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HomeMy WebLinkAbout09778RESOLUTION NO. 9778 A RESOLUTION APPROVING A PURCHASE AND SALE AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND IDA AND GARY ANZUINI RELATING TO THE SALE OF HARP PROPERTY AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE THE PURCHASE AND SALE AGREEMENT TOGETHER WITH A DEED OF CONVEYANCE FOR MODIFIED LOT 1, BLOCK 1, HISTORIC ARKANSAS RIVERWALK PROJECT, FILING NO. 1 WHEREAS, the Historic Arkansas Riverwalk of Pueblo Authority ( "Authority ") has submitted to City Council a recommendation to sell and develop a portion of the HARP private property ( "Recommendation ") described as modified Lot 1, Block 1, Historic Arkansas Riverwalk Project, Filing No. 1 (HARP Property); and WHEREAS the Recommendation to sell and develop the HARP Property is described in the Purchase and Sale Agreement between Pueblo, a Municipal Corporation as Seller and Gary Anzuini and Ida Anzuini, a Purchaser, a copy of which is attached and incorporated herein ( "Purchase and Sale Agreement "); and WHEREAS, the Recommendation of the Authority and Purchase and Sale Agreement are acceptable to the City Council. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The Purchase and Sale Agreement between Pueblo, a Municipal Corporation and Gary Anzuini and Ida Anzuini, a copy of which is attached, having been approved by the City Attorney as to form, is hereby approved. SECTION 2 The President of the City Council is hereby authorized to execute and deliver the Purchase and Sale Agreement in the name of the City together with a deed of conveyance and all necessary and related documents to consummate the purchase and sale of the HARP Property described in the attached Purchase and Sale Agreement. SECTION 3 This Resolution shall become effective upon final passage and approval. INTRODUCED January 27, 2003 BY Al Gurule Councilperson APPROVED: President of City Council ATTEST: M-MN ,1 • :LFD Background Paper for Proposed RESOLUTION AGENDA ITEM # 7 DATE: January 27, 2003 DEPARTMENT: LAW DEPARTMENT / TOM JAGGER PLANNING AND COMMUNITY DEVELOPMENT/ JIM MUNCH PLANNING DEPARTMENT / KATHY GREEN, AICP TITLE A RESOLUTION APPROVING A PURCHASE AND SALE AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND IDA AND GARY ANZUINI RELATING TO THE SALE OF HARP PROPERTY AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE THE PURCHASE AND SALE AGREEMENT TOGETHER WITH A DEED OF CONVEYANCE FOR MODIFIED LOT 1, BLOCK 1, HISTORIC ARKANSAS RIVERWALK PROJECT, FILING NO.1. ISSUE Should the City Approve the Purchase and Sale Agreement with Ida & Gary Anzuini for Lot 1, Block 1, Historic Arkansas Riverwalk Project, Filing No. 1. RECOMMENDATION Approve the Resolution BACKGROUND The Purchase and Sale Agreement includes as attachments Protective Covenants and Construction Covenants. Following is a summary of the project, and the contract points found within the agreement and covenants. Lot 1 20,100 Square Feet Project Specs Proposed Commercial Space of 10,080 square feet Proposed Residential Units (9) totaling 21,500 square feet. 31,580 square feet total for the project, depending on final approvals. Residential units may be purchased in a condominium format and range in size from 2,400 square feet to 2,750 square feet. The detailing and proportions for the fagade are designed to be compatible with the historic structures of the Union Avenue District. Purchase Price $10 psf /$201,000 Common Area Based on use but will be at a Maintenance effective rate of Maintenance approximately $.87 psf, providing approximately $28,879 per year (CAM) Charges in revenue. 1 year abatement after the issuance of Certificate of Occupancy. Consumer Price Index (CPI) adjustable at the end of 2` year. Parking Parking will be constructed below the building, allowing for parking requirements of 2 spaces for each residential unit with additional parking being provided to the northwest of the lot for commercial users and general public. The buyer will improve an adjacent off site lot under a use agreement with the City for non - exclusive use of the parking area but will not own the land. Miscellaneous Construction Covenants ensure performance. Construction shall commence within 4'/ months after the date of deed. Protective Covenants ensure architectural control and CAM Contribution. FINANCIAL IMPACT As set forth in Article 5, Section 3 of the Intergovernmental Agreement creating the Historic Arkansas Riverwalk of Pueblo Authority, "Pursuant to the provisions of Section 7 -21 of the Charter of the City, City Council of City shall create a Special Fund and will segregate and hold in the Special Fund and appropriate and expend the net proceeds from the sale or other disposition of Private Land (but not the lease or use of the Private Land) for the improvement, maintenance, development, and renovation of HARP'. The $201,000 resulting from the sale of this lot will be placed in this special fund. PURCHASE AND SALE AGREEMENT This Agreement, dated Janijaw 2 7 , 2003 (the Effective Date), is between Pueblo, a Municipal Corporation (Seller), and Ida Anzuuri and Gary Anzuini or their assignees (Buyers). Seller owns a development in the City of Pueblo (the City), Pueblo County, Colorado, commonly known as Historic Arkansas Riverwalk Project (HARP). Seller desires to sell to Buyers, and Buyers desire to purchase, Lot 1, Block 1, Historic Arkansas Riverwalk Project, Filing No. 1, as modified in accordance with the plot plan attached hereto as Exhibit "B" (the Property). In consideration of the following covenants and the earnest money discussed below in section 1.1, the parties agree as follows: I. Purchase of Property 1.1 De sit Concurrently with executing this Agreement, Buyers shall deliver to Seller a check in the amount of $10,000 ( Deposit), as earnest money and an additional $10,000 ( deposit) earnest money upon City Council and the HARP Architectural Committee's approval. The Deposit shall be held, paid, applied or refunded as provided in this Agreement. Buyers acknowledge the Deposit will be held directly by Seller without interest and will not be deposited in a brokers trust account or in a closing agent's escrow account 1.2 Purchase Price Seller shall sell and Buyers shall purchase the Property on the terms and condition of this Agreement for a price of $10.00 per square foot or $201,000 (Purchase Price), payable in full by cashiers check or by wire transfer of funds at Closing, less the credit for the Deposit. II. Tide 2.1 Title Commitment Within 10 days after the Effective Date, Seller will furnish to Buyers a commitment for owner s title insurance issued by Transnation Title Insurance Company (Title Company) committing to insure fee title to the Property in Buyers (the Title Commitment). The following items are exceptions to title to the Property, which arc referred to as "Permitted Exceptions ": (a) real property taxes for the year of Closing, payable in 2003; (b) liens, encumbrances or other matters arising out of any activity of Buyers with respect to the Property; (c) any matters contained in the Subdivision Plat for Historic Riverwalk Project, Filing No. 1 (the Subdivision Plat); (d) Protective Covenants in the form and content of attached Exhibit A, which will he attached to and recorded with Sellers deed conveying the Property to Buyers (the Protective Covenants); (e) Construction Covenants in the form and content of attached F.xlubit B (the Construction Covenants), which will be attached to and recorded with Seller's deed conveying the Property to Buyers; (() Standard printed exceptions 1 through 4, contained in owners title insurance issued in Pueblo Comity, Colorado; and (g) Easements, rights of way, restrictions, covenants, and reservations of record. 2.2 Objections to Title If title to the property is subject to any exceptions that are not acceptable to Buyers, Buyers shall deliver a notice of objections to Seller within 10 days after receiving the Title Commitment. If Buyers do not deliver a notice of objections within 10 days, it shall be deemed to have accepted the Permitted Exceptions and all other exceptions and waived all objections to title. Seller shall have until 30 days after delivery of any such notice of objections to procure the issuance of an endorsement to the Title Commitment committing to delete such exceptions, or to otherwise satisfy Buyers' objections, and, upon such endorsement being provided or Buyers being otherwise satisfied, the matter objected to shall be deemed accepted by Buyers. Seller shall have no obligation to cure any title defects. If Seller is unable or unwilling to obtain an endorsement to the Title Commitment as provided above and fails to otherwise satisfy Buyers, Buyers may, as their sole remedy, either (a) terminate this Agreement by delivery of written notice to Seller, in which case the Deposit will be promptly returned to Buyers; or (b) waive any objections to title made in the notice. Absent delivery of a notice of termination to Seller within 10 days after the end of Seller's 30 -day cure exceptions described in the previous notice of objections, the date of Closing shall be extended, if necessary, to allow for the above time periods. 