HomeMy WebLinkAbout07147ORDINANCE NO. 7147
AN ORDINANCE APPROVING A LEASE PURCHASE AGREEMENT BETWEEN THE CITY OF
PUEBLO, A MUNICIPAL CORPORATION AND THE BISHOP OF PUEBLO, A CORPORATION
SOLE RELATING TO THE LAND COMMONLY KNOWN AS LEA GONZALES (PITTS) PARK,
VINEWOOD PARK, AND MOYNIHAN PARK, AUTHORIZING THE PRESIDENT OF THE CITY
COUNCIL TO EXECUTE SAME, AND TRANSFERRING FUNDS IN THE AMOUNT OF $65,170
FOR FISCAL YEAR 2004 ANNUAL RENT
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1
The Lease Purchase Agreement dated May 10, 2004 between the City of Pueblo, a
municipal corporation and The Bishop of Pueblo, a corporation sole relating to the lease and
purchase of the property commonly known as Lea Gonzales (Pitts) Park, Vinewood Park, and
Moynihan Park, a copy of which is attached hereto, having been approved as to form by the City
Attorney, is hereby approved.
SECTION 2
The President of the City Council is authorized to execute and deliver the Lease Purchase
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 3
No provision of this Ordinance or the Lease Purchase Agreement shall be construed or
interpreted as creating a general obligation or other indebtedness of the City within the meaning of
any constitutional, statutory or Charter debt limitation. No provision of this Ordinance or the Lease
Purchase Agreement shall be construed or interpreted as a delegation of governmental powers nor
as a donation by or a lending of the credit of City, or as creating a multiple - fiscal year direct or
indirect debt or other financial obligation whatsoever or a general obligation or other indebtedness
of the City within the meaning of any constitutional, statutory or Charter debt limitation, including,
without limitation, Article X, Section 20 or Sections 1, 2 or 6 of Article XI of the Constitution of the
State. Neither this Ordinance or the Lease Purchase Agreement shall directly or indirectly obligate
the City to make any payments beyond those appropriated for any fiscal year in which the Lease
Purchase Agreement shall be in effect. City shall be under no obligation to exercise its option to
purchase the Leased Property. No provision of this Ordinance or the Lease Purchase Agreement
shall be construed to pledge or to create a lien on any class or source of City's moneys, nor shall
any provision of this Ordinance or the Lease Purchase Agreement restrict the future issuance of
any of City's bonds or obligations payable from any class or source of City's moneys.
SECTION 4_
Funds in the amount of $65,170 are hereby transferred from the Conservation Trust Fund
Reserve to the Capital Improvement Fund for fiscal year 2004 annual lease payment.
SECTION 5
This Ordinance shall become effective upon final passage and approval.
INTRODUCED May 10, 2004
BY Michael Occhiato
Councilperson
D 0 0
e
Background Paper for Proposed
ORDINANCE
a9
AGENDA ITEM # +'
DATE: May 10, 2004
DEPARTMENT: Law Department
TITLE
AN ORDINANCE APPROVING A LEASE PURCHASE AGREEMENT BETWEEN
THE CITY OF PUEBLO, A MUNICIPAL CORPORATION AND THE BISHOP OF
PUEBLO, A CORPORATION SOLE RELATING TO THE LAND COMMONLY
KNOWN AS LEA GONZALES (PITTS) PARK, VINEWOOD PARK, AND
MOYNIHAN PARK, AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO
EXECUTE SAME, AND TRANSFERRING FUNDS IN THE AMOUNT OF $65,170
FOR FISCAL YEAR 2004 ANNUAL RENT
ISSUE
Should the City enter into the lease purchase agreement for the land commonly
known as Lea Gonzales (Pitts) Park, Vinewood Park, and Moynihan Park?
RECOMMENDATION
Approve the lease purchase agreement.
BACKGROUND AND FINANCIAL IMPACT
The City has for a number of years leased from the Bishop of Pueblo for park and
recreational purposes three park areas: Lea Gonzales (Pitts) Park (413,820 square
feet), Vinewood Park (227,383 square feet), and Moynihan Park (29,600 square
feet), or a total of 670,803 square feet. The Bishop of Pueblo desires to sell the
land and has given the City the first option to purchase. Since the City does not
have adequate funds to purchase the park land at this time, the Bishop of Pueblo
is willing to structure the purchase as a lease purchase arrangement for five (5)
one -year lease terms commencing January 1, 2004, with an option to purchase for
$1,077,000 during any lease term. The purchase price is based on the City's
appraised value of the park lands.
