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HomeMy WebLinkAbout12373 RESOLUTION NO. 12373 A RESOLUTION APPROVING A CONTRACT TO BUY AND SELL REAL ESTATE, AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAID CONTRACT BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. By Resolution No. 12201, the City Council had found and determined that the expenditure of $4,350,000 for purchase of approximately 11.2 acres of real property with industrial buildings containing approximately 192,000 square feet under roof, to be made available for primary job creating capital improvement projects meets and complies with the criteria and standards established by Ordinance No. 6381, as amended by Ordinances No. 7583 and 7836, and will create employment opportunities justifying the expenditure of public funds. SECTION 2. The Contract to Buy and Sell Real Estate dated as of March 27, 2012 between Pueblo, a Municipal Corporation and Woodmen Joint Venture, LLP, Caleb Development, LLC and Sunborne XII, LLC (collectively "Seller"), a true copy of which is attached hereto (“Contract”), having been approved as to form by the City Attorney, is hereby approved. The President of City Council is authorized to execute and deliver the Contract in the name and on behalf of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 3. Funds in the aggregate amount of $4,350,000 were heretofore authorized by Resolution No. 12201 to be transferred, expended and made available out of the 1992- 2016 Sales and Use Tax Capital Improvement Projects Fund for the sole purpose of paying the $4,300,000 purchase price under the Contract, and paying up to $50,000 for appraisal, technical and professional services associated with inspection, testing, closing costs and other services and costs as may be reasonably incurred by the City in connection with the Contract (the "Associated Acquisition Costs"). The funds authorized to be transferred and expended shall be held by the City and released, disbursed and paid by the Director of Finance in the following manner: the sum of $4,300,000 to be paid to or for the benefit of Seller in accordance with the terms of the Contract; and the sum of $50,000 for Associated Acquisition Costs, whenever incurred. 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, and all actions heretofore taken in connection therewith are ratified and affirmed. SECTION 5. This Resolution shall become effective upon passage and approval. INTRODUCED: April 9, 2012 BY: Leroy Garcia COUNCIL PERSON Background Paper for Proposed RESOLUTION # M-22 DATE:AGENDA ITEM April 9, 2012 DEPARTMENT: Law Department Thomas J. Florczak, City Attorney TITLE A RESOLUTION APPROVING A CONTRACT TO BUY AND SELL REAL ESTATE, AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAID CONTRACT ISSUE Should City Council approve a Contract to purchase Lots 46 and 47, Pueblo Memorial Airport Industrial Park Subdivision, known as 1 McDonnell Douglas Avenue (the former Boeing facility) for $4.3 million? RECOMMENDATION PEDCO recommends that City Council approve the Contract. BACKGROUND This Resolution would approve a contract for the purchase of the former Boeing facilities at the Pueblo Memorial Airport Industrial Park for $4,300,000. The Contract provides an opportunity for the City to perform inspection and testing, and to terminate the Contract if conditions are unacceptable. Though the Contract requires the Sellers to make numerous representations, covenants and warranties regarding the Property, those representations, covenants and warranties terminate two (2) yeas after the closing of the transaction, so the Property is essentially being purchased "AS IS." The Property is also subject to two (2) short term leases which the City would take over as landlord until terminated. Should the City terminate the Contract in accordance with its terms, the $10,000 earnest money deposit would be returned. As previously authorized in Resolution No. 12201, the purchase price, together with costs for appraisal, inspection and other services, would be transferred from the 1992-2016 Sales and Use Tax Capital Improvement Projects Fund. In connection with that Resolution, the Council had previously found and determined that the acquisition meets and complies with the intent and purpose of the criteria and standards established by Ordinances No. 6381, 7583 and 7836 and will create employment opportunities justifying the expenditure of these funds. FINANCIAL IMPACT See Background. t. 3/26/12 CONTRACT TO BUY AND SELL REAL ESTATE THIS CONTRACT TO BUY AND SELL REAL ESTATE ( "Contract ") is made and entered into as of March 27, 2012 (the "Effective Date ") by and between Woodmen Joint