2.3 Title Conveyed Seller shall convey and Buyers shall accept title subject to all Permitted Exceptions and all other matters that were accepted or waived by Buyers as provided above in section 2.2. 2.4 Title Policy Promptly after Closing, Seller shall, at its expense, deliver to Buyers an owner's title policy for the Property in the amount of the Purchase Price, subject only to those exceptions specified above in section 2.3. IIl. Closing 3.1 Time and Place The closing of the purchase of the Property (Closing) shall be at the offices of Title Company in Pueblo, Colorado. Closing shall take place within thirty (30) days after the date of approval of the ordinance subdividing the Property as provided in Sections 5.3 and 6.6 hereof, but in no event later than June 30, 2003. Seller shall designate the date and time of Closing. 3.2 Procedure At Closing, the following shall occur: (a) Seller shall convey the Property to Buyers by special warranty deed (the Deed), subject only to the exceptions referred to above in section 2.3. (b) Buyers shall deliver to Seller the Purchase price for the Property by cashier's cheek or by wire transfer of funds, credited for the Deposit and adjusted for real property taxes as provided below. (c) Real property taxes for the year of Closing, due and payable the following year, shall be prorated to the date of Closing on the basis of taxes for the calendar year immediately preceding the closing. This tax proration shall be considered final settlement of real property taxes. (d) Buyers and Seller shall execute and deliver Title Company's standard closing instructions, a tax proration agreement, a real property transfer declaration and settlement statements, all of which will be prepared by Title Company. (e) Seller shall provide Colorado Department of Revenue Form DR 1083 and an affidavit of non - foreign status pursuant to Section 1445 of the Internal Revenue Code. (f) Seller shall deliver possession of the Property to Buyers. 3.3 Closing Costs Buyers shall pay the documentary and recording fees payable upon recording the Deed, all costs of Buyer's financing, all costs of any endorsements to the title insurance policy requested by Buyers and Buyers' attorneys' fees. Any fees charged by Title Company as escrow or closing agent shall be divided equally between the parties. Seller shall pay for the premium for the owner's title insurance policy (other than the cost of endorsements requested by Buyers). IV. Condition of Property 4.1 Investigation by Buyers Buyers shall have until the date that is 60 days after the Effective Date (the Approval Date) to determine the feasibility of locating Buyers' planned project on the Property. Prior to the Approval Date, Buyers, at their expense, may conduct such studies and investigations and obtain such approvals as it deems appropriate, which may include, but are not necessarily limited to, an environmental audit and assessment, a soils study and soils report, a drainage assessment, radon tests, engineering and surveying work, review of applicable zoning and planning activities. Buyers' obligations under this Agreement are conditioned upon Buyers determining, on or before the Approval Date, that the Property is acceptable for its use and that all studies and investigations are satisfactory, in Buyers' sole discretion. If Buyers deliver written notice to Seller on or before the Approval Date that Buyers have determined that the Property is not acceptable for Buyers' planned project and that Buyers have elected to terminate this Agreement, this 3 Agreement shall terminate and the Deposit shall be promptly returned to Buyers. If Buyers do not deliver such a notice of termination to Seller on or before the Approval Date, the conditions contained in this section 4.1 shall be conclusively presumed to be satisfied, and thereafter Buyers shall have no right to any return of the Deposit. 4.2 Entry by Baers After executing this Agreement, Buyers shall have the right to enter the Property to proceed with studies and investigations as permitted by section 4.1. Until Closing, Buyers shall not materially alter the existing condition of the Property. Buyers hereby indemnify and hold Seller harmless from any and all losses, costs or expenses (including lien and personal injury claims, settlement and reasonable attorneys' fees) which arise from such entry and work, and which may be asserted against either Seller or the Property. 4.3 Physical Condition of Property Buyers acknowledge that Seller has made no representations or warranties concerning the condition of soils on the Property, environmental conditions of the Property, drainage conditions on the Property or any other matter pertaining to the physical conditions of the Property. Buyers are solely responsible for making such investigations concerning the soils, drainage, environmental and other physical conditions on the Property as it deems necessary or appropriate, and Buyers shall rely entirely on their own investigations concerning such matters. This Agreement is not contingent in any way on the condition of the soils or other conditions existing on the Property, except as provided in section 4.1. If Buyers do not terminate this Agreement pursuant to section 4. 1, then Buyers shall purchase the Property "as is" at the time of Closing. Subject to the above, Buyers, for themselves and their successors and assigns, hereby waive and relinquish forever any and all claims it may have relating to the condition of the soils, environmental conditions, and drainage on the Property or any other physical conditions on the Property and, contingent upon Closing, agree to indemnify and hold Seller harmless from any and all claims, losses, costs or liabilities (including reasonable attomeys' fees) resulting from or arising out of the condition of soils, environmental conditions, or drainage on the Property or other physical condition on the Property. V. Planning and Use 5.1 Current Zoning Seller warrants the Property is presently located in the HARP -2 Zone District, as described in the zoning ordinances of the City. Buyers acknowledge that HARP -2 zoning is appropriate for Buyers' contemplated project on the Property and that any development on the property must comply with the applicable zoning ordinances. 5.2 Development Plan and Drainage Plan The ordinances and regulations of the City require Buyers to prepare a development plan for the Property (the Development Plan) indicating the overall development of the Property, all lots and improvements proposed by Buyers, street layout and such other matters as are required by applicable ordinances. Buyers shall prepare the Development Plan. Buyers will also be required by the City to prepare a detailed, site - specific drainage plan for the Property (the Drainage Plan). Buyers acknowledge that the Development Plan and the Drainage 4 Plan must be approved by the City before Buyers may obtain a building permit for the Property. Buyers will submit the Development Plan and the Drainage Plan to Seller for its approval within 30 days after the Effective Date. The approved Development Plan and the approved Drainage Plan may be changed only by mutual written consent of the parties. Buyers will be solely responsible for obtaining necessary governmental approvals of the Development Plan and the Drainage Plan. 5.3 Subdivision The Property is included within an approved subdivision (Subdivision). Buyers acknowledge that the Property will have to provide for utility and drainage easements as required by the City. The Development Plan shall be consistent with the Subdivision. Buyers shall subdivide the Property as two lots or building sites for future sales to individual property owners within the Property, subject to complying with all subdivision ordinances and standards of the City and approval of any such subdivision by the City Council of City by ordinances. As part of such subdivision, Lot 1 will be modified in accordance with the plot plan attached hereto as Exhibit `B ". 5.4 Subdivision Responsibilities If Closing occurs pursuant to this Agreement, Buyers shall provide and pay for all requirements imposed by the Subdivision, including bonds, letters of credit and completion of required improvements, except for those public improvements identified in Section VI that have been completed. Buyers shall be responsible for all fees, including but not limited to tap fees, connection fees and building permit fees, payable under City ordinances and regulations. 5.5 Use. Buyers shall use the Property only for HARP -2 Zone District uses, as permitted by right without waiver or variance except as approved by the City and as permitted by the Protective Covenants. VI. Development Matters 6.1 Utilities Water, sanitary sewer, natural gas and electric lines have been installed adjacent to the Property and have been dedicated to the City. Seller has no obligation to extend existing utility lines or install any other utility lines. Buyers are solely responsible for installing utility service lines from the existing public utility lines to serve improvements to be constructed on the Property and for obtaining all utility service for the Property. Buyers shall also be responsible for installing all telephone, fiber optic and communication lines and services to the Property. 