HomeMy WebLinkAbout08038ORDINANCE NO. 8038
AN ORDINANCE APPROVING AN AGREEMENT
BETWEEN THE CITY OF PUEBLO, BOARD OF COUNTY
COMMIS - SIONERS OF PUEBLO COUNTY, COLORADO,
AND URBAN RENEWAL AUTHORITY OF PUEBLO
RELATING TO THE TRANSFER AND REDEVELOPMENT
OF THE PUEBLO CITY - COUNTY HEALTH DEPARTMENT
SITE AND AUTHORIZING THE PRESIDENT OF THE CITY
COUNCIL TO EXECUTE SAME
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO. that:
SECTION 1
The Agreement between the City of Pueblo, Board of County Commissioners of
Pueblo County, Colorado, and Urban Renewal Authority of Pueblo dated as of July 27,
2009 relating to the transfer and redevelopment of the Pueblo City- County Health
Department site ( "Agreement'), 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 the Agreement and
Special Warranty Deed described therein in the name of the City and the City Clerk is
directed to affix the seal of the City thereto and attest same. The City Attorney is
authorized to execute all real estate closing documents required for the transfer of the
site.
SECTION 3
This Ordinance shall become effective upon final passage and approval.
A77TSTDD SY:
CITY CLERK
INTRODUCED: July 13, 2009
BY: Barbara Vidmar
COUNCIL PERSON
APPR D' } �.
PRESIDENTaf Cfty Council
PASSED AND APPROVED: July 27. 2009
ED
Background Paper for Proposed
ORDINANCE
AGENDA ITEM # Q -4
DATE: July 13, 2009
DEPARTMENT: Law Department
TITLE
AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO,
BOARD OF COUNTY COMMISSIONERS OF PUEBLO COUNTY, COLORADO, AND
URBAN RENEWAL AUTHORITY OF PUEBLO RELATING TO THE TRANSFER AND
REDEVELOPMENT OF THE PUEBLO CITY - COUNTY HEALTH DEPARTMENT SITE
AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME
ISSUE
Should City Council approve the agreement for transfer of the Pueblo City- County
Health Department site to the Urban Renewal Authority of Pueblo?
RECOMMENDATION
Approve the Agreement.
BACKGROUND
The Ordinance approves an agreement between the City, County and Urban Renewal
Authority of Pueblo ( "Authority ") for transfer of the Pueblo City- County Health
Department site to the Authority. The site will be transferred to the Authority for
temporary parking use and future development. City and County must approve any
proposed redevelopment by the Authority. The Authority is not paying any money for
the transfer but is responsible for demolition and clearance of the site, removal and
disposal of hazardous materials, and preparing the site for parking use. The transfer is
subject to title review and inspection by the Authority. The transfer will be "AS IS" WITH
ALL ITS FAULTS." Neither the City nor County will make any warranty or
representation as to the condition of the site, environmental or otherwise. Prior to
closing on or before November 18, 2009, City and County may remove personal
property and fixtures from the Health Department building and site as they may elect to
remove.
FINANCIAL IMPACT
See Background.
R
TRI -PARTY REDEVELOPMENT AGREEMENT
CITY - COUNTY HEALTH DEPARTMENT SITE
PUEBLO EXPANDED URBAN RENEWAL PROJECT
1.0 PARTIES The parties to this Agreement (the "Agreement') are the CITY OF PUEBLO,
a Colorado Municipal Corporation (the "City "); THE BOARD OF COUNTY COMMIS-
SIONERS OF PUEBLO COUNTY, COLORADO, a political subdivision of the State of
Colorado (the "County "); and the URBAN RENEWAL AUTHORITY OF PUEBLO, a body
corporate and politic of the State of Colorado (the "Authority ") (the parties are also referred to
collectively as the "Parties" or individually, a "Party").
2.0 RECITALS The Recitals to this Agreement are incorporated herein by this reference as
though fully set forth in the body of this Agreement.
2.01 The Intergovernmental Agreement The City and the County entered into an
intergovernmental agreement dated October 11, 1983 (the "IGA ") governing the operation of a
combined City and County Health Department on the real property described in Exhibit A,
attached to and made a part hereof (the "Property "). Pursuant to Paragraph 9 of the IGA, if the
Property is not used and occupied by the Pueblo City - County Health Department as a health
department, the Property may be disposed of by mutual agreement of the City and the County.
The City and the County have made arrangements for operation of the health department at a
different location and desire to enter into this agreement to provide for the disposition of the
Property with the cooperation of the Authority. Upon the Closing specified in Section 4.04,
Paragraph 9 of the IGA shall terminate and become null and void in its entirety.