Venture, LLP, a Colorado limited liability partnership ( "Woodmen "), Caleb Development, LLC, a Colorado limited liability company ( "Caleb ") and Sunborne XII, LLC, a Colorado limited liability company ( "Sunborne ") (collectively, Woodmen, Caleb and Sunborne are referred to herein as "Seller ") and Pueblo, a Municipal Corporation (the "Buyer "). Buyer and Seller are each sometimes referred to herein as a "Party" and, collectively, as the "Parties." Recitals A. Seller is the owner of approximately 11.2 acres of real property with improvements consisting principally of a warehouse/ manufacturing facility with offices and storage buildings located within Pueblo County, Colorado, and more particularly described as: Lots 46 and 47, Pueblo Memorial Airport Industrial Park Subdivision, County of Pueblo, State of Colorado ( the "Property "). Seller desires to sell the Property. B. Buyer is desirous of purchasing the Property from Seller upon the terms and conditions set forth hereinafter. 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 Property, together with all tenements, hereditaments, appurtenances, interests, rights, benefits, easements and improvements thereunto belong or appertaining, including, without limitation, all crane rails, cranes and personal property located upon the Property, all of which are and shall constitute part of the Property as defined herein, on the terms and conditions set forth in this Contract. 2. Purchase Price and Terms. The Purchase Price of the Property is $4,300,000.00. payable as follows: (a) $10,000.00 as Earnest Money, to be held in trust by Heritage Title Company, and paid to Seller on Closing Date (as defined in Paragraph 5 below); 1 (b) $4,290,000.00 payable on Closing Date (as defined in Paragraph 5 below); 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 five (5) business days after the Effective Date of this Contract Seller shall order and obtain, at Seller's expense, a current commitment for 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 Heritage Title Company (the "Title Company "), on the current standard form of ALTA Owners Policy which deletes (or contains a commitment to delete) Schedule B -2 standard exceptions numbered 1 through 6 inclusive (collectively, the "Title Commitment "). The Title Company shall promptly provide copies of any amendments or modifications of the Title Commitment to Buyer in accordance with Paragraph 15. Buyer shall be responsible for any additional premiums charged by the Title Company for special or additional endorsements requested by Buyer other than (I) deletion of standard exceptions 1 through 6, and (II) endorsements obtained by Seller for the purpose of providing title insurance protection with regard to any objections raised by Buyer in accordance with the provisions of Subparagraph 3(c). 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, including deletion of standard exceptions. Buyer may obtain such other endorsements to the Title Policy as Buyer desires, at the expense of Buyer. 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) Survey. Within ten (10) days of the Effective Date, Seller shall order , at Seller's expense, for delivery to the Title Company, within thirty (30) days of the order date, with a copy to Buyer, an improvement survey plat meeting the requirements of §38 -51 -106, C.R.S. and containing the description of the Property and showing the 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 Property, in a form sufficient to enable the Title Company to issue the Title Policy in compliance with this Paragraph 3, certified to Buyer, Seller, and the Title Company (the "Survey "). 2 If Buyer does not purchase the Property, Buyer agrees to reimburse Seller for the cost of the Survey. (c) Title Defects and Objections. Buyer will have twenty (20) days from the date of Buyer's receipt of the Title Commitment and Survey, whichever shall last occur, to give notice to 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 ten (10) 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. Disclosures; Inspection. (a) Within twenty (20) days of the Effective Date, Seller shall provide true and complete copies of the following documents to Buyer, to the extent within Seller's possession or control (collectively, the "Property Documents "). Property Documents are defined as the documents listed on the attached Schedule (A), and any other documents concerning the Property in Seller's custody or control which are of a similar kind or type as the documents listed on Schedule A. Seller shall be under a continuing duty to provide additional documents which it may come to possess after such period, including but not