this Agreement, City shall be
entitled to its reasonable attorneys' fees and costs.
12. As additional consideration for the compromise and settlement of claims contamed
herein and the payments to be made hereunder, the parties agree that they each waive any right to
trial by jury in any litigation seeking enforcement of this Agreement, arising under this Agreement,
or in any way connected to this Agreement.
13 The undersigned certify that they have read this entire Release and Settlement
Agreement, have consulted with their attorney, or have had the opportunity to consult with their
attorneys concerning its terms, fully understand, approve and agree to its terms, and voluntarily enter
into the Agreement.
14 This Agreement shall be governed by and interpreted under the laws of the State of
Colorado. Venue and jurisdiction for any action arising out of or relating to this Agreement shall
lie exclusively in the District Court, Pueblo County, Colorado.
15 This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, and all of which, when taken together, constitute one and the same
Agreement. The signature of any party's representative to any counterpart shall be deemed a
signature to and may be appended to, any other counterpart. A faxed signature of a party on a
signature page of a counterpart of this Agreement shall be as valid and binding as the original ink
impression of such party
16. Each of the signatories executing this Agreement in a representative capacity on
behalf of any entity hereby certifies that he or she has actual authority to so execute on behalf of his
or her principals.
Executed at Pueblo, Colorado on the day and year first above written.
CITY OF PUEBLO, PUEBLO SUBURBAN DEVELOP, 4ENT, LLCa
Municipal Corporation a Colorado 1 d liability co luny
By BY ..L_.a..� .4
Jenny Eickelman, Acting City Manager
Name: FL_.3 FAT V N zE ys i
Title: W4Nn � i ry r ' &R i ' c
S: \Files -E (for all new City work)\CITY\LITIGATION\Pueblo Suburban Development, LLC \SMaritent Agreement (rev 07l 1 11).wpd