HomeMy WebLinkAbout09057
City Clerk’s Office Item # R-7
Background Paper for Proposed
Ordinance
COUNCIL MEETING DATE: October 11, 2016
TO: President Stephen G. Nawrocki and Members of City Council
CC: Sam Azad, City Manager
VIA: Gina Dutcher, City Clerk
FROM: Daniel C. Kogovsek, City Attorney
SUBJECT: AN ORDINANCE APPROVING A PURCHASE AND SALE AGREEMENT
BETWEEN THE COLORADO DEPARTMENT OF TRANSPORTATION, AN
AGENCY OF THE STATE OF COLORADO AND PUEBLO, A MUNICIPAL
CORPORATION AND WL ENTERPRISES, LIMITED, A NEW MEXICO LIMITED
PARTNERSHIP RELATING TO THE RELOCATION OF THE REGION 2
HEADQUARTERS OF THE COLORADO DEPARTMENT OF
TRANSPORTATION AND AUTHORIZING THE PRESIDENT OF THE COUNCIL
TO EXECUTE SAID AGREEMENT
SUMMARY:
Attached is a proposed Ordinance approving and authorizing the President of City Council to sign
a Purchase and Sale Agreement between the Colorado Department of Transportation (“CDOT”),
the City of Pueblo and WL Enterprises.
PREVIOUS COUNCIL ACTION:
None.
BACKGROUND:
WL Enterprises is the owner of approximately 12.02 acres of vacant land located on Outlook
Boulevard in the northern portion of the City of Pueblo. WL Enterprises is willing to convey the
12.02 acres of land to the City. The attached Purchase and Sale Agreement provides that the
City of Pueblo would then convey the 12.02 acres of land to CDOT for the construction and
development of related buildings which CDOT intends to use to relocate its Region 2
headquarters. The development will include an office building of approximately 42,000 square
feet and heavy duty automotive maintenance facilities and warehouse storage of approximately
56,000 square feet.
FINANCIAL IMPLICATIONS:
The City of Pueblo has agreed to fund certain development costs including the design and
construction of an estimated $341,000 in potable water supply lines and $410,000 for sanitary
sewer lines as well as other stormwater, roadway and sidewalk improvements to enable
development of the property. The City has also agreed to construct an extension of Outlook
Boulevard, anticipated to be approximately 750 feet in length and approve the roadway to a 5-
lane, 60 foot cross-section. It is anticipated that the City’s total expenditures for this project will
be approximately $2 million.
BOARD/COMMISSION RECOMMENDATION:
Not applicable to this Ordinance.
STAKEHOLDER PROCESS:
Not applicable to this Ordinance.
ALTERNATIVES:
If this Ordinance is not approved, CDOT may ultimately decide not to re-locate its Region 2
headquarters in the City of Pueblo.
RECOMMENDATION:
Approve the Ordinance.
Attachments:
Proposed Ordinance and Purchase and Sale Agreement
ORDINANCE NO. 9057
AN ORDINANCE APPROVING A PURCHASE AND SALE
AGREEMENT BETWEEN THE COLORADO DEPARTMENT OF
TRANSPORTATION, AN AGENCY OF THE STATE OF
COLORADO AND PUEBLO, A MUNICIPAL CORPORATION AND
WL ENTERPRISES, LIMITED, A NEW MEXICO LIMITED
PARTNERSHIP RELATING TO THE RELOCATION OF THE
REGION 2 HEADQUARTERS OF THE COLORADO
DEPARTMENT OF TRANSPORTATION AND AUTHORIZING
THE PRESIDENT OF THE COUNCIL TO EXECUTE SAID
AGREEMENT
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Purchase and Sale Agreement (“Agreement”) between the Colorado Department of
Transportation, an agency of the State of Colorado (“CDOT”), the City of Pueblo, a Colorado
municipal corporation and WL Enterprises, Limited, a New Mexico limited partnership, 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 the Agreement
in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest
same.
SECTION 2.
The officers and staff of the City are directed and authorized to perform any and all acts
consistent with the intent of this Ordinance and the attached Agreement which are necessary and
desirable to effectuate the transactions described therein.
SECTION 3.
This Ordinance shall become effective immediately upon final passage.
INTRODUCED: October 11, 2016
BY: Ed Brown
PASSED AND APPROVED: October 24, 2016
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made by and among;
the COLORADO DEPARTMENT OF TRANSPORTATION, an agency of the State of Colorado
created pursuant to Section 43-1-101, et seq., C.R.S. ("CDOT" or the "Purchaser"), the CITY OF
PUEBLO, a Colorado home rule municipal corporation (the "City"), and WL ENTERPRISES,
LTD., a New Mexico Limited Partnership, whose address is 4601 Eagleridge Place, Suite 110,
Pueblo, CO 81008 (the "Seller''). The State, City and Seller are each referred to herein as a "Party"
and collectively as the "Parties:'
RECITALS
A. Seller is the owner of that certain property located in Pueblo County, Colorado,
consisting of approximately 12.02 acres of vacant land located on Outlook Boulevard, Pueblo,
Colorado 81008, being a part of a larger parcel (Parcel Number 0501000049 in the records of
Pueblo County) provided by the Seiler for CDOT's consideration, more particularly described in
the legal description and map attached hereto and incorporated herein as Exhibit A (the
`.Property").
B. Seller is willing to convey all of Seller's right, title and interest in the Property to
City, in exchange for good and valuable consideration, which is to be further set forth in a separate
agreement between the Seller and City, and the receipt of which is mutually acknowledged by the
Seller and City.
C. CDOT is desirous of acquiring the Property from the Seller for the construction and
development of a building and related uses to which CDOT intends to relocate its Region 2
headquarters, including, but not limited to, an approximately 42,000 square foot office building,
approximately 56,000 square feet of heavy duty automotive maintenance facilities with interior
wareliouse storage, and exterior storage of maintenance and fleet vehicles (collectively, the
"Anticipated Use"), and City desires to facilitate such development by CDOT for the reasons set
forth in these recitals.
D. Pursuant to Sections 31-15-101(l)(c) and (d), C.R.S., City is empowered to enter
into contracts, and to acquire, hold, lease and dispose of real property.
E. Pursuant to Section 43-1-111, C.R.S., on behalf of CDOT, the chief engineer has
the authority to take and hold and to contract to take and hold title to real property, or any interest
therein, in the name of the Purchaser, whether such real property or interest is used, or intended to
be used, for right-of-way or maintenance purposes or for any other purpose authorized by law.
F. The City, in cooperation with CDOT and the Seller, has also agreed to fund certain
development costs, including the design and construction of an estimated $34I,000 in potable
water supply lines and $410,000 for sanitary sewer lines, as well as other storm water, roadway
and sidewalk improvements to enable development of the Property.
G. The Parties agree that the overall transaction is to be structured such that the Seller
will initially transfer the Property to City at a purchase price of Zero Dollars ($0,00), and subject
to the terms and conditions of this Agreement, City will then transfer the Property to CDOT, also
at a purchase price of Zero Dollars ($0.00).
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. Property C'onveygnee. Subject to the terms and conditions of this Agreement,
Seller agrees to convey the Property to City, and City agrees to acquire the Property from Seller.
Furthermore, subject to the terms and conditions of this Agreement, City agrees to subsequently
convey the Property to Purchaser at Closing, and Purchaser agrees to acquire the Property from
the City. All conveyances shall be subject to a reverter of the Property to the Seller in the event
the transaction is not fully consummated as contemplated herein for the Purchasers Anticipated
Use (as defined below). As used in this Agreement, the term "Property" includes all of the
following:
a. The real property depicted on Exhibit A together with all of Seller's right,
title and interest, if any, in and to the following: (i) any existing infrastructure improvements.
buildings and structures; (ii) all reversions, remainders, air rights, reversionary rights, easements,
rights-of-way, appurtenances, licenses, tenements, and hereditaments; (iii) all minerals and
mineral rights, including oil and gas, hard rock minerals and sand and gravel deposits ("Mineral
Rights"), and (iv) all water and water rights, wells and well rights, ditches and ditch rights,
reservoir and reservoir rights on, underlying or appurtenant to or associated with such real
property, whether non -tributary, tributary, or not non -tributary, whether decreed or undecreed, and
whether appropriated, conditional, appropriated, or unappropriated, together with all evidences of
any such rights, including, without limitation, any well permits, and any stock in any applicable
water or ditch companies (collectively "Water Rights") appertaining to or otherwise benefiting or
used in connection with such real property or the improvements;
b. All right, title, and interest of Seller in and to all existing warranties,
contracts (including service contracts), governmental permits, licenses, certificates, approvals,
entitlements and authorizations related to the Property (collectively, "Contracts and Permits");
C. All right, title and interest of Seller in and to all reports, studies and
materials that relate to the condition, development or developability of all or any portion of the
Real Property which are in the possession or control of Seller, including, but not limited to,
subdivision plats, governmental approvals, soils reports, marketing or other studies, surveys,
development plans, cost estimates, layouts, grading plans, flood plain analyses, environmental
assessments, aerial photographs, topographical maps, oil, gas, mineral or water studies, analyses,
evaluations or exploration reports, engineering studies, and other plans and studies of any kind
(collectively, the "Reports"); and
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d. Any and all other rights, privileges, and appurtenances owned by Seller and
in any way related to, or used in connection with the operation and development of the Property
to the extent that they are assignable (the "Intangible Property").