limited to any new leases or extensions of leases entered into pursuant to Subparagraph 14(b). (b) The heating, ventilating, air conditioning, electrical, plumbing, water, roofing, storm drainage and sanitary sewer systems upon or servicing the Property were verified to be functioning. to Seller's satisfaction when Seller purchased the Property. As these systems and improvements have been needed to support building operations, they have been placed in service. If they have not been needed, they have not been placed in service. Seller can make no representation or warranty regarding the condition of these systems or improvements. Paragraph 4 (c) provides for Buyer, at Buyer's expense to inspect any and all of the systems of the Property. Seller has no objections to Buyer operating any of these systems so long as the cost of inspecting and operating them are Buyer's. (c) Commencing on the Effective Date and continuing during the term of this 3 Contract until the first to occur of the Closing Date or termination of this Contract, Buyer, its agents, consultants and employees, shall ,with at least 24 hours advance notice to and approval by Seller, which shall not be unreasonably withheld, be permitted to enter and access the Property during normal business hours of 8 am to 5 pm, Monday through Friday, 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. Buyer agrees to notify all of its agents, consultants and employees who will be entering the premises that they are not to unreasonably disturb, or engage in conversation with, any employees or representatives of the tenants at the Property. 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 notify Seller upon the completion of such tests and deliver copies of all Testing results to Seller upon Seller's request. Buyer shall indemnify, defend and hold Seller and the Property harmless from and against any and all direct 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 to 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. L 5. Date of Closing. The closing of Buyer's purchase of the Property ( "Closing ") shall take place on or befor, _ 6, 2012. The date of Closing ( "Closing Date ") and the hour and place of Closing shall be ' .1' agreed upon by the Parties, but in no event later than 26, 2012. 1 L A PGe'L 6. Transfer of Title. Subject to payment of the Purchase Price, compliance by Buyer with the other terms and provisions hereof, and the occurrence or waiver by Buyer of the Conditions Precedent to Closing defined and described in Paragraph 7, Seller shall execute and deliver to Buyer at Closing 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. Seller shall also execute and deliver to Buyer at Closing a bill of sale conveying Seller's interest in the cranes, crane rails and all other personal property associated with the Property, and an assignment of Seller's interest, if any, in any permits, licenses, warranties, indemnities, and contract rights and guarantees pertaining to the Property or any part thereof or improvement thereon. 7. Additional Conditions Precedent to Closing. The sale and purchase contemplated by this Contract is contingent upon occurrence of all of the following prior to Closing Date (collectively, the "Conditions Precedent to Closing "): (a) City Council of Buyer, as its governing body, approving this Contract on or before Closing. The Parties presently intend that this Contract will be presented to the City Council for approval on April 9, 2012; provided, however, that the date of presentation may be delayed or postponed in the sole and absolute discretion of Buyer. (b) Funds for the payment of the Purchase Price have been duly appropriated by 4 • Buyer's governing body in accordance with law and a sufficient unencumbered balance thereof exists sufficient for payment of the Purchase Price stated above. (c) The results of inspection and testing do not indicate any conditions which are deemed unacceptable to Buyer, in Buyer's sole and absolute discretion. (d) The terms of any leases upon the Property are determined by Buyer not to be objectionable, in Buyer's sole and absolute discretion. In the event any of the Conditions Precedent to Closing are not satisfied on or before ten (10) days before the Closing Date, Buyer may by notice given to Seller not less than five (5) days prior to Closing Date (i) waive any or all of the above conditions in writing delivered to Seller and close the sale and purchase of the Property, or (ii) elect to terminate this Contract, in which event the Earnest Money shall be returned to Buyer and each party will be released from all obligations under this Contract. 8. 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. 