2.02 The Urban Renewal Plan On March 24, 2004, by Ordinance No 7113, as
modified by Ordinance No. 7186, the City approved the urban renewal plan (the "Plan") for the
for the Pueblo Expanded Urban Renewal Project (the "Urban Renewal Project'), which Plan is
being carried put by the Authority in accordance with the provisions of the Colorado Urban
Renewal Law (the "Act'). The Property is located within the boundaries of the Urban Renewal
Project. Pursuant to Section 31 -25 -112 of the Act, the City and County are authorized to
cooperate with the Authority to carry out the Urban Renewal Project as provided in this
Agreement.
2.03 Purpose The Parties desire to enter into this Agreement to provide for the
transfer of the Property to the Authority for clearance, remediation of any environmental
problems on the site, conveyance and temporary use as a surface parking site, and redevelopment
of the Property for uses in accordance with the Plan and the Act.
3.0 TERMS AND CONDITIONS In consideration of the mutual covenants and promises of
the Parties contained herein, and other valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Parties agree as set forth in this Agreement.
4.0 AGREEMENT TO CONVEY Upon the terms and conditions set forth in this Agreement,
the City and the County agree to convey, transfer, grant and deliver the Property to the Authority
and the Authority agrees to accept and receive the Property from the City and the County.
4.01 Title Insurance Commitment Within thirty (30) days after the date of this
Agreement, the City and the County shall provide the Authority with a standard ALTA form
commitment for owner's title insurance (the "Commitment ") for the Property issued by Land
Title Guarantee Company (the "Title Company "), together with legible copies of all recorded
title exceptions referred to in the Commitment. The Title Company shall promptly deliver
copies of the Commitment, Commitment updates and title documents described in the
Commitment to the Parties.
a. Commencing on the date the Commitment and related documents
(including any subsequent endorsements that add any exceptions to title) are delivered to the
Authority, the Authority shall have thirty (30) days to review the Commitment and any
endorsements thereto and approve or disapprove any matter that does not conform with Section
4.02. If the Authority disapproves any such matter affecting title to the Property, the Authority,
within said 30 -day period, shall notify the City and the County in writing of such defect. The
City and the County shall have thirty (30) days from the date of such notice to correct such
defect. If, upon the expiration of said 30 -day period, the City and the County have not corrected
any such title defect to the Authority's reasonable satisfaction, or, in the case of a defect
unacceptable to the Authority, if such defect cannot be corrected in such time, and the City and
the County have not commenced and are not pursuing reasonable action to cure or correct such
defect, the Authority may, at its option, terminate the Agreement or waive the defect, by written
notice given to the City and the County not less than fourteen (14) days prior to Closing.
b. If the Authority fails to notify the City and the County of any defect in
title as herein required, title shall be deemed acceptable, and the Agreement shall remain in full
force and effect.
C. The Title Company shall provide to the Parties, at least five (5) days prior
to the Closing, an updated Commitment and a written agreement assuring the Authority that the
Title Company will insure against matters affecting title objected to by Authority (which have
not been previously accepted or waived by Authority) and that came of record or are otherwise
discovered (and which are not due to the activities of Authority) since the date of the last
Commitment and the date upon which the City and the County deliver the Deed and the time of
the recording of the Deed. It shall not be necessary for the Authority to object to any title
matters to which the Authority has previously objected that appear on any subsequent
Commitment update. Such items shall be deemed to have been objected to by Authority and
subject to the cure provisions of this Agreement as of the date of the original objection by the
Authority.
d. Notwithstanding any provision contained in the Agreement to the
contrary, the City and the County shall have no duty or obligation to cure or correct any title
defect or to expend any funds therefor.
4.02 Condition of Title The City and the County shall convey fee simple marketable
title to the Property to the Authority, subject to the following provisions. Title to the Property
shall be free and clear of all liens, defects and encumbrances, except those arising by reason of:
(a) the Agreement, (b) the Plan, (c) those defects approved, waived or accepted by the Authority,
and (c) all rights -of -way, easements, restrictions, reservations, covenants and conditions of
record whether approved, waived or accepted by Authority (herein collectively "Permitted
Encumbrances ").
4.03 Special Warranty Deed At the Closing set forth in Section 4.04, the City and the
County shall deliver to the Authority a special warranty deed (the "Deed "), subject only to the
Permitted Exceptions described in Section 4.02.
4.04 Closing Subject to satisfaction of all conditions to Closing and contingencies set
forth in this Agreement, the Closing shall occur on or before November 18, 2009.