2. lnvesti ation ofthe Pro ert .
a. Initial Deliverics. Seller and City shall, within 10 days after the Effective
Date, deliver or cause to be delivered to CDOT the following materials, to the extent any of the
following related to the Property are in the possession or under the control of City or Seller (the
"Due Diligence Materials"):
(i) Title Documents. Copies of any existing title reports or policies for
the Property together with any copies of documents referenced therein and any existing surveys of
the Property.
(ii) Reports. Copies of any reports, studies and documents that relate to
the condition of all or any portion of the Property, including construction drawings, soils reports
or environmental assessments, oil, gas, mineral or water studies, analyses, evaluations or oil and
gas exploration reports.
(iii) Notices. Copies of all notices that Seller has received from any
governmental authority pertaining to any violation of any law, ordinance or regulation applicable
to the Property.
(iv) Other Information. If based on Purchaser's review, Purchaser
believes that there are other documents in the possession or control of City or Seller which are
related to the condition of the Property, Purchaser may deliver a written request to either City or
Seller, as applicable, for such documents, and such Party shall, if such documents are available,
promptly deliver any such documents to Purchaser.
(v) Exclusions fr rn Dop Di i pence Mate is s. The Due Diligence
Materials shall expressly exclude (i) any internal memoranda, attorney-client privileged materials
or marketing materials, and (ii) any information which is the subject of confidentiality agreement
between Sellers and a third party.
(vi) tion to Provide Purchaser Access to Due Diligence Materials. If
as to any specific Due Diligence Materials, providing copies would be substantially inconvenient
for City or Seller, in lieu thereof, Purchaser, its agents, or employees shall be entitled to examine
and make copies or prints of such items during all normal business hours, and shall provide
facilities for these purposes.
(vii) No lie r sentation or Warranty. . Purchaser acknowledges that
neither City nor Seller make any representation or warranty with respect to the accuracy,
completeness, reliability or source of any of the Due Diligence Materials or other documents or
information provided to Purchaser. Purchaser acknowledges that some of the Due Diligence
Materials may have been obtained from previous owners or users of the Property or third parties,
and neither City nor Seller make any representation or warranty as to the reputation or reliability
of the persons or entities preparing the Due Diligence Materials or the current accuracy of the Due
Diligence Materials. Purchaser further acknowledges that, notwithstanding the delivery of the Due
Diligence Materials, Purchaser will make its own investigation relative to the condition of the
Property and will rely on its own investigation in determining the suitability of the Property for its
use.
b. Title Insurance Commitment. Purchaser shall obtain at its sole cost and
expense a current title insurance commitment issued by Stewart Title Guaranty Company, (the
"Title Company"), including the best available copies of all recorded exceptions to title referred
to therein (collectively, the "Title Commitment") committing to insure such title to the Property in
Purchaser by the issuance of a policy of owner's title insurance with owner's extended coverage
on ALTA's most current owner's policy form in the amount of [ ] (the "Title Policy").
Purchaser shall pay the cost of the Title Policy and any extended coverage or endorsements
requested by Purchaser including any endorsement necessary to cure Objections to title raised by
Purchaser, including a Form 100.31 endorsements insuring over any oil and gas leases, and any
mineral reservations included in the Permitted Exceptions and Form 103.1 endorsements over any
mineral or ditch reservations contained in patents included in the Permitted Exceptions.
C. ALTw Surma. Purchaser shall obtain at its sole cost and expense, within
30 days of recording by City of the subdivision plat contemplated in Paragraph 4.a. of this
Agreement, a current monumented or pinned improvement survey of the Property, prepared by a
surveyor licensed in Colorado and certified to Purchaser, Purchaser's counsel, Seller, Seller's
counsel, the Title Company, and such other parties as Purchaser or Seller may reasonably request,
in compliance with applicable law and the most recent Minimum Standard Detail Requirements
for ALTA/ACSM Land Title Surveys, including items 1, 2, 3, 4, 8, 9, 10, 11 and 13 of Table A
thereto, and depicting the nearest driveway accessing the Property and any adjacent right-of-ways
(the "Survey"). The Survey shall be prepared in form satisfactory to the Title Company for the
issuance to Purchaser of the Title Policy. The Survey shall locate all improvements on the
Property, show all immediately adjacent tracts and streets, show access to public roads or ways,
show all encroachments on or from the Property, if any, and show, locate and describe all visible
or recorded easements, building lines and utilities. All recorded easements shall be identified by
the applicable recording information and all contiguous roadways shall show appropriate
dedication information, The Survey shall contain the express certification that, except as
specifically noted, there are no encroachments of lot or building lines and no obstructed easements,
and that the Property is not located in any areas designated by any governmental authority or
agency as being flood -prone or flood -risk areas pursuant to the Flood Disaster Act of 1973, as
amended.
d. Tale and Survey Ob"ectly ins. Purchaser shall review the Title Commitment
and Survey as part of its investigation of the Property. Within fifteen (15) days following receipt
of the Title Commitment and the Survey, Purchaser may submit to Seller, with copy provided to
City, a notice (the "Objection Notice") specifying any objections to matters shown in the Title
Commitment or matters disclosed by the Survey, (the "Objections"). Purchaser shall be deemed
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to have accepted any matter in the Title Commitment or the Survey to which Purchaser does not
timely object, except any monetary liens caused by or on behalf of Seller.
e. Seller's Right to Cure Objection m. If Seller receives a timely Objection
Notice in accordance with the foregoing subsection, Seller shall provide Purchaser, with copy
provided to City, notice within fifteen (15) days following receipt of any such Objection Notice,
advising Purchaser as to whether Seller will elect to cure or attempt to cure any of Purchaser's
Objections (the "Response'). The Parties agree to work together in good faith to cure any
Objections; provided, however, Seller shall have no obligation to cure any Objections, but may
elect to cure such Objections in its sole and absolute discretion, which cure may include providing
the Title Company such assurances as the Title Company reasonably requires to insure Purchaser
against any loss arising from such Objections so long as such insurance from the Title Company
is acceptable to Purchaser. If Seller elects to cure any of the Objections, but is unable to complete
the cure thereof at or before the Closing, Seller shall notify City and Purchaser of the same in
writing, and Purchaser shall have the right to (a) defer the Closing Date for a reasonable period to
the date requested by Seller to give the Parties an opportunity to cure such uncured Objections;
(b) provide the Title Company such assurances as the Title Company reasonably requires to insure
Purchaser against any loss arising from such Objections; or (c) terminate this Agreement by giving
written notice thereof to the other Parties, in which case this Agreement will be terminated, and
neither party shall have any further rights or obligations hereunder, except as otherwise provided
herein.
f. Purchaser's Right to Terminate for Title and. Survey Objections. If
Purchaser provides the Objection Notice in a timely manner and Seiler does not agree to cure all
of the Objections (other than any monetary lien or encumbrance on the Property caused by or on
behalf of Sellers, which Sellers shall be deemed obligated to cure) or fails to provide the Response
in a timely manner, Purchaser may elect to terminate this Agreement by giving notice thereof to
Seller within ten (10) days after the Response deadline, in which case this Agreement will be
terminated, and neither party shall have any further rights or obligations hereunder, except as
otherwise provided herein. If Purchaser does not elect to terminate this Agreement within such
ten (10) business day period, Purchaser shall be deemed to have waived all Objections.
g. Permitted Exception . For purposes of this Agreement, `'Permitted
Exceptions" shall mean (a) all matters shown in the Title Commitment and the Survey which have
been accepted or deemed to be accepted by Purchaser; (b) liens for taxes and other governmental
charges and assessments which are not yet due and payable and which are not delinquent; (c) liens
of carriers, warehousemen, mechanics, materialmen and repairmen caused by, through or under
Purchaser; (d) zoning, building, land use, or other regulations, ordinances or laws binding on the
Property; and (e) liens incurred caused by, through or under Purchaser in connection with
(i) workers' compensation, (ii) unemployment compensation, and (iii) other types of social
security, not yet delinquent.
h. Inspections and license to Enter. CDOT shall have the right to enter the
Property, or to have its consultants or contractors enter the Property, as of the Effective Date, for
the purposes of inspecting the physical condition of the Property and performing and tests, surveys,
studies and analyses. All inspection fees, engineering fees and other expenses of any kind incurred
by CDOT relating to the inspection of the Property will be solely CDOT's expense. CDOT shall
be responsible for and promptly repair any damage that occurs to the Property as a result of such
inspections. Seller shall cooperate with Purchaser in all reasonable respects in making such
inspections. If CDOT is not satisfied with the physical condition of the Property, CDOT may
terminate this Agreement by written notice given to Seller and City within sixty (60) days from
the Effective Date hereof.
(i) Insurance. Prior to any entry on the Property by Purchaser or its
contractors, agents or representatives; Purchaser shall cause the activities of Purchaser and its
contractors, agents or representatives on and about the Property to be covered by a policy of
commercial general liability insurance in the amount of at least Two Million Dollars ($2,000,000)
combined single limit naming Seller and any other parties reasonably requested by Seller as
additional insureds. Purchaser shall deliver to Seller a certificate evidencing the existence of the
foregoing insurance coverage prior to any entry on the Property by Purchaser or any its contractors,
agents or representatives, and Purchaser shall keep such insurance in effect until one (1) year after
the Closing Date or the date of termination of the Agreement if this Agreement is otherwise
terminated.