The annual rent for the park land is $65,170 per year which is equivalent to interest
at the rate of 6.05 percent per annum on the purchase price.
The lease purchase agreement will permit the City over four (4) additional years to
accumulate funds in the amount of the purchase price to purchase the park lands.
LEASE PURCHASE AGREEMENT
THIS LEASE PURCHASE AGREEMENT entered into as of May 10, 2004, between the
Bishop of Pueblo, a Corporation Sole, ( "Lessor ") and Pueblo, a Municipal Corporation, ( "Lessee "),
WITNESSETH:
In consideration of paying rent and keeping and performing the provisions of this Lease,
Lessor leases to Lessee with the option to purchase, and Lessee leases from Lessor with the option
to purchase, subject to and upon the terms and provisions of this Lease, the real property located in
the County of Pueblo, State of Colorado, described in the attached Exhibits "A ", "B" and "C ",
together with the interests, easements, rights, benefits, improvements and attached fixtures
appurtenant thereto, and all interest of Lessor in vacated streets and alleys adjacent thereto (herein
"Leased Property "). The description of the Leased Property maybe modified based upon an accurate
survey thereof. Any survey expense shall be paid by Lessee.
1. Lease Term and Renewals The term of this Lease shall commence January 1, 2004
and end December 31, 2004. The term of this Lease may be continued, solely, at the option of
Lessee, for four (4) successive renewal terms thereafter, each of one year in duration, except the final
renewal term, if the Lessor has continued to renew this Lease, shall terminate on December 31, 2008.
The option of Lessee to renew or not to renew this Lease shall be conclusively determined
by whether or not the City Council of Lessee, has on the December 31 immediately preceding the
commencement of any renewal term, budgeted and appropriated, specifically with respect to this
Lease, moneys sufficient to pay all of the rent and reasonable estimated other Lessee financial
obligations under this Lease for the ensuing renewal term.
In the event Lessee shall determine, for any reason, not to renew this Lease, Lessee shall give
written notice to such effect to Lessor not less than thirty (30) days prior to the end of the initial term
or the then current renewal term, provided, however, that a failure to give such notice shall not
constitute a default under this Lease, nor prevent Lessee from declining to renew this Lease, nor
result in any liability on the part of the Lessee.
2. Rent. As rent for the full and complete use of the Leased Property, Lessee shall pay
to Lessor annual rent of Sixty-Five Thousand One Hundred Seventy and No /100 Dollars
($65,170.00) payable in advance without notice, offset or demand on or before June 1, 2004 for the
initial term and for each renewal term on or before January 30 of each renewal term. Rent payable
hereunder shall not constitute a mandatory payment obligation of the Lessee in any fiscal year
beyond a fiscal year during which this Lease shall be in effect.
3. Title and Quiet Possession Lessor warrants and covenants that it has good and
marketable fee simple title to the Leased Property free from any liens and encumbrances, other than
Permitted Encumbrances described in section 13(b) of this Lease. Lessor covenants and agrees that
Lessee may peaceably and quietly enjoy the Leased Property, subject, however, to Lessee's
fulfillment of the covenants and agreements contained in this Lease. Lessee is leasing the Leased
Property "AS IS ", without any representation or warranty with respect to the Leased Premises and
its condition, whether environmental or otherwise, except warranty of title.
4. Lessee's Expression of Need and Determination as to Fair Market Value and Fair
Purchase Price Lessee hereby declares its current need for the Leased Property. It is hereby
declared to be the present intention and expectation of the City Council of Lessee that this Lease will
be renewed annually until title to the Leased Property is acquired by Lessee pursuant to this Lease;
but this declaration shall not be construed as contractually obligating or otherwise binding the Lessee
or the City Council. The Lessee hereby agrees and determines that the rentals hereunder during the
initial term and any renewal term represent the fair value of the use of the Leased Property; and that
the purchase option price represents the fair purchase price of the Leased Property. The Lessee
hereby determines that the rentals do not exceed a reasonable amount so as to place the Lessee under
an economic or practical compulsion to renew this Lease or to exercise its option to purchase the
Leased Property hereunder. In making such determinations, the Lessee has given consideration to
the value of the Leased Property, the uses and purposes for which the Leased Property will be
employed by the Lessee, the use and occupancy of the Leased Property pursuant to the terms and
provisions of this Lease, the option of the Lessee to purchase the Leased Property, and the expected
eventual vesting of title to the Leased Property in the Lessee. Lessee hereby determines and declares
that the leasing of the Leased Property pursuant to this Lease will result in facilities of comparable
quality and meeting the same requirements and standards as would be necessary if the acquisition,
improvement and equipping of the Leased Property were performed by Lessee. The Lessee hereby
determines and declares that the period during which the Lessee has an option to purchase the Leased
Property (i.e., the maximum term of this Lease including all renewal terms) does not exceed the
useful life of the Leased Property.