9. 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, the Pueblo Combined Service Fee, rents and other usual and customary items shall be prorated between Seller and Buyer as of the Closing Date. 10. Possession. Possession of the Property shall be delivered to Buyer by Seller on Closing Date . At Closing, Seller shall provide true copies of all leases in effect at the time of Closing to Buyer, and furnish Buyer with (I) a signed acknowledgement by Seller that to the best of Seller's knowledge, the lessees and tenants of the Property are not in any material default thereof, and (II) an acknowledgement signed by authorized representatives of lessees and tenants that the leases attached thereto are true and correct copies of the leases, that lessees and tenants are not aware of any material breach of the lease or default by Seller, and stating the amount of all damage and security deposits being held by Seller. Provided that Seller has furnished the foregoing, upon Closing, Buyer agrees to take possession subject to all terms and conditions of such leases of the Property and will receive from Seller and be responsible for any tenant damage and security deposits and will release Seller of any further obligations with regards to such leases. 11. 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's sole remedy shall be to terminate this Contract and retain the entire amount of the Earnest Money as liquidated damages and in lieu of all other remedies it may pursue, and Seller shall have no right to damages. (b) If Seller is in Default: In the event Seller defaults in the performance of its 5 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. 12. Representations and Warranties of Seller. Buyer and Seller acknowledge that the Property is being sold "As -Is, Where -Is, with all faults," and Seller is making no representations or warranties regarding the Property, except for those set forth in Paragraphs 4(a), 10, 11, 14, 21, 25 and this Paragraph 12. Seller further represents and warrants to Buyer, to the best of Seller's knowledge, as follows ( "to the best of Seller's knowledge" means the knowledge of the officers , members and managers of Woodmen, Caleb and Sunborne, after diligent inquiry): (a) Seller has full power, capacity and authority to execute and deliver this Contract and all other documents required to be executed and delivered by Seller under this Contract 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 the best of 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) There are no contracts, leases, options or other obligations outstanding for the sale, lease or transfer of all or any part of the Property except for the existing leases which have been disclosed by Seller to Buyer. (f) To the best of Seller's knowledge, Seller has furnished all Property Documents (as defined in Paragraph 4(a)) in Seller's possession to Buyer. 6 (g) None of the Property is included in the U.S. Department of Agriculture Conservation Reserve Program. (h) 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. (i) To the best of Seller's knowledge and during the time Seller owned the Property (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 of any 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 at any time been stored or used on the Property. For purposes of this Agreement, "Hazardous Materials" includes (i) any "hazardous waste ", "underground storage tanks ", "petroleum ", "regulated substance ", or "used oil" as defined by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 9601, et seq.) as amended, or by any regulations promulgated thereunder; (ii) any "hazardous substance" as defined by the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601, et seq.) as amended, or by any regulations promulgated thereunder (including, but not limited to, asbestos and radon); (iii) any "oil, petroleum products, and their byproducts ", as defined by C.R.S. 1973 § 25- 17 -101 et seq., as amended, or by any regulations promulgated thereunder; (iv) any "hazardous waste" as defined by the Colorado Waste Act, C.R.S. 1973 § 25 -15 -101, et seq., or by any regulations promulgated thereunder; and (v) any substance the presence of which on, in or under the Property is prohibited by any law similar to those set forth above. The provisions of this Paragraph 12 shall survive Closing by two (2) years. 13. Representations and Warranties of Buyer. 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) Subject to approval by Buyer's City Council, this Contract will have 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. 