(i) Other than the warranty of title and the promises contained in this
Agreement, neither City nor Seller have made and hereby disclaim any warranty or representation,
express or implied, with respect to the Property or any aspect, portion or component of the
Property, including, but not limited to: (a) the condition, nature, quantity, or quality of the Property,
including, but not limited to, the quality of soils on or under the Property; (b) the fitness of the
Property for any particular use; (c) the presence or suspected presence of hazardous materials on,
in, under or about the Property; (d) the financial benefits, income, expenses, profits or losses to be
achieved, derived or incurred as a result of the ownership, operation, leasing, renovating, or
management of the Property; or (e) compliance with existing or proposed governmental laws or
regulations applicable to the Property, or the further development or changing use thereof,
including environmental laws and laws or regulations relating to zoning, land use, subdivision or
buildings, or the existence of any approvals or authorizations of any kind or nature of or from any
governmental authority.
(ii) In entering into this Contract, Purchaser has not relied on any
representation, statement, or warranty of City or Seller, other than the warranty of title and the
promises contained in this Agreement, or anyone acting for or on behalf of City or Seller, and all
matters concerning the Property have been or will be independently verified by Purchaser. If
Purchaser purchases the Property, Purchaser agrees that it shall have relied entirely on its own
investigation, examination and inspection of the Property and all matters pertaining thereto;
Purchaser is purchasing the Property "AS IS, WHERE IS" "WITH ALL ITS FAULTS" in its
condition on the Closing Date.
3. Purchase Price. The Parties acknowledge each is in receipt of consideration for the
contemplated transaction. Notwithstanding the foregoing, Seller agrees to convey the Property
to City, and City agrees to subsequently convey the Property to Purchaser, for a purchase price of
Zero Dollars ($0.00).
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4. Governmental Approvals.
a. Subdivision. The Parties acknowledge that the Property must be created as
a conveyable parcel by re -subdivision of the existing subdivision where the Property is located.
City shall cause the preparation of a subdivision application for the Property at its expense and
seek re -subdivision of the Property. The Parties acknowledge that the ALTA Survey and
Commitment cannot be provided until after recording of the subdivision plat contemplated by this
Paragraph. As such, City agrees to complete the re -subdivision and have prepared a recordable
document evidencing the creation of a conveyable parcel within sixty (60) days of the Effective
Date. If City is unable to complete the re -subdivision within sixty (60) days, City shall notify
Seller and Purchaser of the same in writing, and Purchaser shall have the right to: (a) extend such
deadline for a reasonable period to the date requested by City (such request not to be unreasonably
denied by Purchaser); or (b) terminate the Agreement by giving written notice thereof to the other
Parties, in which case this Agreement will be terminated, and neither party shall have any further
rights or obligations hereunder, except as otherwise provided herein. During the re -subdivision
process certain changes may occur, including, but not limited to, the creation of certain easements
on the lot or on any other lot to accommodate drainage requirements, landscaping, and installations
for utility services for the subdivision, and other changes necessary to comply with the Pueblo
Municipal Code which may not be foreseen at this time. Such changes shall be subject to approval
by the Purchaser, which approval shall not be unreasonably withheld. Notwithstanding anything
in this Agreement to the contrary, in the event City completes the subdivision contemplated in this
Paragraph, and the transaction contemplated by this Agreement is not fully consummated,
Purchaser shall have no further responsibility with respect to any subsequent re -subdivision of the
Property.
b. Zoning. The Parties acknowledge that re -zoning of the Property may be
required for the Purchaser's Anticipated Use. City agrees to complete such re -zoning at its expense
or, if City determines no re -zoning is required, provide Purchaser with written notification and/or
applicable permits reflecting such determination no later than sixty (60) days following receipt of
the ALTA Survev from Purchaser. If City is unable to complete the foregoing within sixty (60)
clays, City shall notify Seller and Purchaser of the same in writing, and Purchaser shall have the
right to: (a) extend such deadline for a reasonable period to the date requested by City (such request
not to be unreasonably denied by Purchaser); or (b) terminate the Agreement by giving written
notice thereof to the other Parties, in which case this Agreement will be terminated, and neither
party shall have any further rights or obligations hereunder, except as otherwise provided herein.
C. Transportation Commission Approval. The Parties acknowledge that the
Purchaser's obligation to acquire the Property is conditioned upon the approval of the
Transportation Commission of Colorado.
S. Closing. Unless Purchaser has previously terminated this Agreement in accordance
with its terms, or unless otherwise agreed upon by the Parties in writing, Purchaser shall notify
City and Seller in writing of Purchaser's election to close ("Notice to Close") no later than the
earlier to occur of: (a) thirty (30) days following receipt of the government approvals identified
in Paragraph 4 of this Agreement, or (b) one hundred twenty (120) days after the Effective Date.
Closing shall take place .within thirty (30) days of the date the Notice to Close is received by
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Seller at a time mutually agreed upon by the Parties. Unless otherwise agreed upon, the Closing
shall be held at the offices of the Title Company (as hereinafter defined). The Parties need not be
physically present at the Closing provided that executed originals of all required documents in
form sufficient to consummate the Closing have been timely delivered to Title Company so that
the Closing can occur on the date scheduled therefor.
6. Develo meat Costs. City agrees that it shall fund the following infrastructure
improvements, more particularly described in Exhibit B to this Agreement. City further agrees
to undertake the design and construction of such improvements as identified below. The final
design, capacity and layout of such improvements, as well as the schedule for construction of the
planned improvements, shall be mutually agreed upon by the Parties, acting reasonably. City's
obligation to construction the improvements contemplated by this Paragraph and depicted in
Exhibit B shall survive Closing. Any costs depicted in Exhibit B are estimates only and,
notwithstanding any other provision of this Agreement, the City shall fund the actual costs for the
infrastructure improvements in full. In the event City and CDOT are unable to agree upon a
construction schedule acceptable to CDOT subsequent to Closing, CDOT shall have the right to
terminate the transaction and convey the Property to Seller as provided for in Paragraph 8.
a. Utility Service Improvements. City will design and construct extensions of
potable water and sanitary sewer service to the Property as necessary to enable the Purchaser's
Anticipated Use.
b. Re wired Paving. Outlook Boulevard is considered a minor arterial in
City's roadway network. To enable the Anticipated Use, City will design and construct an
extension of Outlook Boulevard, anticipated to be approximately 750 feet in length, and improve
the facility to a 5 -lane, 60 -foot cross-section. 6 -foot wide sidewalks will also be installed on the
east side of the newly constructed segment of Outlook Boulevard.
C. Storm Water Improvements. City will construct storm sewer lines and
inlets necessary as part of the improvements to Outlook Boulevard. Purchaser will be required to
construct a detention facility and water quality facilities on the Property at Purchaser's expense,
which improvements will be permitted to outlet to the public roadway storm water facilities.
7. Purchaser Financing. The Parties acknowledge that Purchaser may elect to finance
all or a portion of the planned construction of improvements on the Property. The Parties agree to
provide any information reasonably requested by CDOT concerning the transaction to assist
CDOT in pursuing such financing.
8. Reverter. The Parties acknowledge that certain rights and obligations under this
Agreement shall survive Closing or are not anticipated to occur prior to Closing. In the event
either City or CDOT are unable (despite the best efforts of all Parties acting reasonably) to fund
their respective post -Closing obligations related to the proposed transaction, either City or CDOT
may notify the other Parties in writing of its intent to terminate further prosecution of the
transaction. In the event of such circumstance, City and CDOT agree to work together in good
faith to return the Property to Seller in the same condition as of the date of Closing; provided,
however, that Purchaser shall, be under no obligation to re -subdivide or re -zone the Property for
Seller. Neither City nor CDOT shall not have any right to terminate the transaction under this
Paragraph following the commencement of either: (a) planned construction by CDOT on the
Property, or (b) construction of the public improvements to be funded by City pursuant to
Paragraph 6 of this Agreement.
9. Seller's Affirmative Co enan Seller hereby covenants and agrees as follows:
a. Seller's Co Aeration. Seller agrees to cooperate with Purchaser with
respect to the Property, including, without limitation, participating in and supporting Purchaser in
any and all proceedings related to any zoning, subdivision and planning for the Property,
cooperating with Purchaser in obtaining permits, agreements, approvals and authorizations
deemed necessary by Purchaser for its intended use and development of the Property, attending
public hearings or other meetings for or with governmental agencies or neighborhood groups, and,
if required by the applicable governmental entity, consenting to and/or executing any such permits,
agreements, approvals and authorizations.
b. New Encumbrances A gain ~t the Proper Commencing on the Effective
Date and for so long as this Agreement remains in existence, Seller shall not cause or permit any
mortgage, deed of trust, lien, encumbrance, covenant, condition, restriction, assessment, easement,
right-of-way, obligation, encroachment or liability whatsoever, to be placed of record or otherwise
affect the Property or the title insurance required to be given to Purchaser pursuant to this
Agreement, except as same may be requested or required by Purchaser as part of the re -subdivision
and re -zoning processes contemplated in Paragraphs 4.a. and 4.b. of this Agreement.