6.2 Streets Victoria and Greenwood Streets have been installed and dedicated as public streets adjacent to the Property. Buyers will be responsible for installing interior streets and driveways on the Property, if any, in accordance with the Development Plan. 6.3 Sidewalks Buyers, at their expense, shall install all sidewalks on or adjacent to the Property as required by the City. 5 6.4 Drainage Buyers, at their expense, shall provide all on -site and off -site drainage facilities in accordance with the Development Plan, the Drainage Plan and any other applicable drainage plans approved by the City. 6.5 Construction of Improvements Construction of all improvements contemplated for the Property shall be in accordance with the Protective Covenants, the Construction Covenants, the Development Plan, the Drainage Plan, the Plat, all plans approved by Seller and all provisions ofthis Agreement. No substantial change in any document or plan approved by Seller shall be made unless the same shall be submitted to and approved by Seller. 6.6 Contingencies This agreement, in its finality, shall be contingent upon Buyer's successful completion of subdividing the Property as two lots or building sites. Within ninety (90) days after the Effective Date, Buyers shall file an application for subdivision and all related and required engineering and studies, and expeditiously pursue the approval of the subdivision. 6.7 Parking Lot. Buyers may, at their sole cost and expense, construct, install and continuously maintain a non - exclusive parking lot on the land shown and described on the attached Exhibit A ( "Parking Lot ") and owned by or under the control of seller. Although Buyers are not granted the exclusive right to use the Parking Lot, the parking spaces in the Parking Lot shall be credited against the number of off -street parking spaces required by the development of the Property. The Parking Lot and spaces shall be constructed and installed in accordance and compliance with City's applicable ordinances, specifications and standards and plans therefore approved by the City's Director of Transportation. The Parking Lot shall be installed and approved by City's Director of Transportation prior to the issuance of a certificate of occupancy for the first building or structure constructed on the Property. If not timely constructed and approved, City may withhold approval of the certificate of occupancy and/or any additional building permits for construction within the Property until the Parking Lot is constructed and approved. 6.8 Removal of Existing Improvements Seller may, prior to Closing, without any liability or claims of damage to the Property, remove all existing improvements from the Property including, without limitation, landscaping and trees. VII. Assignment and Transfer 7.1 Assignment of Contract Seller places special confidence in the qualifications and abilities of Buyers, which are a material inducement to Seller in this Agreement. Consequently, this Agreement is personal to Buyers and the rights and obligations of Buyers hereunder may not be assigned or delegated without the prior written consent and resolution of Seller's City Council. Seller agrees to allow assignment of this contract to an entity owned and controlled by Buyers in which Buyers own at least a 51 % interest. 7.2 Transfers of Property Until five years after Closing, Buyers may not, without Seller's It prior written consent by resolution of Seller's City Council, sell or otherwise transfer to any third party any of its interest in the Property, except that Seller's consent is not required for the following transfers: (a) the granting of bona fide mortgages or deeds of trust on all or part of the Property; (b) the lease or sale of individual dwelling or commercial units in the buildings to be constructed on the Property; (c) the transfer of a subdivided lot containing a completed building and development; or (d) the transfer of all or part of the Property to an entity in which Buyers hold at least a 25 percent ownership interest. VIII. Brokers Seller and Buyers each represent and warrant to each other that no real estate broker or real estate agent has been retained or dealt with by either of them in connection with the transaction contemplated by this Agreement, and each agrees to hold the other harmless from, and indemnify the other against, any claim or demand for commission by any broker or agent based on their respective acts. IX. Capacity of Seller 9.1 Independent Status In no event shall Buyers by their actions or inactions permit it to appear that Seller is participating in the construction of the improvements on the Property or, after Closing, offering for sale or lease any portion of the Property purchased by Buyers. Nothing contained herein constitutes Seller as an agent or partner of Buyers, nor shall render Seller liable for any losses, claims or liabilities arising out of actions of Buyers. Buyers hereby indemnify and hold Seller harmless from all such losses, claims, damages or liabilities. Neither Seller nor Buyers owe any fiduciary duty to the other. 9.2 Names and Logos Buyer shall not use the trade name "Historic Arkansas Riverwalk of Pueblo" or the name "HARP," any variations thereof, any other trade names, trademarks or service marks used by the HARP Authority in promoting the HARP development, or the logos of the HARP Authority in any advertising, signage or other promotional materials or activities involving the Property, without the prior written approval of the HARP Authority. 9.3 Nonliability of Seller's Officials No council member, official, employee, consultant, attorney, or agent of the Seller shall be personally liable to the Buyer under this Agreement or in the event of any default by or breach of the Seller. 9.4 Seller Not a Partner, Buyer Not Seller's Agent Not withstanding any language in this Agreement or any other agreement, representation, or warranty to the contrary, the Seller shall not be deemed or constituted a partner or joint venturer of the Buyer. X. Water Rights The Property does not include any water rights, ditch rights, well rights or reservoir rights which have been or are currently used in connection with the Property, or any rights or interests in or to all groundwater. XI. Recording Neither party may record this Agreement nor any memorandum of it. XII. Default 12.1 Remedies A party shall be in default under this Agreement if it fails to perform any of its obligations under this Agreement as they become due or fails to comply with any covenant or restriction contained in this Agreement. If any party is in default, the non - defaulting party shall have the following remedies: (a) Prior to Closing The non- defaulting party may terminate this Agreement by delivering to the other party a written notice stating that this Agreement is terminated and specifying the event of default. Such termination shall relieve the parties from all obligations to each other under this Agreement with respect to the Property, but shall not affect Buyers' obligations under section 4.2. Upon termination, Buyers will deliver to Seller all plans, building permits, contracts, reports, engineering and marketing studies and other material in its possession, if any, which relate to the Property and also any such documents which were provided to Buyers by Seller. Termination of this Agreement shall be the parties' sole remedy with respect to this Agreement and the Property prior to Closing. Unless otherwise specified herein, termination shall entitle Seller to retain the Deposit if the default is by Buyers, and shall entitle Buyers to a return of the Deposit if Seller is in default. (b) After Closing After Closing, the parties will have all remedies available at law or in equity to enforce any default by the other of any obligations under this Agreement, including the right to obtain an injunction pursuant to (c) below, which rights and remedies are cumulative. �44J (c) Injunction The parties acknowledge that if the Property is not developed and maintained in accordance with the various documents for which Seller's approval is required under this Agreement, the Protective Covenants, or the Construction Covenants, or if this Agreement is breached in any other respect, the non - breaching party's remedies at law would be inadequate. Consequently, except where this Agreement states termination is the sole remedy, each party specifically authorizes the other to obtain from any court of competent jurisdiction, an injunction against the party breaching this Agreement, or any of its agents, contractors or assigns, enjoining any construction on the Property which is not in conformity with such documents approved by Seller, or any other breach. The breaching party acknowledges that the right to an injunction granted herein will not be affected by any provisions concerning arbitration contained in any construction documents. 