Notwithstanding anything contained herein to the contrary, Closing may be extended upon
written agreement of the Parties. After Closing, the City and the County shall cause the Title
Company to record the Deed with the Clerk and Recorder for Pueblo County, Colorado. The
Authority shall pay all recording costs, including the state documentary fee, if any. There will be
no cash consideration for such conveyance, it being understood by the Parties that the
consideration for such conveyance shall be the demolition of existing improvements, remediation
of any environmental conditions on the Property and redevelopment of the Property as provided
herein. The City and the County shall not have any responsibility for Closing costs and the
Authority shall bear all costs of Closing.
4.05 Title Insurance Policy Promptly after recordation of the Deed, the Title
Company shall issue the title insurance policy in accordance with the Commitment. The
Authority shall be responsible for all costs of title insurance commitments, policies and
endorsements.
5.0 REMOVAL OF PERSONAL PROPERTY AND FIXTURES: POSSESSION Prior to
the Closing, the City and the County shall be permitted to remove such personal property and
fixtures from the Property and the improvements thereon as they may elect to remove. All such
personal property and fixtures remaining on the Property as of the date of Closing shall become
the property of the Authority. Title to and possession of the Property and all improvements
thereon shall be delivered to the Authority as of the date of the Closing.
6.0 SPECIAL DISTRICT DISCLOSURE (Required by statute) SPECIAL TAXING
DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION INDEBTEDNESS THAT IS
PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE
PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS
MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND EXCESSIVE TAX
BURDENS TO SUPPORT THE SERVICING OF SUCH DEBT WHERE CIRCUMSTANCES
ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCH
INDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL LEVIES. PURCHASERS
SHOULD INVESTIGATE THE DEBT FINANCING REQUIREMENTS OF THE
AUTHORIZED GENERAL OBLIGATION INDEBTEDNESS OF SUCH DISTRICTS,
EXISTING MILL LEVIES OF SUCH DISTRICT SERVICING SUCH INDEBTEDNESS,
AND THE POTENTIAL FOR AN INCREASE IN SUCH MILL LEVIES.
7.0 ACCESS TO PROPERTY; INSPECTIONS; RIGHT TO TERMINATE The City the
County hereby grant to the Authority, its agents, employees, contractors and/or consultants, the
right to enter upon the Property at all reasonable times after the Property has been vacated by the
Pueblo City - County Health Department and pending Closing for the purposes of conducting
inspections, surveys, engineering studies, soil tests, groundwater tests, drainage studies,
environmental audits, studies and tests, estimates and bids of the cost of environmental mitigation
and remediation, demolition, clearance, and site preparation, and any other test, study or
examination which the Authority may elect in connection with its analysis of the Property (herein
collectively "Testing "), at the Authority's sole expense. Authority shall keep all Testing results
confidential and, promptly upon receipt, shall deliver copies of all of such Testing results to the
City and the County. The Authority shall give the City and the County reasonable advance
notice prior to any entry, and Testing conducted on the Property shall be undertaken in a safe,
workmanlike and reasonable manner, and in compliance with all laws. If requested by the City
or the County, the Authority shall restore the Property to its condition prior to any Testing made
by the Authority. To the extent permitted by law, the Authority shall defend, indemnify, protect
and hold the City and the County harmless from any and all liability, loss, cost, damage or
expense which the City or the County may sustain or incur by reason of such entry and Testing
(including without limitation mechanic's liens). All such Testing shall be completed on or
before October 15, 2009.
If as a result of the foregoing Testing, the Authority determines that the condition of the Property
and improvements or the cost of environmental cleanup, mitigation, or remediation, demolition,
clearance, or site preparation make the acquisition of the Property by the Authority impractical in
the opinion of the Authority, reasonably exercised, the Authority shall have the right to terminate
this Agreement by giving notice to the City and the County not less than fourteen (14) days prior
to the Closing.
8.0 "AS IS" NATURE OF TRANSACTION The Authority acknowledges and agrees that,
except as expressly contained in this Agreement, neither the City, the County, nor anyone acting
for or on behalf of the City or the County has made any representation, statement, warranty or
promise concerning the physical aspects or condition of the Property, the feasibility, desirability,
or adaptability of the Property for any particular use, or the projected income or expenses for the
Property, and that in entering into this Agreement, the Authority has not relied on any
representation, statement or warranty by the City or the County or anyone acting for or on behalf
of the City or the County, all matters concerning the Property to have been independently
verified by the Authority, and that the Authority is acquiring the Property based on its own
inspection and examination thereof, in an "AS IS" condition, "WITH ALL FAULTS'; and that
the City and the County hereby waive and disclaim all warranties of any type or kind whatsoever
with respect to the condition or use of the Property, express or implied, including by way of
description but not limitation, those of fitness for a particular purpose, tenantability, habitability
and use.