C. Existing Encumbrances A minst the Property. If the Property or any portion
thereof is currently subject to a deed of trust, then, for so long as this Agreement remains in
existence, Seller agrees to promptly pay the indebtedness secured by such deed of trust and to
promptly perform all of the other obligations of Seller related to such indebtedness. Seller agrees
to indemnify and hold City and Purchaser harmless from any liability, loss, costs, damage or
expense incurred as a result of a default by Seller in payment or performance of its obligations
under such indebtedness. Seller shall deliver to City and Purchaser, immediately upon receipt
thereof any notices of defaults received from the holder of such indebtedness. Prior to Closing,
Seller shall use its best efforts to cause the holder or holders of such indebtedness to execute and
deliver to City a Recognition Agreement in a form acceptable to City in its sole discretion.
d. Natural Amenities. Seller acknowledges that the natural amenities of the
Property constitute a material inducement to Purchaser to enter into this Agreement and, therefore,
Seller agrees to maintain the Property and the amenities and soil in their current condition. In
furtherance thereof, Seller agrees to not permit or cause any development activity of any kind on
the Property (except as may be specifically required under this Agreement or permitted pursuant
to the Permitted Exceptions) prior to Closing, including, but not limited to, cutting, clearing,
excavating, filling, dumping, or disposing of any materials.
e. Leases. Seller covenants for the benefit of and agrees with Purchaser that,
pending Closing, Seller shall (i) deliver the Property free and clear of all options, leases and
tenancies, and (ii) not enter into any new leases for all or any part of the Property unless approved
by Purchaser.
f_ Operation of the Property. Until the earlier of the Closing or the termination
of this Agreement, Seller undertakes and agrees as follows:
(i) To pay (or caused to be paid), prior to delinquency, all real property
and personal property taxes which become due and payable with respect to the Property.
(ii) Not to do anything, nor permit anything to be done, which would
impair or modify the status of title as shown on the Title Commitment or the Survey.
(iii) To operate and maintain the Property in the same manner as
heretofore operated and maintained and operate and maintain the Property in a professional
manner, reasonable wear and tear excepted and damage by fire or other casualty excepted.
(iv) Not to permit any transfer of any of Seller's interest in the Property,
or permit any encumbrance of same by any obligations.
(v) To terminate any contracts, agreements or commitments, oral or
written, that affect all or any part of the Property that Purchaser requests Seller to terminate. Seller
shall deliver copies of all notices of termination given by Seller hereunder to Purchaser
g. Advise Purchaser. Until the earlier of the Closing or the termination of this
Agreement, Seller and City agree to notify the Purchaser promptly upon learning or receiving
notice, whichever first occurs, of:
(i) Any event, transaction, occurrence or agreement entered into by
Seller prior to Closing, which would or might materially affect the Property, or any part thereof
after Closing.
(ii) Any fact or event which would make any of the representations or
warranties of Seller or City contained in this Agreement untrue or misleading in any material
respect.
(iii) Any violation of any law, ordinance, regulation or law which would
or might materially affect the Property or any portion thereof.
(iv) Any pending or threatened litigation which affects the Property or
any part thereof or which would affect the transaction contemplated hereby.
(v) Any damage or destruction (excluding normal wear and tear) to the
Property or any part thereof
(vi) Any pending or threatened proceedings in bankruptcy or insolvency
which would affect the Property or any person or entity owning any interest therein.
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16. Re resentations and Warranties of Seller. Seller hereby represents and warrants to
the Purchaser that:
a. Title. Seller has good, indefeasible and marketable title to the Property, and
City is the sole contract purchaser of the Property.
b. No Liens. As of the Closing: (i) there will be no mechanics' or
materialmen's liens of record against the Property, and (ii) there are no unsatisfied charges, debts,
liabilities, claims or obligations arising from the construction, ownership, maintenance or
operation of or otherwise relating to the Property, which could give rise to any mechanic's or
materialmen's or constitutional, statutory or common law lien against the Property, or any part
thereof, except as may be caused by City or Purchaser.
C. Deed Restrictions. To the best of Seller's knowledge, there are no deed
restrictions affecting the Property prohibiting the Purchaser's Anticipated Use. The Seller makes
no representations as to the current zoning of the Property.
d. Qrganization and -Existence: Authority. Seller is a Limited Partnership,
duly organized, existing and in good standing under the laws of the State of New Mexico, and is
authorized to do business in Colorado. The persons signing below on behalf of Seller represent
that they are duly authorized to execute this Agreement and to bind Seller. Seller has the full right,
capacity, and authority to enter into this Agreement and no third party approval or consent is
required to enter into this Agreement or to consummate the transaction contemplated hereby. This
Agreement and all documents required hereby to be executed by Seiler are and shall be valid,
legally binding obligations of and enforceable against Seller in accordance with their terms. All
requisite corporate or other entity action has been taken by Seller in connection with entering into
this Agreement, the instruments referenced herein, and the consummation of the transaction
contemplated hereby.
C. Bankruptcy. Seller has not filed for bankruptcy relief within the last year
under the laws of the United States Bankruptcy Code nor has any petition for bankruptcy or
receivership been filed against the Seller within the last year. There exist no pending or threatened
bankruptcy, insolvency, or similar proceedings affecting the Property.
f. Condemnation. There is no pending or threatened condemnation or similar
proceeding affecting the Property or any portion thereof, nor, to Seller's knowledge, is any such
proceeding contemplated.
g. Special "1axinu District. To the best of Seller's knowledge, the Property is
not located within the boundaries of a special taxing district, except as may be reflected in the
Commitment, nor has any application been made or submitted for the creation of (or annexation
of the Property into) a special taxing district or other quasi -governmental entity. Furthermore,
Seller has not received any notice, either oral or written, and has no knowledge that any
governmental or quasi -governmental entity intends to impose any special or other assessment
against the Property or any part thereof.
h. Compliance with Laws and 'tither Obligations. To the best of Seller's
knowledge, except as otherwise provided in this Agreement, there are no contemplated (i) changes
in any laws, ordinances, or regulations applicable to the Property, (ii) actions, suits or other legal
or administrative proceedings currently affecting the Property, (iii) judicial or administrative
action concerning the Property, or (iv) action by adjacent landowners concerning the Property.
Seller has complied. and will continue to comply until Closing, in all material respects with all
applicable laws, ordinances, regulations, statutes, rules, restrictions, covenants and conditions
(including any of same contained in any development or other governmental agreements, permits,
entitlements or licenses) pertaining to or otherwise affecting the Property. For certainty, Seller
shall not be required to incur any cost or expense as a result of its compliance with any conditions
required as a result of the re -subdivision and re -zoning processes contemplated in Paragraphs 4.a.
and 4.b. of this Agreement, which costs and expenses shall be borne by City. Performance of this
Agreement will not result in any breach of, or constitute any default under any agreement or other
document to which Seller is a party or by which Seller or the Property might be bound, nor will
such performance result in the imposition of any lien or encumbrance on the Property under such
agreements or other documents.
i. Hazardous Materials. Seller has not performed (and has no knowledge of
the performance by anyone else of) any dumping, excavation or burial of any Hazardous Materials
on or in the immediate vicinity of the Property. To Seller's best knowledge, information and belief,
there are no Hazardous Materials, as hereinafter defined, on, under, from or affecting the Property
that would subject Purchaser to any liability under either Federal or State laws. Without limiting
the generality of the foregoing, to Seller's best knowledge information and belief (1) the Property
is not now and has never been used to generate, manufacture, refine, transport, treat, store, handle,
dispose of, transfer, produce, process or in any manner deal with Hazardous Materials; (2) no
present or prior owner of the Property or present or prior tenant, subtenant or occupant has received
any notice or advice from any governmental agency or from any other such present or prior owner,
tenant, subtenant or occupant of the Property concerning any Hazardous Materials on, under, from
or affecting the Property. The term "Hazardous Materials" as used herein includes, without
limitation, radon or other radioactive materials, gasoline, petroleum products, explosives,
radioactive materials, hazardous materials, hazardous wastes, hazardous or toxic substances,
polychlorinated biphenyls or related or similar materials, asbestos or any material containing
asbestos, or any other substance or material as may be defined as a hazardous or toxic substance
by any Federal, state or local environmental law, ordinance, rule, or regulation including, without
limitation, the Comprehensive Environmental Response, Compensation. and Liability Act of 1980,
as amended (42 U.S.C. Section 9601, et seq.), the Hazardous Materials Transportation Act, as
amended (42 U.S.C. Section 1801, et seq.) the Resource Conservation and Recovery Act, as
amended (42 U.S.C. Section 1251, et seq.), the Clean Air Act, as amended (42 U.S.C. Section
7401, et seg.) and in the regulations adopted and publications promulgated pursuant thereto.
j. Leases and Contracts. There are no leases, oral or written, affecting the
Property or any part thereof, nor are there any other rights in or to the Property granted to any other
individual or entity other than those listed in the Permitted Exceptions. Seller covenants to deliver
possession of the Property to City at Closing free of all tenancies, occupancies and other rights,
titles or interests. Seller has not entered into any other contractual obligations with respect to the
Property, including but not limited to, oral or written service, maintenance, landscaping, security,
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management or other similar contracts which pertain to the operation or maintenance of the
Property.
k. Foreign Person. Seller is not a "foreign person" as that term is used in
Section 1445(b)(2) of the Internal Revenue Code of 1986, as amended and the related regulation.