12.2 Costs In any action to enforce this Agreement, or to collect damages on account of any breach of warranty or indemnity provided for herein, the court shall award to the prevailing party all its costs in such action, including costs of investigation, settlement, reasonable attorneys' fees, expert witness fees, and all additional costs of collecting any judgment rendered in such action. XIII. Notices and Other Deliveries Any notice or other documents or materials required or permitted to be delivered hereunder shall be deemed properly delivered upon receipt by the party to whom the same are to be delivered, as follows: If to Seller, to Pueblo City Manager, One City Hall Place, Pueblo, Colorado 81003, with a copy to Thomas E. Jagger, City Attorney, 501 N. Main St., #127, Pueblo, Colorado 81003 -3124, and Mark J. Hess, Executive Director, HARP Authority, 200 West 1 st Street, Suite 303, Pueblo, Colorado 81003. If to Buyer, to Mr. Gary Anzuini and Mrs. Ida Anzuini, 1605 Lynda Lane, Pueblo, Colorado, 311101.1 Either party may, by notice properly delivered, change the person or address to which future notices and deliveries to that party shall be made. XIV. Interpretation of Agreement 14.1 Governing Law Any action arising out of this Agreement shall be brought in the Pueblo County, Colorado, District Court and this Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. we, 14.2 Headings The article and section headings in this Agreement are for convenience only, and shall not be used in its interpretation or considered part of this Agreement. 14.3 Saturdays. Sundays and Holidays If any payment or delivery of any document is required pursuant to any term of this Agreement to be made on the date which falls on a Saturday, Sunday or legal holiday in the State of Colorado, such payment or delivery shall be made on the first business day following such Saturday, Sunday and legal holiday. 14.4 Counterparts This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 14.5 Term of Agreement This Agreement shall commence on the date of its execution and continue in full force and effect until such time as all obligations of the parties to each other hereunder have been fulfilled. 14.6 Effect of Agreement All negotiations relative to the matters contemplated by this Agreement are merged herein and there are no other understandings or agreements relating to the matters and things herein set forth other than those incorporated in this Agreement. This instrument sets forth the entire agreement between the parties. No provision of this Agreement shall be altered, amended, revoked or waived except by an instrument in writing signed by the party to be charged with such amendment, revocation or waiver. Subject to the provisions of Section VII, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. 14.7 Survival of Representations and Warranties All covenants, agreements, representations and warranties made hereunder or pursuant hereto or in consideration of the transactions contemplated hereby shall survive Closing and delivery of the deed. 14.8 Severabilitv If any clause or provision of this Agreement is illegal, invalid or unenforceable under applicable present or future laws, then it is the intention of the parties that the remainder of this Agreement shall not be affected, and that in lieu of any such clause or provision there be added as a part hereof a substitute clause or provision as similar in terms and effect to such illegal, invalid or unenforceable clause or provision as may be possible. 10 14.9 Time Time is of the essence of this Agreement. SELLER: Pueblo, a Colorado Municipal By: Bill Sova City Council President I'DIM L' I Gary >�GC. Ida Anzuini !el 11 3 S © :« ] . • a , « \\ \ ° :_ « �� � d<# W \� « e »« � --- � . / ^ \Af � { Mc , "\ `� ! :)' ?2m_ ����� /■ � i 40'� ! cr / a 1 ` LAKE 1 ! 1 1 \ 1 t BLOCK p K ETSCHMEr SUB 0 1 73070 111111111111111111111111111111111111111 P15age: 1 06/30/2004of 0915:56A ChrisC.Munoz PuebloCtyClk&Ree WD R 76.00 D. 0.00 = • SPECIAL WARRANTY DEED • THIS DEED,dated June ,2004 between the City of Pueblo, a municipal . Xa corporation duly organized and existing under and by virtue of the laws of the State of Colorado ,grantor,and Gary Anzuini and Ida Anzuini, as joint tenants with right of survivorship • whose legal address is 1605 Lynda Lane, Pueblo, Colorado, 81008 • .. of the *County of Pueblo and State of Colorado ,grantee(s): WITNESS,that the grantor,for and in consideration of the sum of Two hundred one thousand dollars ($201,000.00) 1:19M.II1 the receipt and sufficiency of which is hereby acknowledged,has granted,bargained,sold and conveyed,and by these presents does grant, bargain,sell,convey and confirm unto the grantee(s) their heirs,successors and assigns forever,all the real property,together with improvements,if any,situate,lying and being in the County of Pueblo and State of Colorado,describedaXe4llsstsc in Exhibit "A" attached hereto and incorporated herein. Subject to general property taxes for 2004 and subsequent years', easements, rights of way, restrictions, • requirements, covenants and reservations of record and the • 1P lri Construction Covenants and Protective. Covenants attached hereto NP as Exhibits "B" and "C" and incorporated herein. . . Documentary Fee: NONE, exempt, SectiOn 39-13-104 (1) (a) , C.R.S. • alsoknownbystreetandnumberas: unimproved real property assessor's schedule or parcel number. TOGETHER with all and singular the hereditaments and appurtenances thereunto belonging,or in anywise appertaining,the reversion and reversions,remainder and remainders,rents,issues and profits thereof,and all the estate,right,title,interest,claim and demand whatsoever of the grantor,either in law or equity,of,in and to the above bargained premises,with the hereditaments and appurtenances; TO HAVE AND TO HOLD the said premises above bargained and described with the appurtenances,unto the grantee(s), their heirs,successors and assigns forever.The grantor,for itself,its successors and assigns does covenant and agree that it shall and will WAR- - -r RANT AND l tilif$IaIDAERiD the above bargained premises in the quiet and peaceable possession of the grantee(s), their heirs,succfsseirs asiligns, gai all and every person or persons claiming the whole or any part thereof,by,through or under the grantor. k /�" of the City Council IN• Id> the gianto°t�as caused its corporate name to be hereunto subscribed by its President and its corps tte seal't 'hereunto affixed,lkttestdd by its City Clerk 5aaeti the day and year first above written. Z' Atte �' City-of Pueblo, a municipal ►ren, � IN.._ cor•or•tion 00 C2tCe ` mer ' ( r txac i UZ LU— j't L a )rr P eside • ''the City CZT,noil 2 • -'-'''b,,,'-i...5,. _,':)1,p_ - Jt7� f, ur COLORADO 0 0 • -,1. County of Pueblo ss. j J . > The foregoing instrument was acknowledged before this 28th day of June ,20 0 4 v m w.s{ t Randy Thurston as President w . OGill r•scv' ' the City Council and Gina Dutcher, as City Clerk X ,e,,,,.."\ '•;t. -.,oft t`'':City of Pueblo, .a municipal corporation. acorporation. ~ �._ `� .'1 t Witness my hand and official seal. M Z \131.4 . t'-ac4 'scion expires 7 n LAin De ,iaeert"City and". �— t'_ L ` Nolary� . }�� `(� ` ,-\A'ki'-W'Y\ , —L k k or c o ,t NamePO GO Ad�drcu of Person Creating Newly/'� Created Legal Damietta!'(138-35-106.5,CR.S.) .1'44 4t1*t!I'1''', P D G r)x 193 t_7e dai l ca GS/Q D-3 No.16B.Rev.4-94. SPECIAL WARRANTY DEED(Corporarb•) 175-175-`L �Q/��Jf 1 Bradford Publishing,1743 Wane Si.,Denver,CO 80202—(303)292-2300—www.bradfordpublishing.com—9-01 (� ( ' , 11 01111 II III 1 H 1573070 II Page: 2 of 15 06/30/2004 09:56A ChrlsC.Munoz PuebloCtyClk&Rec WD R 76.00 D 0.00 LOT 1 HISTORIC ARKANSAS RIVERWALK PROJECT,FILING ONE, PUEBLO, COUNTY, COLORADO,TOGETHER WITH THE FOLLOWING EASEMENT: A five (5)foot ingress-egress easement being a portion of Parcel A,Historic Arkansas Riverwalk Project, Filing One, according to the recorded plat thereof,filed for record July 20, 1999 at Reception No. 1289663,in the records of the Pueblo County Clerk and Recorder;being more particularly described as follows: BEGINNING at the SE corner of Lot 1 of said Historic Arkansas Riverwalk Project, Filing One; thence S 00°34'44"E(Bearings based the east line of said Lot 1,monumented at each end with a No. 4 rebar and yellow plastic cap P.L.S.No. 12933 to bear S 00°34'44"E as established on the recorded plat of said Historic.Arkansas Riverwalk Project, Filing One)along the east line of said Parcel A, a distance of 7.38 feet;thence N 43°15'15"W,a distance of 56.92 feet to a point on the southwesterly line of said Lot 1;thence southeasterly along said southwesterly line - the following two (2)courses: 1) S 77°33'58"E,a distance of 8.87 feet 2) S 43°15'15"E, a distance of 44.17 feet • to the POINT OF BEGINNING. County of Pueblo, State of Colorado. Said easement contains 253 square feet more or less. RESERVING HOWEVER TO GRANTOR THE FOLLOWING EASEMENT: A five (5)foot sidewalk easement being a portion of Lot 1,Historic Arkansas Riverwalk Project, Filing One, according to the recorded plat thereof, filed for record July 20, 1999 at Reception No. 1289663,in the records of the Pueblo County Clerk and Recorder; being more particularly described as follows: COMMENCING at the SE corner of Lot 1 of said Historic Arkansas Riverwalk Project, Filing One;thence northwesterly along the southwesterly line of said Lot 1 the following three(3) courses: 1)N 43°15'15"W(Bearings based the east line of said Lot 1,monumented at each end with a No. 4 rebar and yellow plastic cap P.L.S.No. 12933 to bear S 00°34'44"E as established on the recorded plat of said Historic Arkansas Riverwalk Project, Filing One), a distance of 44.17 feet 2)N 77°33'58"W, a distance of 63.86 feet 3)N 43°15'15"W,a distance of 60.00 feet to the POINT OF BEGINNING;thence continuing along said southwesterly line N 43°15'15"W,a distance of 50.00 feet;thence N 46°44'45"E,a distance of 5.00 feet;thence S 43°15'15"E, a distance of 50.00 feet;thence S 46°44'45"W,a distance of 5.00 feet to the POINT OF BEGINNING. County of Pueblo, State of Colorado. Said easement contains 250 square feet more or less. _ EXHIBIT "A" _ ' t 157304 70 0Page: 3 of 15 ChrisC.Munoz PuebloCtyClk&Ree WI) R 76.00 6�30D20 00 9:56A, CONSTRUCTION COVENANTS 1. Introduction • Pueblo, a Municipal Corporation ("City"), owns substantial real estate adjacent to, and in the vicinity of, the land being conveyed by the deed to which these Construction Covenants (the "Covenants") are attached and made a part of(the"Deed"), which land City anticipates developing as part of its Historic Arkansas Riverwalk of Pueblo development(such land owned by City is referred to as the"HARP Development"). Itis essential to the HARP Development that the land being conveyed by the attached Deed (the "Property") be timely developed in a manner consistent with the overall HARP Development. Consequently, these Covenants are hereby placed on the Property. 