9.0 NO ENVIRONMENTAL REPRESENTATIONS For the purpose of this Agreement,
"Environmental Laws" means any and all statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, grants, franchises, licenses or agreements relating to the
environment or the Release (as defined in any such Environmental Law) of any Hazardous
Substance into the environment and "Hazardous Substance" means any substance, material or
waste that is included within the definitions of hazardous substances, hazardous materials,
hazardous waste, toxic substances, toxic materials, toxic waste or words of similar import in any
Environmental Law. The City or the County have not made, do not make and specifically negate
and disclaim any representations, warranties, covenants or guarantees of any kind, whether
express or implied, concerning or with respect to (a) the presence of Hazardous Substances on, in
or under the Property or migrating to or from the Property, or compliance of the Property with
any and all applicable Environmental Laws and (b) the value, nature, quality or condition of the
water, soil and geology of the Property. The Authority acknowledges and agrees that the sale of
the Property, as provided for herein, is made on an "AS IS" condition and basis with respect to
the existence of Hazardous Substances and the condition of the water, soil, and geology of the
Property. The Authority and anyone claiming by, through or under the Authority hereby fully
and irrevocably release the City and the County, their council members, commissioners,
employees, attorneys, representatives, consultants, agents and successors from any and all claims
that it may now have or hereafter acquire against the City, the County, or their council members,
commissioners, employees, attorneys, representatives, consultants, agents and successors for any
cost, loss, liability, damage, expense, claim, demand, action or cause of action arising from or
related to any such defects and conditions, including, without limitation, compliance with
Environmental Laws, affecting the Property or any portion thereof. It is understood and agreed
that the Purchase Price has been adjusted by prior negotiation to reflect that all of the Property,
or any part thereof, is transferred by the City and the County and accepted by the Authority
subject to the provisions of this Section 9.0 and Section 8.0.
10.0 DUTIES OF THE AUTHORITY The Authority shall have the following duties with
respect to the Property and the improvements thereon.
10.01 Demolition and Clearance of the Property Promptly after the Closing the
Authority shall demolish and clear the improvements from the Property.
10.02 Environmental Remediation The Authority shall be responsible for removal and
disposal of all Hazardous Substances from the Property and the improvements thereon as may be
required by applicable Environmental Laws.
10.03 Temporary Parking Use The Authority may use the Property for temporary
surface parking on such terms and conditions as the Authority may determine consistent with and
subject to all applicable laws and ordinances.
10.04 Disposition for Redevelopment The Authority shall dispose of the Property for
redevelopment in accordance with the Act and the Plan for uses consistent with and subject to all
applicable laws and ordinances. Prior to entering into any agreement for disposition of the
Property, the City and the County shall be given an opportunity to review and approve such
proposed disposition, which approval shall not be unreasonably withheld conditioned or delayed,
and except for such approval, nothing herein shall be construed as a delegation of the duties of
the Authority under the Act.
11.0 ASSIGNMENT This Agreement shall not be assigned by any Party without the prior
written consent of the other Party.
12.0 NOTICES Any notice required or permitted by this Agreement shall be in writing and
shall be deemed to have been sufficiently given for all purposes if delivered in person, by
prepaid overnight express mail or reputable overnight courier service, by certified mail or
registered mail, postage prepaid return receipt requested, addressed to the Party to whom such
notice is to be given at the address set forth on the signature page below, or at such other address
as has been previously furnished in writing, to the other Party.
13.0 EXHIBITS All exhibits referred to in this Agreement, if any, are by reference
incorporated herein for all purposes.
14.0 DELAYS Any delays in or failure of performance by any Party of its obligations under
this Agreement shall be excused if such delays or failure are a result of acts of God, fires, floods,
strikes, labor disputes, accidents, regulations or order of civil or military authorities, shortages of
labor or materials, or other causes, similar or dissimilar, which are beyond the control of such
Party.
15.0 DEFAULT Subject to Section 14.0 above, if any payment or any other material
condition, obligation, or duty is not timely made, tendered, or performed by any Party, then any
non - defaulting Party may seek any remedy available at law or in equity, including damages,
court costs, and attorney fees as may be proper. No Party shall have the right to recover special,
consequential or exemplary damages. No commissioner, council member, official, employee,
attorney, or agent of the City, the County, or the Authority shall be personally liable under this
Agreement.