Seller agrees to execute a certificate indicating that Seller is not a foreign person on the Closing
Date.
1. Mineral Interests. Seller and/or its predecessor(s) in interest, have, or prior
to Closing will have, taken any actions necessary to fully comply with the requirements of the
Colorado Revised Statutes concerning notifications regarding severed mineral rights with respect
to the Property.
Each of the warranties and representations contained in this paragraph and
elsewhere in this Agreement shall be deemed made as of the Effective Date by Seller. All such
representations and warranties shall be continuing and true and correct on and as of Closing with
the same force and effect as if made at that time, subject to the provisions regarding updates to
such representations and warranties set forth below, and all of such representations and warranties
shall survive Closing. Seller may from time to time update its representations and warranties to
take into account any changes in the content of such representations and warranties between the
date of this Agreement and the Closing date. If any such change creates a condition that materially
and adversely affects the Property or Purchaser's Anticipated Use thereof, the Purchaser shall be
entitled to exercise the remedies set forth in Paragraph 16 hereof.
11. I epresentati,ons and Warranties ofCity. City hereby represents and warrants to the
Purchaser that:
a. Authority. City is a Colorado home rule municipal corporation. The
persons signing below on behalf of City represent that they are duly authorized to execute this
Agreement and to bind City. This Agreement and all documents required hereby to be executed
by City are and shall be valid, legally binding obligations of and enforceable against City in
accordance with their terms. All requisite corporate or other entity action has been taken by City
in connection with entering into this Agreement, the instruments referenced herein, and the
consummation of the transaction contemplated hereby.
b. Corn Banc. with haws and Other Obl" xations. To the best of City's
knowledge, except as otherwise provided in this Agreement, there are no contemplated (i) changes
in any laws, ordinances, or regulations applicable to the Property, (ii) actions, suits or other legal
or administrative proceedings currently affecting the Property, (iii) judicial or administrative
action concerning the Property, or (iv) action by adjacent landowners concerning the Property.
Perfonuance of this Agreement will not result in any breach of, or constitute any default under any
agreement or other document to which City is a party or by which City or the Property might be
bound, nor will such performance result in the imposition of any lien or encumbrance on the
Property under such agreements or other documents.
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Each of the warranties and representations contained in this paragraph and elsewhere in
this Agreement shall be deemed made as of the Effective Date by City. All such representations
and warranties shall be continuing and true and correct on and as of Closing with the same force
and effect as if made at that time, subject to the provisions regarding updates to such
representations and warranties set forth below, and all of such representations and warranties shall
survive Closing. City may from time to time update its representations and warranties to take into
account any changes in the content of such representations and warranties between the date of this
Agreement and the Closing date. if any such change creates a condition that materially and
adversely affects the Property or Purchaser's Anticipated Use thereof, the Purchaser shall be
entitled to exercise the remedies set forth in Paragraph 16 hereof.
12. Dbli ration to Close.
a. Conditions. Purchaser shall not be obligated to close hereunder unless each
of the following conditions shall exist on the Closing Date (as may be extended pursuant to this
Agreement):
(i) Title l�ol.icv. The Title Company shall be prepared to issue (or
prepared to unconditionally commit to issue) the Title Policy described in this Agreement.
(ii) Accuracy of Representations. The representations and warranties
made by City and Seller in this Agreement shall be true and correct on and as of the Closing Date
with the same force and effect as though such representations and warranties had been made on
and as of the Closing Date, and each will so certify.
(iii) Performance. City and Seller shall each have performed all
covenants and obligations and complied with all conditions required by this Agreement to be
performed or complied with on or before the Closing Date.
(iv) Conveyable Parcels.. Each and every act and requirement necessary
for the unrestricted conveyance of the Property from Seller to Purchaser shall have been performed
and completed and, where applicable, accepted by the appropriate entity.
b. Failure of Conditions. if any condition specified in this Paragraph is not
satisfied on or before Closing, Purchaser may, at its option, waive such condition (either at the
time originally established for Closing, or at any time thereafter as extended pursuant to this
Agreement), or terminate this Agreement by written notice thereof to the other Parties.
13. Clos[ng Procedures, Closing shall occur in accordance with the procedures set forth
below.
a. Coraweya At Closing, Seller shall convey good, marketable, and
insurable fee simple title to the Property to City by special warranty deed (the "Seller Deed"), free
and clear of all liens and encumbrances and subject only to the Permitted Exceptions. At Closing,
City will subsequently transfer the Property to the Purchaser, also by special warranty deed (the
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"Cited''), free and clear of all liens and encumbrances and subject only to the Permitted
Exceptions.
b. Costs of Sale.
(i) Title Insurance. The title insurance policy required hereunder shall
be issued by the Title Company promptly after the Closing Date. The premium for such title
insurance policy shall be paid by Purchaser at Closing, including the cost for any title endorsements
elected to cure a title Objection.
(ii) Documentary,Pee. Recording Costs. The Parties shall execute and
deliver to the Title Company real property transfer declarations. The cost of the documentary
transfer fee and the costs of recording the Deed shall be borne by Purchaser.
(iii) Deal Estate Taxes. Real estate taxes and assessments for the
Property for the year of Closing shall be prorated at and as of Closing. If such taxes or assessments
are not known for such year, the most recent available year shall be used to calculate the prorated
portions and Purchaser and Seller shall re -prorate once such taxes or assessments become known.
Seller shall be and remain responsible for payment of all real estate taxes and assessments, special
or otherwise, regardless of when they are payable, that have accrued or been assessed during or
prior to the period of Seller's ownership of the Property, including any transfer taxes.
(iv) Clasin r Costs. Any other costs of closing not expressly addressed
hereunder shall be paid for by Purchaser and not Seller.
C. Seller'' Closinp Documents, On the Closing Date, Seller shall deliver the
following items:
(i) The Seller Deed duly executed in form for recordation
(ii) An assignment in form and substance reasonably acceptable to
Purchaser, assigning to Purchaser all of Seller's right, title and interest in and to the Reports, the
Contracts and Permits, and the Intangible Property, if applicable.
(iii) The originals of any Reports, and Contracts and Permits, if
applicable.
(iv) An affidavit running to the benefit of Purchaser and the Title
Company in form and substance acceptable to the Title Company and sufficient for the Title
Company to issue a creditors rights endorsement and to eliminate the so-called "standard printed
exceptions" from the title insurance policy required to be delivered to Purchaser hereunder.
(v) The affidavit or other evidence required under the "foreign person"
provisions of Section 1445 of the Internal Revenue Code of 1986, as amended, and the
corresponding withholding requirements of Section 39-22-604.5, C.R.S..
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(vi) Such further documents as may reasonably be required to
consummate the transaction contemplated hereby and to enable the Title Company to insure title
to the Property in accordance with the terms of this Agreement.
d. City'§ QgLsing Documents. On the Closing Date, City shall deliver the
following items:
The City Deed duly executed in form for recordation.
(ii) Such further documents as may reasonably be required to
consummate the transaction contemplated hereby and to enable the Title Company to insure title
to the Property in accordance with the terms of this Agreement.
14. Purchaser's Default: Remedies.
a. Default by Purchaser. Notwithstanding anything to the contrary contained
in this Agreement, Purchaser shall not be in breach or default hereunder unless such breach or
default is of a material obligation of Purchaser under this Agreement and, within twenty (20) days
after Purchaser's receipt of notice from either City or Seller detailing the nature of such breach or
default, Purchaser fails to cure same. A copy of such written notice shall also be provided to the
other non -defaulting Party.
b. Remedies of City. "elle . Upon the occurrence of a breach or default by
Purchaser not cured within the applicable cure period, the sole and exclusive remedy of City or
Seller shall be to terminate this Agreement and obtain a reversion of title to the Property to Seller
in the event that title has been transferred by Seller to City. It is acknowledged that Purchaser shall
have no liability of any kind or nature hereunder. City and Seller expressly waive any other remedy
at law or in equity against Purchaser, including, without limitation, specific performance and
damages.
15. City's Default: Remedies.
a. Default by City. Notwithstanding anything to the contrary contained in this
Agreement, City shall not be in breach or default hereunder unless such breach or default is of a
material obligation of City under this Agreement and, within twenty (20) days after City's receipt
of notice from either the Seller or Purchaser detailing the nature of such breach or default, City
fails to cure same. A copy of such written notice shall also be provided to the other non -defaulting
Party.
b. Reredies of Purchaser, Seller. Upon the occurrence of a breach or default
by City not cured within any applicable cure period, Purchaser's remedy shall be limited to
specific performance, but not damages, and in addition, Purchaser may: (i) terminate this
Agreement; (ii) remedy or cure the breach or default itself at its own expense; (iii) extend the
scheduled Closing Date for a reasonable period of time without payment to City or Seller of any
additional fees or costs of any nature or kind whatsoever, until such time as City has remedied or
cured the applicable breach or default and Purchaser elects to acquire the Property; or (iv) waive
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any breach or default by City and schedule a Closing Date as specified in this Agreement. The
sole and exclusive remedy of the Seller for any breach or default hereunder by City shall be to
terminate this Agreement and obtain a reversion of title to the Property to Seller in the event that
title has been transferred by Seller to City; provided, however, that Seller shall not be entitled to
terminate this Agreement if Purchaser has exercised its rights under (ii), (iii) or (iv) of this
subparagraph and notified the Seller of the same within City's permissible cure period.