2. Applicability These Covenants apply to Gary Anzuini and Ida Anzuini ("Buyer),'to all of the Property perry and to any individual or entity having any interest in the Property after the date of the attached Deed. These Covenants supplement ftie Protective Covenants that are also attached to this Deed, the terms of which are also binding upon Buyer and subsequent owners,occupants or others with an interest in the Property. 3. Time to Commence Construction 3.1 Construction. Within four and one half months (4 '/i) after the date of this Deed, construction shall have commenced on the Property. Commencement of construction is defined as building permits having been obtained from the Pueblo Regional Building Department. and foundations having been poured for a 300 'X 52 'building or buildings containing a total of 14,656 square feet of enclosed floor space. All building permits and construction shall be according to development plans that have been approved by City's Department of Public Works and the HARP Authority as required by the Protective Covenants. Buyer will promptly notify City and the HARP Authority when it obtains the required building permits and when the foundations have beep poured. 3.2 Acknowledgment of Compliance. All building permits and construction shall be in accordance with development plans which have been approved by the HARP Architectural Review Board, City Council and the HARP Authority as required by the Protective Covenants. After commencement of construction as required by Section 3.1 above,and if requested by Buyer,City shall execute and deliver a writing duly signed and acknowledged stating that construction has been so commenced and releasing City's right to repurchase the Property pursuant to Section 6.1 below on account of failure to commence construction. 4. Completion of Construction Construction of the improvements, once commenced, shall be diligently pursued. Construction will commence on Phase I as soon as possible after closing and construction on Phase II will begin within eighteen (18)months after the commencement of construction for Phase I. After construction has commenced, if no substantial construction is performed on uncompleted improvements for a period of six consecutive months (unless such delay is caused by one or more of the events listed in Section 5 below), then City shall have the right to repurchase all of the Propertyi 1 EXHIBIT "B" ,,,_ 111 1573070 11111 II 111111 11 II Page: 4 06/30/2004of 0915:56c ChrtsC.Munoz PuebloCtyClk&Rec WD R 76.00 D 0.00 together with all improvements located on it. City shall also have theright to repurchase all of the Property, including improvements, if any building on the Property on which construction has commenced has not been substantially completed within one year after commencement of construction. A building shall be deemed substantially completed if the Pueblo Regional Building Department has issued a certificate of occupancy for the building. The repurchase shall be on the terms provided in Section 6 below. 5. Unavoidable Delays In the event the obligation to obtain building permits, commence construction or complete construction in accordance with the provisions of Sections 3 and 4 shall be unavoidably delayed by fire, flood, drought or other act of God; strikes or material shortages; war or national emergency; governmental impositions,including building permit moratoria and utility moratoria(but not including failure to obtain governmental approvals of development plans); or other similar cause beyond the reasonable control of Buyer,then the period of time prescribed for performance of such obligations shall be extended for periods equivalent to the periods of such unavoidable delays, provided that within 30 days of the occurrence of such unavoidable delay City shall have received notice of the cause thereof,and that at the end of each such period of unavoidable delay City shall have received notice of the period by which times for performance of such obligations are required to be extended. 6. Repurchase Failure to comply with the provisions of either Section 3 or Section 4 shall be an event of default under these Covenants. An event of default shall,in addition to any other remedy it may have, entitle City to repurchase the Property from Buyer as follows: 6.1 Before Construction Commences. If construction has not been commenced on the Property,the"Repurchase Price" shall be the original Purchase Price of$201,000:`. 6.2 After Construction has Commenced. If construction has commenced on the Property, the Repurchase Price shall be the amount determined by Section 6.1 plus Buyer's "Direct Costs." "Direct Costs" are the actual direct costs of labor and materials incorporated into the improvements located on the Property, exclusive of any compensation for architects,engineers,executives, office or supervisory employees of Buyer, and exclusive of construction loan interest and Buyer's general overhead. Upon City's delivery of a Notice of Default as provided in Section 6.3 below, Buyer will, within 30 days after such Notice of Default,give City an accounting of Direct Costs,together with such documents as City may request substantiating this accounting(such as bills,invoices,construction loan draw requests, copies of checks, and similar documents and verifications). 6.3 Notice of Default. If City believes Buyer is in default of its obligations to commence or complete construction under Section 3 or Section 4 above,it shall,within 30 days after it believes such default occurred,deliver to Buyer a notice stating the default(the"Notice of Default"),together with a request for an accounting of Buyer's Direct Costs,as specified in Section 6.2 above. Failure of City to give the Notice of Default shall terminate City's repurchase rights under this Section 6 on account of that specific default. If Buyer believes it is not in default,it shall,within 5 calendar days after receipt of 2 t, • 11111111111111111011111111111111111111111 1 57 Page: 5 o3070f 15 ChrisC.Muno2 PuebloCtyClk&Reo WD R 76.00 6/30D 00.000 9:56G the Notice of Default, deliver to City a notice stating why it believes it is not in default,and if no such notice is delivered,it shall be conclusively presumed that Buyer is in default as specified in the Notice of Default. 6.4 Notice of Exercise. If City has delivered the Notice of Default required by Section 6.3, and if Buyer is in default as specified in that Notice, then City shall have the right to repurchase the Property and the improvements located thereon by delivering to Buyer a notice stating City intends to repurchase (this notice is called"Exercise"). If City has not Exercised on or before: (a) sixty days after the Notice of Default was delivered if the default occurred prior to commencement of construction, or (b) sixty days after the accounting of Direct Costs (together with supporting documents) was delivered to City pursuant to Section 6.2 if the default occurred after commencement of construction, then City's right to repurchase contained in this Section 6 on account of the matters specified in the Notice of Default shall terminate. 