5. Payment to Constitute Currently Budgeted Expenditures of the City No provision
of this Lease shall be construed or interpreted as creating a general obligation or other indebtedness
of the Lessee within the meaning of any constitutional, statutory or Charter debt limitation. No
provision of this Lease shall be construed or interpreted as a delegation of governmental powers nor
as a donation by or a lending of the credit of Lessee, or as creating a multiple - fiscal year direct or
indirect debt or other financial obligation whatsoever or a general obligation or other indebtedness
of the Lessee within the meaning of any constitutional, statutory or Charter debt limitation,
including, without limitation, Article X, Section 20 or Sections 1, 2 or 6 of Article XI of the
Constitution of the State. This Lease shall not directly or indirectly obligate the Lessee to make any
payments beyond those appropriated for any fiscal year in which this Lease shall be in effect. Lessee
shall be under no obligation to exercise its option to purchase the Leased Property. No provision of
this Lease shall be construed to pledge or to create a lien on any class or source of Lessee's moneys,
nor shall any provision of this Lease restrict the future issuance of any of Lessee's bonds or
obligations payable from any class or source of Lessee's moneys.
6. Use. The Leased Property are to be used for public park, playground, or recreational
facility including the conducting of concessions upon a portion thereof.
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7. Fixtures and Improvements All equipment and fixtures, including without limitation,
fences, landscaping, backstops, seats, grandstands, poles and floodlights, which were previously,
presently or hereafter installed upon the Leased Property by or through Lessee, shall remain the
property of the Lessee and may be removed by Lessee at any time up to 30 days after termination of
this Lease, provided, however, that Lessee shall repair at its own expense damages to the Leased
Property caused by the removal of such items. All such equipment and fixtures left on the Leased
Property after such 30 -day period shall become the property of the Lessor.
8. Utilities For the initial term of this Lease, and all renewals thereof, Lessee shall pay
all charges for water, sewer and other utilities used on the Leased Property, and shall pay all lawfully
assessed general property taxes on the Leased Property.
9. Governmental Immunity Notwithstanding any other provisions of this Lease to the
contrary, no term or condition of this Lease shall be construed or interpreted as a waiver, either
expressly or implied, of any of the immunities, rights, benefits or protection provided to Lessee
under the Colorado Governmental Immunity Act §24 -10 -101, et seq., C.R.S., as amended or as may
be amended (including, without limitation, any amendment to such statute, or under any similar
statute which is subsequently enacted). The parties hereto understand and agree that liability for
claims for injuries to persons or property arising out of negligence of Lessee, or any department,
institution, agency, board, official, or employee of Lessee is controlled and limited by the provisions
of §24 -10 -101, et seq., C.R.S., as amended or as maybe amended. Any provision of this Lease,
whether or not incorporated herein by reference, shall be controlled and otherwise modified so as
to limit any liability of the parties to the above cited laws.
10. Insurance Lessee shall maintain commercial liability insurance in an amount equal
to the maximum amount that maybe recovered under the Colorado Governmental Immunity Act as
contained in C.R.S. §24 -10 -114, or as same may be amended, naming the Lessor as an additional
insured. Such insurance may be obtained by Lessee through its participation in CIRSA.
11. Holding Over If Lessee remains in possession of the Leased Property without written
agreement after expiration of the initial term or any renewal term, this Lease shall continue as a
month to month tenancy upon the same terms and conditions, except the option to purchase, subject
to termination by either party upon thirty (30) days prior written notice.
12. Termination If Lessee defaults in the performance of any provision of this Lease and
such default continues for a period of sixty (60) days after receipt by Lessee of a written notice from
Lessor specifying the default, or if the default cannot be corrected within said 60 -day period and the
Lessee fails to commence action to correct the default within said 60 -day period and thereafter
pursue corrective action to completion, Lessor may terminate this Lease upon thirty (30) days prior
written notice to Lessee, and upon such termination Lessee will immediately surrender possession
of the Leased Property to Lessor.
13. Option to Purchase Unless in default in the payment of rent under this Lease, Lessee
M11
shall have the right and option to purchase the Leased Property for a purchase price of One Million
Seventy -Seven Thousand and No/ 100 ($1,077,000.00) ( "Purchase Price ") during the initial term, and
if renewed by Lessee, during each renewal term upon the following conditions and covenants:
(a) Lessee shall give notice to Lessor of Lessee's exercise of this option in
writing during the initial term or any renewal term but in no event later than December 31,
2008 ( "Lessee's Notice ").