16. Seller's Default: Remedies.
a. Default by Seller. Seller shall be in default hereunder if. (i) any
representation or warranty made by Seller herein is or becomes false and creates a condition that
materially and adversely affects the Property or Purchaser's Anticipated Use thereof unless the
occurrence of the condition was not within the reasonable control of Seller; or (ii) any update of
the Commitment delivered to Purchaser pursuant to the provisions of this Agreement contains any
title exceptions caused by Seller which are not Permitted Exceptions and Purchaser has not
approved or otherwise consented to all of such additional title exceptions as provided in this
Agreement; or (iii) any covenant or obligation made or undertaken by Seller hereunder is not
performed in the time specified for such performance or Seller otherwise breaches any provision
of this Agreement. Seller shall have twenty (20) days after receipt of written notice from either
City or Purchaser of any such default within which to cure same; provided, however, that such
cure period shall not apply to any refusal by Seller to convey the Property to City at the time
required herein and otherwise in accordance with the terms and provisions hereof. A copy of such
written notice shall also be provided to the other non -defaulting Party. If any cure period allowed
above extends beyond the scheduled Closing Date, the Closing shall automatically be extended to
that date which is the first day after expiration of such cure period.
b. Remedies of City. Purchaser. Upon the occurrence of a breach or default
by Seller not cured within any applicable cure period, Purchaser's remedy shall be limited to
specific performance, but not damages, and in addition, Purchaser may: (i) terminate this
Agreement; (ii) remedy or cure the breach or default itself at its own expense; (iii) extend the
scheduled Closing Date for a reasonable period of time without payment to City or Seller of any
additional fees or costs of any nature or kind whatsoever, until such time as Seller has remedied
or cured the applicable breach or default and Purchaser elects to acquire the Property; or (iv) waive
any breach or default by Seller and schedule a Closing Date as specified in this Agreement. The
sole and exclusive remedy of City for any breach or default hereunder by the Seller shall be to
terminate this Agreement; provided, however, that Seller shall not be entitled to terminate this
Agreement if Purchaser has exercised its rights under (ii), (iii) or (iv) of this subparagraph and
notified City of the same within Seller's permissible cure period.
17. Notices. All notices, demands, requests or other communications to be sent by one
Party to any other hereunder or required by law shall be in writing and shall be deemed to have
been validly given or served by hand delivery or personal delivery of the same to the intended
addressee, or by depositing the same in the United States mail, postage prepaid, registered or
certified mail, addressed to the intended addressee at its address set forth below or at such other
address as may be designated by such Party as herein provided. All notices, demands and requests
shall for the purposes of this Agreement, be deemed received upon such personal delivery, or two
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(2) business days after being deposited in the United States mail as required above. By giving to
the other Party(ies) hereto at least fifteen (15) days prior written notice in accordance with the
provisions hereof, the Parties hereto shall have the right from time to time to change their
respective addresses and each shall have the right to specify as its address any other address within
the United States of America. The initial addresses for the parties hereto shall be:
If to Seller: WL Enterprises, LTD
P.O. Box 11677
Pueblo, Colorado 81001
With Copy to: Wm. David Lytle
Altman, Keilbach, Lytle, Parlapiano & Ware, P.C.
229 Colorado Ave.
Pueblo, CO 81004
If to City: City Manager
City of Pueblo
1 City Hall Place, 2"d Floor
Pueblo, Colorado 81003
With Copy to: City Attorney
City of Pueblo
I City Hall Place, P Floor
Pueblo, Colorado 81003
If to CDOT: Colorado Department of Transportation
Attn: David Fox
15285 South Golden Road, Bldg. 47
Golden, Colorado 80401
With Copy to: Colorado Attorney General's Office
Attn: Kathryn E. Young, Esq.
1300 Broadway, 1001 Floor
Denver, Colorado 80203
If to Title Company: Stewart Title Guaranty Company
Attn: [ 1
1307 Fortino Blvd., Unit C
Pueblo, Colorado 81008
18. Broker's Commissions. Each Party hereby warrants and represents to the other
Parties that no real estate broker other than CBRB, Inc., represented by Brad T. Bird and operating
as the Purchaser's Broker was involved in the transaction contemplated by this Agreement. The
Broker's Commission will be paid by the Purchaser, subject to a separate written agreement
between Purchaser and Purchaser's Broker. Seller shall indemnify City and State against any
IV
claim of any broker claiming by, through or under Seller or by anyone else not a party to this
Agreement. The foregoing warranties and representations shall survive the Closing.
19. Title Cgmnany as Escrow A gent.
a. The Parties acknowledge that Title Company is acting solely as a
stakeholder at their request and for their convenience, that Title Company shall not be deemed to
be the agent of any of the Parties hereto, and that Title Company shall not be liable to any of the
Parties for any action or omission on its part taken or made in good faith and not in disregard of
this Agreement, but shall be liable for its negligent acts and for any loss, cost or expense incurred
by Seller, City, or Purchaser resulting from Title Company's mistake of law respecting Title
Company's scope or the nature of its duties.
b. Upon delivery of an executed copy of this Agreement to Title Company,
this Agreement, any additional instructions hereafter delivered to Title Company jointly by Seller,
City, and Purchaser, and together with any supplemental instructions delivered to Title Company
by either Seller, City or Purchaser to the extent that such supplemental instructions do not conflict
with or amend any provision contained in this Agreement to the detriment of any other Party, shall
constitute the sole instructions to Title Company regarding the transaction contemplated hereby.
C. Title Company hereby accepts the designation of "reporting person" (the
"Re ortin , Person") within the meaning of Section 6045 (e)(2)(A) of the Internal Revenue Code
of 1986, as amended and the regulations promulgated thereunder (the "Reporting, Re uiremenis")
and agrees to perform all duties that are required to be performed by the Reporting Person under
the Reporting Requirements. In furtherance of its obligations as the Reporting Person, Title
Company hereby requests that Seller furnish to Title Company Seller's correct taxpayer
identification number. Seller acknowledges that any failure by Seller to provide Title Company
with Seller's correct taxpayer identification number may subject Seller to civil or criminal
penalties imposed by law. Title Company agrees to indemnify and hold Seller, City, and
Purchaser, and their respective agents harmless from and against any claims, costs, liabilities,
penalties, or expenses resulting from Title Company's failure to perform its duties as the Reporting
Person under the Reporting Requirements. This paragraph shall survive any termination of this
Agreement and the Closing.
20. Confidential it . The Parties each agree that they will hold in strict confidence all
documents and information concerning the other Parties and the proposed transaction
contemplated by this Agreement. No Party shall issue any press releases or otherwise make any
public statements with respect to this Agreement without the prior written consent of each other
Party. If the proposed transaction contemplated hereby should not be consummated, such
confidence will be maintained, and all documents and information in written form will be returned
to the Party originally furnishing the same. However, the foregoing provisions shall not be
construed to prohibit the Parties from disclosing to appropriate governmental authorities or to its
consultants such terms of the proposed transaction as are necessary to obtain governmental
approvals, to complete CDQT's proposed financing, or as may be necessary to comply with law.
21. Cam. The captions in this Agreement 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.
22. Entire A reemgnt. Except as specifically set forth in this Agreement, this
Agreement, including the exhibits attached hereto, contains the entire agreement between the
Parties concerning the transaction contemplated hereby and all other representations, negotiations
and agreements, written and oral, including any letters of intent which pre -date the Effective Date,
with respect to such transaction, are superseded by this Agreement and are of no force and effect.
23. Binding ture� Amendmentg. This Agreement and the rights and obligations
hereunder shall be binding upon and inure to the benefit of the Parties hereto, their heirs,
successors, administrators and assigns, subject to the provisions and limitations on assignment set
forth herein. This Agreement may only be amended, revised, waived, discharged, released or
terminated o by a written instrument executed by the Party against which enforcement of the
amendment, revision, waiver, discharge, release or termination is asserted.
24. Assignment,. No Party shall be entitled to assign this Agreement, or any of its rights
or obligations hereunder, to any person or entity without the prior written approval of the other
Parties.
25. Survival. Notwithstanding any presumption to the contrary, and regardless of
whether this Agreement specifically provides for survival, to the extent required for their proper
effect, all obligations, covenants, conditions, representations, warranties and agreements of the
Parties contained in this Agreement shall survive Closing and any other termination of this
Agreement.
26. Construction ofAgreement: V lidit Each ofthe Parties hereto acknowledges that
it and/or its counsel have participated substantially in the drafting of this Agreement and agree
that, accordingly, in the interpretation and construction of this Agreement, no ambiguity, real or
apparent, in any provision hereof shall be construed against a Party hereto by reason of the role of
such Party or its counsel in the drafting of such provision. 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. A determination that any provision of this Agreement is illegal, unenforceable
or invalid shall not affect the enforceability or validity of any other provision of this Agreement,
and any determination that the application of any provision of this Agreement to any person or
circumstance is unenforceable or invalid shall not affect the enforceability or validity of such
provision as it may apply to any other persons or circumstances.