6.5 Closing, Closing of the repurchase shall be at a time and place selected by City,but in no event later than 30 days after Exercise. At closing: (a) Buyer shall deliver an updated title commitment and its general warranty deed transferring title to the Property (including all improvements and appurtenant easements, if any), to City. This general warranty deed shall be subject only to the matters set forth in the Deed and existing on the date of the Deed to which these Covenants are attached,exclusive of any such matters that arose from Buyer's activity with respect to the Property. Within 10 days after the closing, Buyer shall, at its expense, deliver to City a title insurance policy issued by Transnation Title Insurance Company ("Title Company'), insuring marketable title to the Property in City in the amount of the Repurchase Price. The title policy shall be subject only to the same exceptions included in Buyer's deed. The standard printed exceptions contained in Title Company's title policies shall be deleted. (b) City shall pay the Repurchase Price to the following persons in the following order: (1) persons lawfully claiming mechanic's liens pursuant to section 38-22-101 et seq., C.R.S. (2) persons having a valid mortgage, deed of trust lien, or security interest on the Property or Improvements or any part thereof. (3) Buyer (c) The Repurchase Price shall be adjusted for real property taxes prorated to the date of the closing of the repurchase based on the most recently available assessment 3 7 111 I 11 111111 11 1101 II• Page15: 6 of 15 06/30/2004 093070:56E ChrlsC.Munoz PuebloCtyClk&Reo WD R 76.00 D 0.00 and mill levy. 6.6 Continuation of Right. -If City fails to give a Notice of Default or to Exercise, and, consequently, City's right to repurchase on account of that default expires, such expiration shall not affect City's right to repurchase arising from subsequent events of default under the provisions of these Covenants. 7. Land Benefitted These Covenants shall run with and burden the property and are for the benefit of City and all land owned by City in the HARP Development. These Covenants shall be enforceable only by City and its specific assigns pursuant to Section 11.2 below. 8. Release of Covenants Upon completion of the improvements described in Section 3.1 above on each Phase of the Property in compliance with these Covenants and the Protective Covenants,and if requested by Buyer, City shall, within 10 days, execute and record with the Pueblo County Clerk and Recorder an acknowledged written instrument referring to these Covenants and stating that the Covenants are released from that Phase. Upon recording such instrument, these Covenants shall automatically terminate with respect to that Phase. Termination of the Covenants shall not terminate or otherwise affect the Protective Covenant. 9. Protection 9.1 Protection of Persons and Property. The Buyer shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss, caused by or resulting from Buyer's construction activities on the Property and in or near the HARP Development to: (a) Employees on the Property and for all members of the public at or near the HARP Development including persons near City Hall or within the HARP Development; (b) Property (including, without limitation, the HARP Development and the Site Improvements) at or adjacent to the Property, including party walls and common components. The Buyer shall comply with all safety laws and regulations and building codes and shall provide reasonable safeguards for safety and protection, including posting danger signs and other warnings notifying employees and members of the public of construction hazards. The Buyer shall promptly remedy physical damage to the Property and the HARP Development caused in whole or in part by the Buyer,its contractors and subcontractors or anyone employed directly or indirectly by any of them,or by anyone for whose acts they may be liable and for which the Buyer is responsible,except for damage or loss attributable to the negligent acts or omissions of the City or its contractors or subcontractors or anyone directly or indirectly employed by the City. 4 II 1573070 111 I 111111111 11 11 1111 Page: 7 of 15 06/30/2004 09:56F ChrisC.Munoz PuebloCtyClk&Rec WD R 76.00 D 0.00 10. Insurance Prior to Completion of Construction. At all times while the Buyer is engaged in preliminary work on the Property or the HARP Development and during the period from the Commencement of Construction until Completion of Construction,the Buyer shall carry and,upon request,will provide the City and the HARP Authority with proof of payment of premiums and certificates of insurance as follows: (a) Builder's risk insurance (with a deductible not to exceed$25,000)in an amount equal to 10096 of the replacement value of the buildings being constructed at the date of Completion of Construction.If a building is damaged or destroyed by fire or other casualty prior to completion of construction,Buyer shall proceed forthwith to repair,reconstruct and restore the damaged building to substantially the same condition or value as existed prior to the damage or destruction,and the Owner, or whoever receives the proceeds,shall apply the proceeds of any insurance relating to such damage or destruction to the payment or reimbursement of the cost of such repairs, reconstruction and restoration. (b) comprehensive general liability insurance (including operations, contingent liability, operations of subcontractors, completed operations, and contractual liability insurance), • automobile and umbrella liability insurance with a combined single limit for both bodily injury and property damage of not less than$3,000,000, naming the City and the HARP Authority as additional insureds. Such insurance shall carry a deductible in an amount not to exceed $2,500 per claim for property damage and $2,500 per claim for employee benefits. (c) ' workers'compensation insurance,with statutory coverage,including the amount of deductible permitted by statute. The policies of insurance required under subparagraphs (a) through (c) above shall be reasonably satisfactory to the City and the HARP Authority, placed with financially sound and reputable insurers,require the insurer to give at least thirty(30)days advance written notice to the City and the HARP Authority as additional insureds, specifying that the insurance shall be treated as primary insurance in each case. 11. Assigns 11.1 Buyer's Assigns. Any reference to Buyer in these Covenants shall also refer to any successors or assigns of Buyer, or subsequent owners, occupants or others having any interest in the Property. 11.2 City's Assigns. City may assign its rights and authority hereunder by an express written assignment referring to these Covenants, duly recorded. Any reference in these Covenants to City shall also mean any such assigns. 5 • 70 . II III I II 111111 II 111 I II P15age: 83of 1570 06/30/2004 09:56E ChrisC.Munoz PuebloCtyClk&Reo WD R 76.00 D 0.00 12. Term These Covenants, and any amendments hereto, shall remain in effect until December 31, 2005, unless sooner released pursuant to Section 8 above. 13. Notices • Any notice or other document or materials required or permitted to be delivered under these Covenants shall be in writing and shall be deemed properly delivered upon receipt by the party to whom the same are to be delivered. Notices shall be addressed as follows: If to City, to Pueblo City Manager, Once City Hall Place, Pueblo, Colorado 81003, with a,with a copy to Thomas E.Jagger, City Attorney,501 N. Main Street,#127, Pueblo, Colorado 81003-3124,and MarkJ. Hess,Executive Director,HARP Authority, 200 West 1°Street,Suite 303, Pueblo, Colorado 81003. • If to Buyer, to Mr. Gary Anzuini and Mrs. Ida Anzuini, 1605 Lynda Lane, Pueblo, Colorado, 81008. Either party may, by notice properly delivered, change the persons named and address to which subsequent notices shall be delivered. • CITY: PUEBLO,A MUNICIPAL CORPORATION / -.."" 1. , By: A Lam. STATE OF COLORADO) SS. • COUNTY OF PUEBLO ) • The foregoing instrument was acknowledged before me on June 28 ,2004,by Pueblo, a Municipal Corporation, by . Randy. Thurston ,AJ Pcerkf o+n. C:4- Cw,:..r t,, Witness my official hand and seal. My Commission Expires: August 18, 2007 ''',.,...Q • . .-• ? - Notary blit _I! •t nlr 8 L , eQ 4z. Q 14 OF 00 6 1 II 1111 I II II II II I I Pae: 9 of 1 06/30/2004573070g 5 09:56f ChrisC.Munoz PuebloCtyClk&Reo WD R 76.00 D 0.00 PROTECTIVE COVENANTS 1. Introduction Pueblo, a Municipal Corporation ("City") owns substantial real estate adjacent to, and in the vicinity of, the land being conveyed by the deed (the "Deed") to which these Covenants are attached and made a part of,which the City is developing as part of its Historic Arkansas Riverwalk of Pueblo (HARP) Development. It is essential to HARP that the land being conveyed by this Deed (the "Property") be developed and maintained in a manner consistent with the overall HARP Development. Consequently, the following Covenants are hereby placed on the Property: 2. Applicability These Covenants apply to Gary Anzuini and Ida Anzuini("Owner"),to all of the Property and to any individual or entity having any interest in the Property after the date of the Deed and are deemed to be covenants running with the Property. These Covenants supplement the Construction Covenants that are also attached to the Deed,the terms of which are also binding upon the Owner and subsequent owner, occupants or others with an interest in the Property. 3. Use of Property The Property shall be used only for the uses permitted by right,without waiver or variance, under the HARP-2 Zone District, as defined by the zoning ordinances of the City of Pueblo. The Property is located adjacent to a public project known as HARP. Owner understands and agrees that the use of HARP and activities conducted thereon by City,HARP Authority and the public may interfere with the use and enjoyment of the Property and/or annoy or inconvenience owners and users of the Property. Owner shall not complain about any lawful activities conducted on,HARP or the lawful use of HARP by the City, HARP Authority or the public and waives any and all claims of nuisance or interference with the use and enjoyment of the Property arising out of, or resulting, directly or indirectly,from any such lawful use or activity. Owner shall not undertake or perform any activity on, or use the Property in a manner which will limit or interfere with the reasonable use and enjoyment of HARP by`the City, HARP Authority or the public. 