7 14. Seller Covenants. (a) Except as provided in subparagraph (b), Commencing on the Effective Date and until the first to occur of Closing or termination of this Contract, Seller shall not, except with the prior written consent of Buyer (which consent may be withheld, conditioned or delayed at Buyer's sole and absolute discretion): (I) enter into new leases or extend current leases, sell, convey or further encumber any portion of the Property, (II) consent to any zoning or other change affecting the use of the Property, except for those requested or approved by Buyer, or (III) 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. (b) Until the contingencies set forth in Paragraph 7 have either been removed by Buyer or satisfied, the Seller will have the authority, upon prompt notice to Buyer, to extend or modify existing leases with current tenants, or to negotiate and sign leases with potential new tenants, and, subject to Buyer's rights under this Contract, may seek and accept backup offers to purchase the Property contingent upon Buyer's termination of the Contract or failure to Close. Seller understands and expressly acknowledges that any such extension of an existing lease or new lease which contains terms objectionable to Buyer or which extends the term of the lease or any extension of the term of the lease, or otherwise delays possession by Buyer, beyond June 1, 2012, may be found objectionable by Buyer, in Buyer's sole and absolute discretion, and will constitute a failure of a condition precedent for Buyer to close. 15. Notices. Any notice required or permitted to be given or delivered under this 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 200 S. Main Street Pueblo, Colorado 81003 Telephone No. (719)553 -2655 with a copy to: City Attorney 503 N. Main, Suite 203 Pueblo, Colorado 81003 Telephone No. (719) 562 -3899 (b) If to Seller, addressed to: Sunborne XII, LLC Attention: LeRoy Landhuis 212 N. Wahsatch Ave., Suite 301 Colorado Springs, CO 80903 8 Phone: 719 - 635 -3200 With a copy to: Dave Cocolin Paradigm Realty Advisors, LLC 4500 S. Garnett Rd., Suite 600 Tulsa, OK, 74146 Phone 918 - 665 -1900 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. Either Party may provide a copy of any notice by email to the other Party, but it shall not be deemed sufficient notice under this Contract. 16. Assignment. This Contract and the rights granted to Buyer and Seller hereunder may be assigned by Buyer or Seller with the other Party' s written 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. Seller shall have the right to transfer all or part of the Property to Buyer in a manner which qualifies as a tax deferred exchange pursuant to the provisions of Section 1031 and /or other provisions of the Internal Revenue Code. Buyer agrees to execute additional documents and perform additional acts, as may be reasonably requested by Seller in connection with the Exchange, provided, however, (i) the successful completion of the Exchange shall not be a condition to or cause any delay in the performance of Seller's obligation to convey the Property to Buyer pursuant to the Contract, and (ii) Buyer shall not incur any additional expense or incur any liability or contingent liability (including but not limited to any risk of incurring any characterization or remediation expense or liability pursuant to state or federal environmental laws or regulations) as a result of the Exchange. 17. Modification. No subsequent modification of any of the terms of this Contract shall be valid or binding upon the Parties or enforceable unless made in writing and signed by the Parties. 18. 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. 19. 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. 20. Validity. 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. 21. Broker. Buyer and Seller represent and warrant to the other that no broker or finder 9 has been engaged by such Party 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. LeRoy Landhuis is a licensed real estate broker in the State of Colorado. 22. 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). 23. Interpretation. Whenever the context so requires, the singular number shall include the plural and the plural the singular, and the use of any gender shall include all genders. 24. Survival of Representations. The representations, warranties, covenants and agreements of Buyer and Seller in this Contract shall survive the Closing of the transaction contemplated hereby and recordation of the Special Warranty Deed for two (2) years, and shall not be deemed merged in such Deed and may be enforced by either Party unless barred by applicable periods of limitation or repose. 25. 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. 