(b) Lessor shall convey good and marketable fee simple title to the Leased
Property to Lessee by general warranty deed, free and clear of encumbrances, liens and taxes,
subject only to easements, rights -of -way, restrictions, reservations and covenants of record
on January 1, 2004, unrecorded easement to the Board of Water Works of Pueblo, Colorado
described in attached Exhibit "D'; and liens and encumbrances created by the acts or defaults
of Lessee ('Permitted Encumbrances ").
(c) Within twenty (20) days after receipt of Lessee's Notice, Lessor, at its cost,
shall furnish to Lessee a current ALTA owner's title insurance commitment, committing to
insure good and marketable fee simple title in the name of Lessee in the amount of the
Purchase Price, subject only to Permitted Encumbrances ( "Commitment "). Written notice
by Lessee of unmarketability of title shown by the Commitment shall be given to Lessor on
or before twenty (20) days after Lessee's receipt of the Commitment and legible copies of
all exceptions referenced in the Commitment. If Lessor does not receive Lessee's notice
within the time specified, Lessee accepts the condition of title as disclosed by the
Commitment. If Lessor receives notice of unmarketability of title, Lessor shall use
reasonable efforts to correct the items and title conditions set forth in such notice and bear
any nominal expense to correct same prior to Closing. If such title conditions are not
corrected on or before closing, this option to purchase shall then terminate, provided,
however, Lessee may, by written notice given to Lessor, on or before Closing, waive
objections to title.
(d) Closing shall be on or before forty (40) days after the date Lessor has
delivered the Commitment and legible copies of exceptions to Lessee, at a time, hour and
place mutually selected by Lessor and Lessee.
(e) At Closing Lessee shall deliver the Purchase Price to Lessor in certified
check, cashier's check or electronic transfer funds ( "Good Funds ") and Lessor shall deliver
to Lessee the general warranty deed duly executed and acknowledged in recordable form.
(f) Time is of the essence hereof, and this option to purchase maybe specifically
enforced by Lessee.
(g) Lessor and Lessee shall pay, in Good Funds, their respective Closing costs
and other items required to be paid at Closing. Lessor and Lessee shall complete and sign
me
all customary or reasonably required documents at or before Closing. Fees for real estate
Closing services shall be paid at Closing, one - halfby Lessor, and one -half by Lessee. Lessor
shall pay all costs of title insurance and shall cause the title insurance policy to be delivered
to Lessee as soon as practicable after Closing.
14. Notices All notices required under this Lease shall be deemed to be properly served
if delivered in writing personally or sent by certified mail to the Bishop of Pueblo, a Corporation
Sole, 1001 N. Grand Avenue, Pueblo, Colorado, 81003, with a copy to Barbara J. Duff, Director of
Business and Finance, 1001 N. Grand Avenue, Pueblo, Colorado, 81003, or to Lessee at 1 City Hall
Place, Pueblo, Colorado, 81003, Attention: City Manager, with a copy to Thomas E. Jagger, City
Attorney, 503 N. Main Street, Suite 127, Pueblo, Colorado, 81003, or to any subsequent address or
person which either party may designate in writing for such purpose.
15. Binding Effect This Lease shall be binding upon and inure to the benefit of Lessor
and Lessee and their respective successors and assigns.
16. No Third Party Beneficiary Nothing in this Lease expressed or implied is intended
or shall be construed to confer upon, or to give to, any person other than the Lessor or Lessee any
right, remedy or claim under or by reason of this Lease or any covenant, condition or stipulation
hereof, and all the covenants, stipulations, promises and agreements in this Lease contained by and
on behalf of the Lessee or Lessor shall be for the sole and exclusive benefit of the Lessee and Lessor.
17. Severability In the event any provision of this Lease shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
18. Amendments This Lease may only be amended by written instrument executed by
Lessor and Lessee.
Executed at Pueblo, Colorado, the date and year first above written.