4. Underground Utilities All telephone and power lines and lines for transmission of electronic signals installed upon the Property after the date of this Deed shall be underground, except for customary surface devices for access or control. 5.Architectural Control 5.1 Rezoning and Resubdividing. The Property shall neither be rezoned nor resubdivided while these covenants are in effect. 5.2 Construction Documents. Before any building permit is obtained or any work is 1 EXHIBIT "C" 111111111111111111111111111111 1111 157300470 Page: 100 of 15 ChrisC.Munoz PuebloCtyClk&Reo WD R 76.00 6/30/D 0.00• 9:561 • commenced on any Improvement(as defined below), there shall be delivered to the City Department • of Public Works, the HARP Authority, and the HARP Architectural Review Board final plans and specifications for any Improvement, including, as applicable, elevations, site plans, grading and drainage plans, landscaping plans, outline specifications, samples of exterior materials, and exterior colors,proposed signing and site lighting,construction access to the Property and construction site.All such submittals must be approved by the HARP Authority arid the HARP Architectural ReviewBoard pursuant to Section 17-4-51(12.2)(d) of the Pueblo Municipal Code before a building permit is issued • and construction begins on any Improvement. Construction schedules shall also be delivered to the HARP Authority and the City Department of Public Works for informational purposes before construction begins on any Improvement. All Improvements shall be constructed substantially in accordance with plans and specifications approved by the HARP Authority and the HARP Architectural ReviewBoard pursuant to these Covenants. As used in these covenants,"Improvement" shall mean any object, thing or activity of any kind installed, located or occurring on the Property which changes the external appearance to the Property, from its external appearance as it existed immediately prior to the installation, location or occurrence of the object, thing or activity. • Improvements include,but are not limited to, all buildings,structures,landscaping and lawns,exterior walkways,parking areas,drives and truck loading areas,signs,fences,poles,walls,utility lines,lighting, excavations, grading, berms, drainage facilities, repairs, alterations, painting and all other things or objects of any type or kind installed or•constructed on the Property. 5.3 Common Use Documents. •All documents either attempting to establish condominiums or other forms of common use or ownership,or regulating use or maintenance of any portions of the Property, shall be submitted to and approved in writing by the HARP Authority and the City Department of•Zoning before their being recorded, and prior to the sale or rental of any Improvement on the Property to any party. HARP Authority and the City's review of these documents is for the limited purpose of ensuring that adequate provisions are made for first class maintenance of the Property and all Improvementsthereon,for controlling and approving any exterior changes or modifications to Improvements, for establishing of enforceable covenants that prescribe standards for use of the Property and all Improvements thereon including,but notlimited to the use of balconies,garages, parking areas and landscaping areas, and for adequate assessment procedures to fund the implementation of the documents,including the reimbursement of charges assessable against the Property pursuant to section 6.3 of these Covenants. • • 5.4 Changes. No substantial change in or to any plat,special area plan,master plan,plans and specifications or document relating to the Property shall be made unless approved by the City of • Pueblo and the HARP Authority. 5.5 Names and Logos. Neither the names "HARP" or "Historic Arkansas Riverwalk of Pueblo", or any derivatives thereof,nor the logos associated with such names may be used in any way in connection with the Property,any use;or any promotion of it,unless HARP Authority has given its prior written approval to such use. 5.6 Approval Procedures. These Covenants require the owners and occupants of the Property to obtain the HARP Architectural Review Board and the HARP Authority's approval of • 2 7 Page: III I 11111111 II III I II II III I 11111111 II 111111 06/3150/2310100:709015:561 ChrisC.Munoz PuebloCtyClk&Reo WD R 76.00 D 0.00 various plans,information,documents,writings and materials delivered to City and HARP pursuant to this Section 5. The City will not withhold its approval if it reasonably determines such items contemplate architecturally integrated and high quality Improvements consistent with the aesthetic and functional standards of the HARP Development, the HARP-2 Zone District and the specific provisions of these Covenants. If either HARP Architectural Review Board or HARP Authority does not approve, it shall, within forty-five days after submission, deliver notice stating its reasons for disapproval to the party desiring the approval,who may then deliver a resubmission to eliminate the HARP Architectural Review Board or the HARP Authority's objections. If the HARP Architectural Review Board or HARP Authority fails to act on any submission or resubmission within such forty-five (45) day period after receipt thereof,it shall be deemed to have approved. The time periods referred to above shall begin on the date the HARP Authority receives any submission or resubmission. Requests for approval shall be submitted as provided in Section 12,below. 6. Maintenance of Improvements 6.1 Obligation to Maintain Improvements. All Improvements constructed on the Property shall be maintained,or caused to be maintained,by the owner thereof in first-class condition. Such maintenance shall include,but not necessarily be limited to,repairing any structural damage to or defects in Improvements,keeping the exteriors of any Improvements on the Property in first class condition, including painting as required, maintaining in good condition and repair all landscaping, walks, streets and parking facilities on the Property,keeping vehicular and pedestrian areas free from accumulations of snow and ice,keeping the Property free of trash and debris,and keeping all signs and lighting on the Property clean and functional. At all times, but particularly during construction, the Property owner shall control noxious weeds and fugitive dust in accordance with applicable governmental requirements and shall keep adjacent sidewalks, streets and roads free from accumulations of mud,dirt and debris originating on the Property. The owner of Improvements shall maintain at all times at its cost and in full force and effect "all risk" casualty insurance (including without limitation flood and earthquake coverage to the extent reasonably available),for not less than 100%of the replacement value of the Improvements. In the event of damage thereto or destruction thereof,the owner of the Improvements shall proceed forthwith to repair,reconstruct,and restore the damaged or destroyed portions of such Improvements to substantially the same condition and value as existed prior to such damage or destruction, applying for such purposes all the proceeds of such casualty insurance to the payment or reimbursement of the costs of such repairs,reconstruction and restoration. 6.2 City's Right to Maintain Improvements, If City,in good faith,reasonably determines any portion of the Property or the Improvements located thereon are not being maintained or repaired in the manner specified in Section 6.1 above, City shall give the owner thereof,or the person occupying the portion of the Property involved,a written notice specifying the maintenance or repairs which City determines is required under these Covenants. If the maintenance or repairs specified in such notice is not satisfactorily performed within thirty days after delivery of such notice,or within such longer time as City reasonably determines is required to perform such maintenance or repair, City shall thereafter have the right, but not the obligation, to perform such maintenance or repair and to enter any of the Property and perform any acts reasonably necessary to complete such maintenance or 3 1573070 Page: 12 °7 15 06/30/2004 09:56f ChrisC.Munoz PuebloCtyClk&Rec WD R 76.00 D 0.00 repairs. City shall not be liable for any losses,costs or damages to any tenant or owner of the Property on account of its performance of such maintenance or repairs, except for any such loss, cost or damage caused by City's gross negligence or willful misconduct. City may delegate its maintenance rights hereunder to the HARP Authority. 