26. Counterparts. This Contract may be executed in multiple counterparts, all of which taken together shall be deemed one original. 27. Exclusivity. Except as provided in Subparagraph 14(b), 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 officers, employees, attorneys or consultants. IN WITNESS WHEREOF, the parties have executed this Contract effective as of the Effective Date. BUYER: SELLER: 10 PUEBLO, a Municipal Corporation SUNBORNE XII, LLC a Colora• o limited liability company By _ / Iii / ,'.L By/ All ' - side t . th- it Council : o andhuis, Manager er g Attest: CALEB DEVELOPMENT, LLC Cit lerk a Colorado limited liability company Approved as to form: By: andhuis, as President of Landhuis /No elopment Co., Manager City Attorne WOODMEN JOINT VENTURE, LLP a Colorado limited liability partnershi. By: /I ' oy AKhuis, Partner 11 SCHEDULE A PROPERTY DOCUMENTS TO BE PROVIDED BY SELLER (i) Copies of all leases, and lease amendments and extensions (ii) All service, labor and maintenance contracts affecting the Property, if any, (iii) Copies of the most recent property tax bill and latest assessment notice for the Property, (iv) Material engineering and soil reports relating to the Property, if any that are in Seller's possession, (v) All material specifications and plans concerning improvements on the Property, including as -built plans that are in Seller's possession, (vi) Copies of all documents in Seller's possession or control that are material to the environmental condition of the Property, including but not limited to the 2006 Environmental Phase I and Phase II reports prepared by Terracon (vii) Material documents concerning the Property as follows: a. Most recent Roof inspection and all documents concerning roof repairs made during Seller's ownership. b. Most recent water backflow tests c. Most recent boiler inspection d. All chiller and HVAC reports during Seller's ownership. e. Cranes — The cranes were not certified for use when Seller purchased the Property and have not been inspected or certified during Seller's ownership. 12 BILL OF SALE KNOW ALL MEN BY THESE PRESENTS, That Woodmen Joint Venture, LLP, a Colorado limited liability partnership as to an undivided 20% interest and Investment Property Exchange Services, Inc., a California corporation, as Qualified Intermediary under Exchange No. EX -09- 14886 for Caleb Development, LLC, a Colorado limited liability company as to an undivided 14% interest and Sunborne XII, LLC, a Colorado limited liability company as to an undivided 66% interest of the County of El Paso, State of COLORADO (Seller), for and in consideration of Ten Dollars and other Valuable Consideration to them in hand paid, at or before the ensealing or delivery of these presents by Pueblo, a Municipal Corporation of the County of Pueblo, in the State of COLORADO (Buyer), the receipt of which is hereby acknowledged, has bargained and sold, and by these presents does grant and convey unto the said Buyer, their personal representatives, successors and assigns, the following property, goods and chattels, to wit: a) Fixtures. If attached to the property on the date of this contract, lighting, heating, plumbing, ventilating and air conditioning fixtures, inside telephone wiring and connecting blocks/jacks, plants, mirrors, floor coverings, intercom systems, sprinkler systems and controls and Cranes, Crane Rails, and all other personal property associated with the Property b) Exclusions. The following attached fixtures are excluded from the sale: c) Personal Property. If on the property whether attached or not on the date of this contract: storm windows, storm doors, window and porch shades, awnings, blinds, screens, window coverings, cuttrrtr�m rods, drapery rods, storage sheds and all keys. If check the following are included: 18SmokeIFire Detectors, fj(ecurity Systems; and d) Transfer of Personal Property. The Personal Property to be conveyed at closing shall be conveyed, by Seller, free and clear of all taxes, (except personal property taxes for the year of closing), liens and encumbrances, except e) Trade Fixtures. With respect to trade fixtures, Seller and Buyer agree as follows: located at 1 McDonnell Douglas St., Pueblo, CO 81001 TO HAVE AND TO HOLD the same unto the said Buyer, their personal representatives, successors and assigns, forever. The said Seller covenants and agrees to and with the Buyer, their personal representatives, successors and assigns, to WARRANT AND DEFEND the sale of said property, goods and chattels, against all and every person or persons whomever. When used herein, the singular shall include the plural, the plural the singular, and the use of any gender shall be applicable to all