16.0 SECTION CAPTIONS The captions of the sections are set forth only for the
convenience and reference of the Parties and are not intended in any way to define, limit, or
describe the scope or intent of this Agreement.
17.0 ADDITIONAL DOCUMENTS OR ACTION The Parties agree to execute any
additional documents or take any additional action that is necessary to carry out this Agreement
or is reasonably requested by any other Party to confirm or clarify the intent of the provisions
hereof and to effectuate the agreements herein contained and the intent hereof.
18.0 AMENDMENT This Agreement may be amended only by an instrument in writing
signed by the Parties.
19.0 WAIVER OF BREACH A waiver by any Party to this Agreement of the breach of any
term or provision of this Agreement must be in writing and shall not operate or be construed as a
waiver of any subsequent breach by any Party.
20.0 GOVERNING LAW This Agreement shall be governed by the laws of the State of
Colorado and venue for any litigation shall be Pueblo County, Colorado.
21.0 BINDING EFFECT This Agreement shall inure to the benefit of and be binding upon
the Parties and their respective legal representatives, successors, heirs, and assigns, provided that
nothing in this paragraph shall be construed to permit the assignment of this Agreement except
as otherwise expressly authorized herein.
22.0 EXECUTION IN COUNTERPARTS This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall constitute but one
and the same instrument.
23.0 NO THIRD -PARTY BENEFICIARIES This Agreement is intended to describe the
rights and responsibilities only as to the Parties hereto. This Agreement is not intended and shall
not be deemed to confer any rights on any person or entity not named as a Party hereto.
24.0 NO PRESUMPTION The Parties to this Agreement and their attorneys have had a full
opportunity to review and participate in the drafting of the final form of this Agreement.
Accordingly, this Agreement shall be construed without regard to any presumption or other rule
of construction against the Party causing the Agreement to be drafted.
25.0 MINOR CHANGES This Agreement has been approved in substantially the form
submitted to the governing bodies of the Parties. The officers executing this Agreement are
authorized to make and may have made, minor changes to this Agreement and attached exhibits
as they have considered necessary. So long as such changes were consistent with the intent and
understanding of the Parties at the time of approval by the governing bodies, the execution of the
Agreement shall constitute the approval of such changes by the respective Parties.
26.0 DAYS If the day for any performance or event provided for herein is a Saturday, a
Sunday, a day on which national banks are not open for the regular transactions of business, or a
legal holiday pursuant to Section 24 -11- 101(1), C.R.S., such day shall be extended until the next
day on which such banks and state offices are open for the transaction of business.
27.0 GOOD FAITH OF PARTIES In the performance of this Agreement or in considering
any requested approval, acceptance, or extension of time, the Parties agree that each will act in
good faith and will not act unreasonably, arbitrarily, capriciously, or unreasonably withhold,
condition, or delay any approval, acceptance, or extension of time required or requested pursuant
to this Agreement.
28.0 PARTIES NOT PARTNERS Notwithstanding any language in this Agreement or any
other agreement, representation, or warranty to the contrary, the Parties shall not be deemed to be
partners or joint venturers, and no Party shall be responsible for any debt or liability of any other
Party.
29.0 MERGER The provisions of Sections 8.0, 9.0 and 10.0 shall survive the Closing and
shall not merge or be deemed to have merged into the Special Warranty Deed.
IN WITNESS WHEREOF, this.Agreement is executed by the Parties hereto in their respective
names as of July 27, 2009.,
PUEBLO. A MUNICIPAL CORPORATION
ATTEST: �-
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By:
President of the City Council
#1 City Hall Place
Pueblo, CO 81003
THE URBAN EWAL AUTHORITY
OF PUEBLO
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Pueblo, CO 81003
PUEBLO COUNTY COLORADO
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Chairman
215 W. 10` Street
Pueblo, CO 81003
EXHIBIT A
DESCRIPTION OF PROPERTY
Legal Description for City -County Health Department located at 151 Central Main Street
Lot 17, Kretschmer's Subdivision of Fractional Block 44 of the Original City of Pueblo,
according to the recorded plat thereof, filed for record March 1, 1882
AND
Lots 1 through 5, Block 62, Hobson's Subdivision Amended, according to the recorded plat
thereof, filed for record October 26, 1887
AND
Lots 13 through 18, Block 5, in the former Town of Central Pueblo, now a part of the City of
Pueblo, according to the recorded plat of said Town, filed for record August 13, 1883; less that
portion of Lot 13 as platted within the Historic Arkansas Riverwalk Project, Filing No. One,
filed for record July 20, 1999.
Exhibit A