6.3 Reimbursement and Lien. In the event City elects to perform maintenance or repairs pursuant to section 6.2 above, the City will submit to the owner or the tenant of the Property upon which or for whose benefit such maintenance or repairs was performed, a written statement of the costs incurred by the City in performing the maintenance or repairs.These costs shall be paid to the City within twenty days after receipt of such notice. If the City's costs have not been paid after expiration of this twenty-day period, the City may thereafter record a lien against the Property for all costs (including reasonable attorneys' fees) incurred by the City in performing the maintenance or. repairs and in collecting such costs and foreclosing upon the lien. Such lien shall be junior to all other liens or encumbrances of record with respect to the Property on the date the lien is recorded. The lien and the lien described in Section 6.4 may thereafter be foreclosed upon in the manner provided by Colorado law for foreclosing upon real estate mortgages. This lien shall provide that all sums expended by the City or the HARP Authority in foreclosing the lien and collecting the amounts due City or the HARP Authority (including reasonable attorneys' fees) shall be additional indebtedness secured by such lien. 6.4 Common Area Maintenance Expenses. The Owner of the Property shall pay, in the amount set forth below,a common area maintenance charge to the HARP Authority to partially pay for maintaining and promoting the common areas and the public improvements in the HARP Development which shall include,but not be limited to,the cost of: gardening and maintaining the landscaping;operating and maintaining the HARP Channel and identification signs;replacing plants and planters;providing seasonal and holiday decorations;painting; lighting;resurfacing;repairing utility service lines in the common areas; clearing and removing snow,trash, rubbish, garbage and other refuse;paying interest on any funds advanced;providing personnel to implement such services and paying for administrative expenses. The HARP Authority will use all funds so collected to provide for the aforedescribed maintenance. . To compensate the HARP Authority for providing such maintenance and promoting the common areas, and public improvements in the HARP Development, the Owner of the Property shall pay the amount of$.45 per square foot per year for each square foot of residential gross building area under roof in each building located on the Property and$1.75 per square foot per year for each square foot of commercial(restaurant/office/retail)gross building area under roof in each building located on the Property. Payment of the common area maintenance expenses shall begin one (1) year subsequent to the first day of the month following the issuance of a temporary or permanent certificate of occupancy for each buildinglocated on the Property. Monthlypayments of 1/12th the total amount due shall be made on the first of each month. The common area maintenance charge shall remain the same for two years from the date of the first payment. Thereafter(beginning with the start of the third year),the common area maintenance charge shall be annually increased by the larger of five percent(5%) or the percentage increase, if any,in the U.S. Consumer Price Index 4 1577 • Page: 13 of II 01111111111111111111111111 III III 06/30/200430• 09015:56( ChrisC.Munoz PuebloCtyClk&Reo WD R 76.00 D 0.00 for All Items-Urban Wage Earners and Clerical Workers (''CPI-W") (base year 1982-1984 - 100) (the "Index"). If the Index changes so the first year differs from that used in this Section,the Index shall be converted according to the conversion factor published by the United States Department of Labor,Bureau of Labor Statistics,to the 1982-84 base. If the Index is discontinued or revised,,such other governmental index or computation which replaces it shall be used to obtain substantially the same result as would be obtained if the Index had not been discontinued or revised. The Index published nearest to the first payment of the Common Area maintenance charge shall be the Beginning Index. The Index published nearest the Adjustment Date shall be the Adjustment Index. The Adjustment Date shall be the first day of the third (3rd).year of paying common area maintenance charges and every year thereafter. The base common area maintenance charges shall be adjusted as follows: On each Adjustment Date, the base common area maintenance charge shall be adjusted by multiplying the initial base common area maintenance charge under these Covenants by a fraction, the numerator of which is the applicable Adjustment Index and the denominator of which is the Beginning Index. Failure to pay the common area maintenance charge on or before its due date shall cause it to be delinquent. If a charge becomes delinquent,the HARP Authority may place a lien on the Property as provided above in Section 6.3. 7. Remedies Remedies at law may not adequately compensate the City for a violation of these Covenants. Therefore, City shall have the right to obtain from any court of competent jurisdiction injunctive relief against any owner or tenant of any of the Property, or any of their agents, contractors, or assigns, or enjoining any activity which is in violation of these Covenants. The City's right to such injunctive relief shall not be affected by arbitration provisions in contracts executed by such owner, tenant or their agents.The rights and remedies of City shall be in addition to,and not in lieu of,other rights and remedies City may have in the event of a violation of these Covenants. All such rights and remedies shall be cumulative,and the exercise of any one or more of such rights and remedies shall not be deemed an election precluding the exercise of any of the others.All reasonable costs incurred in any dispute or litigation involving enforcement of these Covenants(including expert witness fees and attorneys'fees)shall be awarded as additional damages to the prevailing party,who shall also be entitled to all such additional costs incurred in enforcing or collecting any judgment rendered. Venue for all litigation arising under these Covenants shall be in Pueblo County, Colorado. 8. Land Benefitted These Covenants shall run with and burden the Property and are for the benefit of City and all 5 1573070 1111111111111111 11111E11 III II Hill 1111 Page: 14 of 15 06/30/2004 09:560 ChrisC.Munoz PuebloCtyClk&Rec WD R 76.00 D 0.00 land.owned by City in the HARP Development. These Covenants shall be enforceable only by City and its specific assigns pursuant to Section 11 below. 9. Amendment These Covenants may be amended at any time by any instrument referring to these Covenants executed by City and the then current owners of at least 50 percent of the Property,which instrument is recorded with the Pueblo County Clerk and Recorder. These Covenants may also be amended with respect to any portion of the Property, but less than all of the Property, by a written instrument executed by all owners of the portion of the Property affected and by City,which instrument contains the legal description of the portion of the Property affected by the change. Amendments to these Covenants shall become effective upon their being recorded with the Pueblo County Clerk and Recorder. 10. Term These Covenants,and any amendments hereto,shall remain in effect for a period of 20 years from the date of the Deed and shall automatically be renewed for successive ten year periods unless, prior to the expiration of the initial term or any ten year extensions thereof, an instrument stating that extension is not desired,signed and acknowledged by at least fifty percent of the then owners of the Property and the City, is filed of record with the Pueblo County Clerk and Recorder. 11. Successors and Assigns The City may assign its rights and authority hereunder by an express written assignment referring to these Covenants, duly recorded. Any reference in these Covenants to City shall also mean any successors of the City pursuant to such assignment. If City makes such an assignment,it shall record an instrument in the real property records of Pueblo County, Colorado stating that its rights and authority under these Covenants have been assigned and setting forth the name and address of the assignee. 12. Notices Any notice or other document or materials required or permitted to be delivered under these Covenants shall be in writing and shall be deemed properly delivered upon receipt by the party to whom the same are to be delivered. Notices shall be addressed as follows: If to City, to Pueblo City Manager, Once City Hall Place, Pueblo, Colorado 81003, with a,with a copy to Thomas E. Jagger,City Attorney,501 N.MainStreet,4127,Pueblo,Colorado 81003-3124,and Mark J.Hess,Executive Director,HARP Authority,200 West 1 sr Street,Suite 303, Pueblo,Colorado 81003. 6 II 1573070 11 111 I 111111111 1111111 II Page: 15 of 15 06/30/2004 091:561 ChrisC.Munoz PuebloCtyClk&Reo WD R 76.00 D 0.00 If to Owner, to Mr. Gary Anzuini and Mrs. Ida Anzuini, 1605 Lynda Lane, Pueblo, Colorado, 81008. Either party may,by notice properly delivered,change the persons and address to which subsequent notices shall be delivered. CITY: PUEBLO,A MUNICIPAL CORPORATION / By: / . , -If STATE OF COLORADO) ) SS. COUNTY OF PUEBLO ) , The foregoing instrument was acknowledged before me on June 28 ,2004 ,by Pueblo, a Municipal Corporation, by Randy Thurston A PRI-41,644. ar-• auhe(� Witness my official hand and seal. . timriMy4 jommission Expires: August 18, 2007 0 7IITry ` .,,_C t No blic \ C. 0 ' 0 . U E? 1. . o hof CO' 7