genders. IN WITNESS WHEREOF, the Seller has executed this Bill of Sale Aprll 25, 2012. SELLERS: Woodmen Joint Venture, LLP, a Colorado Approved and Accepted: limited liability partnership Caleb D opmeut, LLC, a Colorado limited liabi • company - • •y L Ir�uis, Partner eRoy Landhuis as President of Landhuis Development Company, Manager Landht velo Company, Partner LeRoy Landhuis, President Sunborne . C, a Colorado limited Iiabili • o i,• : y oy Landhuis, Sole Member State of COLORADO County of El Paso `o`ttotSttuttortryy The foregoing instrument was acknowledged, subscribed and sworn to before me April 25, 2012 by �v`` PN ,,, �q� oi *4 Woodmen Joint Venture, LLP. a Colorado limited liability partnership as to an undivided 20% . re. '°.,� interest and Investment Property Exchange Services, Inc., a California corporation. as Qualified '•` o� Intermediary under Exchange No. EX -09 -14886 for Caleb Development, LLC, a Colorado limited ' , 1/ .' s 1. liability company as to an undivided 14% interest and Sunborne X11, LLC, a Colorado limit 43$° liability company as to an undivided 66% interest = Witness my had and official seal. �J PU �L \G : p e 72 Notary Public �i, nF CO'" e`' � c r ysi: My Commission expires / � _ �j�� ���� !l;h ESCROW NO. 456-H0334192-071-TS9 Reception 1905762 04/25/2012 02:10:26 After Recording Return to Pueblo, a Municipal Corporation 200 S Main St Pueblo, CO 81003 SPECIAL WARRANTY DEED This Deed, made April Z5, 2012 Between Woodmen Joint Venture, LLP, a Colorado limited liability partnership as to an undivided 20% interest and Caleb Development, LLC, a Colorado limited liability company as to an undivided 14% interest and Sunborne XII, LLC, a Colorado limited liability company as to an undivided 66% interest, of the County of El Paso, State of COLORADO, g-antor(s) and Pueblo, a Municipal Corporation, whose legal address is 200 S Main St , Pueblo, CO 81003 County of Pueblo, and State of COLORADO, grantee(s) WITNESSETH, That the grantor(s), for and in the consideration of the sum of TEN and NO /100 ($10.00) the receipt and sufficiency of which is hereby acknowledged, has grained, bargained, sold and conveyed, and by these presents does grant, bargain, sell, convey and confirm, unto the grantee(s), his heirs and assigns forever, all the real property together with improvements, if any, situate, lying and being in the County of Pueblo, State of COLORADO described as follows: Lots 46 and 47, Pueblo Memorial Airport Industrial Park Subdivision, County of Pueblo, State of Colorado. also known by street and number as 1 McDonnell Douglas St., Pueblo, CO 81001 TOGETHER with all and singular 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, either in law or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances. TO HAVE AND TO HOLD said premises above bargained and described, with the appurtenances, unto the grantee, their heirs and assigns forever. The grantor(s), for themselves, their heirs and personal representatives or successors, does covenant and agree that they shall and will WARRANT AND FOREVER DEFEND the above - bargained premises in the quiet and peaceable possession of the grantee(s), their heirs and assigns, against all and every person or persons claiming the whole or any part thereof, by, through or under the grantor(s). The singular number shall include the plural, the plural the singular, and the use of any gender shall be applicable to all genders. 1N WITNESS WHEREOF, the grantor has executed this on the date set forth above. SELLERS: Woodmen Joint Venture, LLP, a Colorado limited Caleb Development, LLC, a Colorado limited liability par rip liability c. L Landhuis, Partner - • • oy Landhuis as President of Landhuis Development Company, Manager Landhuis opmment Company, Partner ndhi uis, President • WDTRIMARK ESCROW NO.456- H0334192. 071 -TS9 Sunborne XII, LLC, a Colorado limited llabili company i • o La • ' . e Member STATE OF COLORADO jss: COUNTY OF El Paso The foregoing instrument was acknowledged before me April 25, 2012 by LeRoy Landhuis as Partner, and LeRoy Landhuis as President of Landhuis Development Company, Partner of Woodmen Joint Venture, LLP, a Colorado limited liability partnership as to an undivided 20% interest, LeRoy Landhuis as President of Landhuis Development Company, Manager of Caleb Development, LLC, a Colorado limited liability company as to an undivided 14% interest, and LeRoy Landhuis as Sole Member of Sunborne XII, LLC, a Colorado limited liability company as to an undivided 66% interest. Witness my hand and official seal. ` ```` gttt l ttl. uatti „ .4" '•,Qj s Notary Public COI 0 IA Ft b. , My Commission expires: / — — VIA PUBLIC .'p s ,,r OF •� 1e /1► ttIO