27. Cou�rt5. This Agreement may be executed in any number of counterparts and
shall be deemed to be effective upon delivery of all of such counterparts. Each counterpart of this
Agreement shall be deemed an original and all such counterparts shall be taken to be one and the
same instrument, for the same effect as if all parties hereto had signed the same signature page.
Any signature page of this Agreement may be detached from any counterpart of this Agreement
without impairing the legal effect of any signatures thereon and may be attached to another
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counterpart of this Agreement identical in form hereto but having attached to it one or more
additional signature pages.
28. Time. Time is of the essence of this Agreement. The term "days" when used herein
shall mean calendar days. If any time period ends on a Saturday, Sunday or officially recognized
state holiday, the applicable period of time shall be deemed to end on the next succeeding business
day.
29. Attorney's bees. Should any Party hereto institute an action or proceeding to
enforce any provision of this Agreement or for damages by reason of an alleged breach of any
provision hereof, each Party shall be responsible for its own costs and expenses (including
attorneys' fees) incurred in connection with such action or proceeding and the enforcement of any
judgment or settlement obtained in such action or proceeding.
30. Waiver of Breach. The failure of any Party hereto to enforce any provision of this
Agreement shall not be construed to be a waiver of the obligations contained in such provision or
any other provision, nor shall any such failure in any way to affect the validity of all or any part
of this Agreement or the right of such Party thereafter to enforce each and every provision hereof.
No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or
subsequent breach.
31. Third_1'artics. Seller, City and Purchaser are the only parties to this Agreement and
are the only Parties entitled to enforce this Agreement. Nothing contained in this Agreement 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.
32. Required State Provisions.
a. Controller's Approval -,"ection 24-30-202(l), C.R.S. This Agreement shall
not be valid until it has been approved by the Colorado State Controller or designee.
b. Fund Availability -,Section 24--30-202(5.5), C.R.S. Financial obligations of
the State payable after the current fiscal year are contingent upon funds for that purpose being
appropriated, budgeted, and otherwise made available.
C. Tran§pgrt@Ltion Commission Approval. CDOT's obligation to acquire the
Property is conditioned upon the Transportation Commission's approval of the financing that will
be used to construct the improvements on the Property for the Anticipated Use.
d. Governmental Immunity. No term or condition of this Agreement shall be
construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits,
protections, or other provisions, of the Colorado Governmental Immunity Act, Section 24-10-101
et seq., C.R.S. or the Federal Tort Claims Act, 28 U.S.C. Sections 1346(b) and 2671 et seq., as
applicable now or hereafter amended. This paragraph shall survive any termination of this
Agreement and the Closing.
M,
C. Compliance With Law. Seller and City shall strictly comply with all
applicable federal and State laws, rules, and regulations in effect or hereafter established,
including, without limitation, laws applicable to discrimination and unfair employment practices.
f. Choice of Law. Colorado law, and rules and regulations issued pursuant
thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any
provision included or incorporated herein by reference which conflicts with said laws, rules and
regulations shall be null and void. Any provision incorporated herein by reference which purports
to negate this or any other provision in this paragraph in whole or in part shall not be valid or
enforceable or available in any action at law, whether by way of complaint, defense, or otherwise.
Any provision rendered null and void by the operation of this provision shall not invalidate the
remainder of this Agreement, to the extent capable of execution. This paragraph shall survive any
termination of this Agreement and the Closing.
g. Em to ce Financial Interest,.Conflict of Interest, Sections 24-1-201 and
24-0-502. C.R.S., The signatories aver that to their knowledge, no employee of the State has any
personal or beneficial interest whatsoever in the service or property described in this Agreement.
Seller or City have no interest and shall not acquire any interest, direct or indirect, that would
conflict in any manner or degree with the performance of Seller's or City's services, and neither
Seller nor City shall employ any person having such known interests. This paragraph shall survive
any termination of this Agreement and the Closing.
h. Vendor Offset, Sections24-30-202 l and 24-30!202.4,_C.R.S. Subject to
Section 24-30-202.4(3.5), C.R.'S., the State Controller may withhold payment under the State's
vendor offset intercept system for debts owed to State agencies for: (a) unpaid child support debts
or child support arrearages; (b) unpaid balances of tax, accrued interest, or other charges specified
in Section 39-21-101, el seq., C.R.S.; (c) unpaid loans due to the Student Loan Division of the
Department of Higher Education; (d) amounts required to be paid to the Unemployment
Compensation Fund; and (e) other unpaid debts owing to the State as a result of final agency
determination or judicial action.
(Remainder of Page Left Intentionally Blank. Signature Pages Follomj
9
IN WI'T'NESS WHEREOF, the Parties hereto have executed this Agreement effective as
of the Effective Date.
SELLER:
WL ENTERPRISES, LTD.,
a New Mexico Limited Partnership
By:
Nan
Titl(
Date:
[Signature Wage 1 of 4 to Purchase and Sale Agreement.]
M,
CITY:
CITY OF PUEBLO,
A Colorado m " " atio
By: Ste"deli
President of the City Council
Date: 0J. X H I-"' w
ATTEST: �"e 0,40
Ar
w
By:'Joina Dutcher
City Clerk
2.0t 6
APPROVED AS TO FORM:
By: Daniel C. Kogovsek
City Attorney
Date: 1 0 • A 0 -
[Signature
[S gnature Page 2 of 4 to Pitt -chase and Sale Agreement.]
91
PURCHASER:
STATE OF COLORADO
John W. Hickenlooper, Governor
COLORADO DEPARTMENT OF TRANSPORTATION
Shailen, I Bhatt, Executive Director
01
By: Joshua Laipp;
4Chief Engine r
Date:
STATE OF COLORADO
John W. Hickenlooper, Governor
DEPARTMENT OF PERSONNEL & ADMINISTRATION
Office of the State Architect, Real Estate Programs
By: Brandon Ates
Manager of Real Estate Programs
Date:
APPROVED:
Cynthia H. Coffinan, Attorney General
M
Date:
Assistant Attorney General
[Signature Page 3 of 4 to Purchase and Sale Agreement.]
M
PURCHASER:
STATE OF COLORADO
John W. Hickenlooper, Governor
COLORADO DEPARTMENT OF TRANSPORTATION
Shailen P. Bhatt, Executive Director
By: Joshua Laipply, P.E.
Chief Engineer
Date:
STATE OF COLORADO
John W. Hickenlooper, Governor
DEPARTMENT OF PERSONNEL & ADMINISTRATION
Office of the State Architect, Real Estate Programs
Brandon Ates
Manager of Real Estate Programs
Date:
APPROVED:
Cynthia H. Coffman, Attorney General
By:.ti
Assistant Attorney General
Date:,
[Signature Page 3 of 4 to Purchase and Sale Agreement.]
IN
Section 24-30-202, C.R.S. requires the State Controller to approve all State Agreements.
This Agreement is not valid until signed and dated below by the State Controller or his delegee.
STATE CONTROLLER
Robert Jaros, CPA, MBA, JD
Date: -,M ...... �2 7��Jw-..-��
[Signature Page 4 of 4 to Purchase and Sale Agreement.]
W
EXHIBIT A
(Legal Description and Map of the Property)
[TBD]
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St BDI114 BION IMI EtM AGREE14ENT
EXHIUF "d"'
SUBDIVISION NAME: WL ENTERPRISES
]N 1400704
DEVELOPER: WL ENIERPRISES, CDOT, CITY OF PUEBLO
ENGINEER: NORTHSTAR ENGINEERING AND SURVEYING, INC.
6" Asphalt over 7" Base Course
14400 SY
0
$75.00 /SY =
$3601000
Qirb and Gutter
3550 LF
th
$12.00 /LF -
$42,600
ADA Ramp
1280 SF
0
$4.00 /SF =
$5,120
Square Pan Radius
750 SF
0
$5.00 /SF =
$3,750
Tactile bands
8 EA
0
$350.00 /EA =
$2,800
Sklewalk
10000 SF
0
$3.00 /SF =
$30,000
WATER
12" PVC Water Maln
2050 LF
p
$47.500 -
$97,375
Service
2 EA
0
$900.00 /FA =
$1A0
Flee Hydrant Assy (16ddkV)
I EA
0
$3,250.00 /EA =
$3,250
Blow Off Assembly
2 EA
Q
$1,000,00 /FA -
$3,600
FFPW. EWER:
36" RCP
560 LF
0
$71.00 /LF =
$39,760
30" RCP
B LF
'0
$66.00 /LF -
$528
24" RCP
54 LF
0
$44.00 /LF -
$2,376
I5" RCP
I50 LF
a
$38.00 /LF =
$5,700
48" RCP
WOO LF
0
$145.00 /LF =
$14'S,000
54 " RIP
115 LF
0
$176.00 /LF
$20,240
Type I -B Manhole
3 EA
0
$3,000.00 /EA =
$9,000
Type I -C Manhole
1 EA
0
$3,000.00 /EA =
$3AOO
Type III Manhole
6 EA
0
$25,000.00 /EA =
$1501000
Type S Inlet L-6
2 EA
0
$3,180.00 /EA =
$6,360
Type S inlet L=lY
2 EA
0
$4,500.00 /EA =
$91000
M9E1 LIGHTS
8 EA
0
$1,450.00 /EA =
$111601
MONUMENTS
City Right-cf-Way Monuments
2 EA
@
$655.00 /EA -
$1,310
T-Intersectlon (60' R -0-W)
1 EA
0
$325.00 /EA =
$325
Project and Road Closure Signage
1 LS
$1,500.00 /LS
$1,500
Barricades
2 EA
0
$1,280.00 /EA =
$2,560
Bm9mmmmm
Epoxy (lane Lines-aolkdnrs)