LESSOR:
BISHOP OF PUEBLO,
A CORPORATION SOLE
By w
+Bishop Arthur N. Tafoya
Bishop of Pueblo
LESSEE:
APPROVED AS TO FORM: PUEBLO, A MUNICIPAL CORPORATION
-5-
By
City Attorney President of thqCity Council - Randy Thurston
Attest:
City C �k
ME
Beginning at a stone located at the intersection of the centerline of Fordham Drive and Lehigh
Avenue according to the recorded plat of Sunset Park, Eleventh Filing; thence N. 00° 07' 39" E.
along said Centerline of Fordham Drive a distance of 952.13 feet to the centerline of Fordham
Circle; thence N. 87 W. along said Centerline and along said centerline extended a distance
of 500.27 feet to the centerline of Pueblo Blvd.; thence S. 02 54' 39" W. along said centerline of
Pueblo Blvd. a distance of 17.13 feet; thence S. 00'03'09" W. and continuing along said centerline
of Pueblo Blvd. a distance of 959.46 feet to the centerline of Lehigh Avenue; thence S. 89° 52' 21 "
E. along said centerline of Lehigh Avenue a distance of 499.25 feet to the point of beginning; except
the south 40' thereof, which has heretofore been dedicated to public use as a port of Lehigh Avenue
at the time of approval of Sunset Park, 24th Filing, and except the east 30' thereof, which has
heretofore been dedicated to public use as a portion of Fordham Drive at the time of approval of
Sunset Park, 11 th Filing, consisting of 8.65 acres of undeveloped land. Less the portion sold under
warranty deed recorded November 17, 1995, Reception No. 1100994, Book 2846 at Page 730.
Also known as Pitts Park.
EXHIBIT A -
Block 70 Highland Park 20th. Also known as Vinewood Park.
EXHIBIT B
All of the S.W. 200 feet of Block 118 in the former town of South Pueblo, now apart of the City of
Pueblo, according to the recorded plat thereof, EXCEPT: the Northeasterly 14 feet of Lot 30, all of
Lot 28 and 29, and the Northeasterly 20 feet of Lot 25 and that portion of the vacated alley adjacent
to the Northeasterly 20 feet of Lot 25 to the center line of said vacated alley. Also known
Moynihan Park, 300 Spring Street, Pueblo, Colorado.
EXHIBIT C -
EASEMENT
THIS EASEMENT is granted on , 2000, by The Bishop
of Pueblo, a Corporation Sole, 1001 N. Grand Avenue, Pueblo, Colorado 81003
(Grantor) to Board of Water Works of Pueblo, Colorado (Grantee).
RECITALS
In consideration of Ten Dollars ($10) and other good and valuable consideration,
the receipt and sufficiency of which is acknowledged by Grantor, Grantor grants and
conveys to Grantee and its successors an easement to construct, maintain, change,
renew and operate an impressed current cathodic protection system over, upon, along
and under a strip of land owned by the grantor in the County of Pueblo, State of
Colorado, described as follows:
A parcel of land located in Section 10, T 21 S, R 65 W,
being twenty (20) feet in width, ten 0 0) feet on each side
of the following described centerline:
Beginning at the Southwesterly corner of Lot 17, Block 34,
Sunset Park Twenty -fifth filing, thence S 02 0 54'39" W
along the Easterly right -of -way line of Pueblo Boulevard
(Basis of Bearing, as recorded in Deed from Pueblo, a
Municipal Corporation, to Charles A. Buswell, Bishop of
Pueblo, Book 1820, Pages 630 -635) seventeen and 13/100
(17.13) feet; thence S 00 03' 09" W, seven and 88/100
(7.88) feet to the Point of Beginning; thence S 870 04; 21:
E, two hundred (200.0) feet to the Point of Terminus.
1. Grantor reserves the right to use the Property for purposes not inconsistent
with the rights granted in this Easement. Grantor's rights shall in no event include the
right to locate or erect or cause to be located or erected on the Property any building,
structure or manufactured home.
2. Grantor grants to Grantee the right to enter the Property for purposes of
construction, replacement, maintenance, control and repair.
3. Grantee shall perform all required maintenance and repairs for the power and
electricity in this easement.
4. Grantee shall restore Grantor's property damaged during Grantee's
construction, maintenance or repair to as near the original condition as reasonably
possible.
EXHIBIT D -
5. This easement shall run with the land and be binding upon and inure to
the benefit of the Grantee and the Grantor and their successors.
GRANTOR:
The Bishop of Pueblo, a Corporation Sole
STATE OF COLORADO) +Arthur N. Tafoya
) SS.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before me on
2000, by Arthur N. Tafoya for The Bishop of Pueblo, a Corporation Sole.
Witness my official hand and seal.
My Commission Expires:
STATE OF COLORADO)
) SS.
COUNTY OF PUEBLO )
Notary Public
GRANTEE:
BOARD OF
COLORADO
WATER WORKS OF PUEBLO,
The foregoing instrument was acknowledged before me on
2000, by , Board of Water Works of Pueblo, Colorado.
Witness my official hand and seal.
My Commission Expires:
Notary Public