3800 L.F.
0
$1.35 /LF. =
$5,130
Inlay Tape (Lane UnerArterials)
1900 LF.
0
$7.00 /LA=
$13,300
Preform Thermoplastic (Orossmilks, stop bars)
156 SF
0
$3.00 /S.F.=
$468
Arrows
7 EA
0
$85.00 /EA =
$595
Uwasming
15000 SF
0
$3.50 /SF =
$52,500
Landscape design (10% of landscape cost)
0.1
$52,500.00 /LS, =
$S,250
9
SUBDIVSION IMPROVEMENT'S AGREEMENT
EXHIBIT "B"
SUSDIVMON NAME: WL ENTERPRISES
IN 1400704
D WL ENTERPRISES, CDOT, CITY OF PUEBLO
ENGINEER: NORTHSTAR ENGINEERING AND SURVEYING, INC,
M
6" Asphalt over 7" Base Course
3800 SY
0
$25.00 /SY =
$95,000
Curb and Gutter
1558 LF
@
$12.00 /LF =
$1806
ADARamp
25D SF
/SF
$1,000
Square Pan Radius
1054 SF
0
$SMS.OD /SF
$5,270
Tactile bands
4 EA
0
$350.00 /EA =
$1,400
Side valk
5100 SF
0
$3.00 /SF =
$15,300
STREET, Vq
4 EA
@
$1,450.00 /EA =
$51800
E&MENT MAMNGS
Epoxy ([ane Llnes-aolkd:ors)
1340 L.F.
Q2
$1.35 /LF. m
$1,809
Inlay Tape (Lane Unes-Arterials)
730 LF.
0
$7.00 /L.F. =
$5,110
Preform Thermoplastic (Crosswalks, stop bars)
300 SF
0
$3.00 /S.F. R
$900
Arrows
7 EA
@
$85.00 /EA =
$595
WATER
8" PVC Water Main
650 LF
@
$4750 AF -
x,875
Service
i EA
0
$900.00 /EA _
$M
Fire Hydrant Ass'y (1 Eidstttg)
1 EA
0
$3,250.00 /FAR
$3,250
Blow Off Assembly
1 EA
0
$1,800.00 /EA =
#1,800
Excavation for Open Channel
9500 CY
@
$2.20 /CY ++
$20,900
Checkdams (20 ft spc)
45 EA
0
$200.00 /FA =
$9,000
l3pedalty CaWftsln
1 LS
@
$20,000.00 ILS =
$20,000
36" RCP Culvert
300 LF
@
$71.00 /LF -
$21,300
Flowable Fill Material
90 CY
@
$75.00 /CY R
$6,000
Traffic Control
1 LS
@
$10,000.00 LS R
$10,000
Asphalt ncrede over 7" Base Corse
350 SY
0
$16.00 SY =
$5,600
lates
1 IS
0
$1,500.00 LS =
$1,500
Saw Cut
1 LS
@
$500.00 LS =
$500
Roadway Excavation
120 CY
@
$4.00 /CY =
$480
AC Removal
350 SY
@
$2.00 /SY =
$700
12" Waterline Relocation
100 LF
@
$47.50 /LF =
$4,750
Slit Fence 4000 L.F. @ $3.00 IV = $12,000
Inlet Protection 16 EA 0 $220.00 /EA = $3,520
Vehicle Traddng Control 2 EA 0 $800.00 /EA = $11600
$305,'555
rm
SUBDIVISION IMPROVEMENTS AGREEMENT
EXHIBIT "B"
SUBDIVISION NAME: WL ENTERPRISES
JN 1400704
DEVELOPER: WL ENTERPRISES, CDOT, CITY OF PUEBLO
ENGINEER: NORTH57AR ENGINEERING AND SURVEYING, INC.
Construction Bond (10%) $134,135
Post Design Construction Engineering and Surveying $25,000
Mobilization and De-mobllization (10%) or less $67,0'68
Contingency (159/0) 1291,203
lTA „PROJEC T BUDGET: # $2 7" 758
* A contingency cost of 15% was added do to the depth of storm drain exceeding 12ft. Some pants are as deep as
20 feet below grade. In Recent projects Blue Share may be encountered in the general vicinty.
This Is an estimate onfy. Actual construction costs may vary.
PREPARED BY: Shawn M. Clarke
NORTHSTAR ENGINEERING AND SURVEYING, INC.
FIRM -
The undersigned hereby certifies that (1) the
Required Public Improvements shown hereon
and on the Plans and Specifications therefore
constitute all of the public Improvements
required to be Installed and construed for
the Subdivision Chapter 4, Titre XII of the
Pueblo Municipal Code and the standards and
lfations approved by City Council, pi) the
quantities of construction elements shown
hereon accurately depicts the quantities
necessary to construct the Required Public
Improvements and (10) the unit prices shown
hereon are the most current unit prices
provided by the City of Pueblo.
(PE SEALI
REVIEWED BY,
Professonel„_._. .., ,o.. ---Date Engineer Date
4
Reception 2055874
12/08/2016 10:20:16 AM
SPEC/A1. WARRANTY DEED
KNOW :AL,1. MEN BY T1-LCSL PRESENTS. that the CITY OF PL'LI3LO. a
Colorado municipal corporation ("Grantor"). with its principal office at I Cit Hall Place.
Pueblo.CO 81003. tor Tett Dollars and other food and valuable consideration. the receipt
and sufficiency of which are hereby acknowledged. hereby grants, bargains, sells.
conveys and confirms to the DEPARTMENT OF TRANSPOR TA I ION. SL A FE OF
COLt)RAI)(:I("(irantee`_)an a2encv of the State titC'olorado created pursuant to Section
-13-1..101. ei s !,/ , C.R.S.. whose feral address iM T.-201 F. Arkansas Avenue. Denver,
Colorado :130222, the following real property situate in the County of Pueblo and State of
Colorado.to-Wit:
Lot I,(.:1)01 Headquarters Subdivision,County of Pueblo. State ot'Coloradc.
with all its appurtenances. and warrants the title against all persons claiming to hold title
by. through or under the Grantor, subject to easements. restrictions, covenants, conditions
and reservation of record and ,..eneral taxes for this year and subsequent taxes and
assessments.
Sized and delivered this 7 4. dsy ol' eFeK >et' 2016.
l ,,z. ca (TI Y OF I'LIERLO
I)
C-- — ._
1 ,
J,,,.a , .,. . Stephen G. Na. roclti
.„ --. ,
• I
F resident of the(`its Counci I
,;3, immirj lie/
,00 4.
STATE (.)F COLORADO )
1 ss.
C'OliNI V OF I'IJ171IL0 1
the totegoing instrument Was acknowledged before the this -i'H day of
i,\ r I..;.) - I_. . 2016 by Stephen(, Naswro k
Witness n'1* hand and official seal.
.
N,ly commission expires: t': 4 4 I2-I 1.', '(' _ 1:e t.(r ve: I., (-;l_ t ,s c -
Nwary Public
BRENDA ARMIJO ., ;`,-y ”`%
NOTARY PUBLIC i
STATE OF COLORADO
NOTARY ID 20124001702
MY CDMW6pON EXPIRES 0211412020
Reception 2055873
12/08/2016 10:20:16 AM
SPECIAL WARRANTY DEED (\l/ {`
KNOW ALL MEN BY THESE PRESENTS, That WL ENTERPRISES,
LTD., a New Mexico Limited Partnership, with its principal office at 811 Los
Prados De Guadalupe Drive, NW, Albuquerque, NM 87107, Grantor, for the
consideration of Ten Dollars and Other Good and Valuable Consideration, in
hand paid, hereby sells and conveys to CITY OF PUEBLO, a Municipal
Corporation, whose legal address is 1 City Hall Place, Pueblo, CO 81003 of
the County of Pueblo, State of Colorado, Grantee,
The following real property situate in the County of Pueblo and State of
Colorado, to-wit:
Lot 1, CDOT Headquarters Subdivision, County of Pueblo,
State of Colorado.
with all its appurtenances, and warrants the title against all persons claiming to
hold title by, through or under the Grantor, subject to easements, restrictions,
covenants, conditions and reservations of record and general taxes for this year
and subsequent taxes and assessments. .
Signed and delivered this l day of l-k['t'i+( {+r.r' , 2016.
WL ENTERPRISES, LTD.
•
By t t ij')i
Dee Rogers,lrown
Project Manager
STATE OF COLORADO
as,
COUNTY OF PUEBLO
The foregoing instrument was acknowledged before me this f Wday of
2016 by Dee Rogers Brown as Project Manager of WL
Enterprises, Ltd.
Witness my hand and official seal. I
/It (/i
M onaanec m /
eNotar i Public
Notary Public
State of Colorado
1C20094001248 '1 ._`. ..r
M1r1y Commission Expires January 27,2017