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HomeMy WebLinkAbout7610RESOLUTION NO. 7610 A RESOLUTION APPROVING ADDENDUM NO. 2 BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND ZUPAN ENTERPRISES, INC. RELATING TO THE SOUTHSIDE LANDFILL BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 Addendum No. 2 dated April 24, 1995 between Pueblo, a municipal corporation and Zupan Enterprises, Inc., a Colorado corporation, 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 in the name of the City Addendum No. 2 and the quit claim deed described in paragraph 4 of Addendum No. 2 and the City Clerk is authorized and directed to affix the seal of the City thereto and attest same. ATTEST: Cit Clerk INTRODUCED: April 24, 1995 By CHA- ES JONES Councilperson APPROVED: President of the City Council ADDENDUM NO. 2 THIS ADDENDUM NO. 2 entered into as of April 24, 1995 between Pueblo, a Municipal Corporation (the "City ") and Zupan Enterprises, Inc., a Colorado corporation (the "Zupan "), WITNESSETH: WHEREAS, City and Zupan entered into a Purchase Agreement dated April 22, 1991 (the "Purchase Agreement ") and Addendum No. 1 dated June 14, 1993 (the "Addendum No. 1 "), concerning the purchase and operation of a solid waste landfill (collectively the "Agreements "), and WHEREAS, by Addendum No. 1 City agreed to transfer twenty -four (24) acres of land to Zupan in exchange for five (5) years of free government landfill use, and WHEREAS, the twenty-four (24) acres of land to be transferred because of topography and other conditions will not extend the use of the landfill for the anticipated five (5) years, and WHEREAS, City owns approximately 40 acres of land adjacent to the twenty-four (24) acres of land proposed to be transferred by Addendum No. 1, and WHEREAS, Zupan owns approximately 75 acres of land adjacent to a portion of the landfill owned by the City, and WHEREAS, Zupan is willing to exchange its 75 acres of land for City's additional 40 acres of land and in addition permit City to use the landfill without fees or charges for the remaining life of the landfill including City's land to be transferred to Zupan, and WHEREAS, Zupan and City are desirous of modifying the Agreements. NOW, THEREFORE, in consideration of the foregoing and the following covenants and conditions, City and Zupan agree as follows: 1. Except as otherwise provided herein, all words and phrases defined in the Purchase Agreement shall have the same meaning in this Addendum No. 2. 2. (a) Notwithstanding any provision of the Agreements to the contrary, Zupan grants to the City the right to utilize the Landfill for governmental use. As long as Zupan, its successors or assigns operate and conduct Solid Waste Disposal Operations within the Landfill, Zupan will accept Solid Waste and wastewater treatment plant sludge (biosolids) generated by the City and any of its departments or agencies without fee or charge except Colorado User Fees imposed by §25 -16 -104.5 C.R.S., or as same may be subsequently amended. For purposes of this Addendum No. 2 the term "Landfill" means and includes Phase II and III and Borrow Area consisting of approximately 90 acres acquired by Zupan from the City under the Purchase Agreement, the approximately 24 acres to be transferred to Zupan under Addendum No. 1 and the approximately 39.25 acres to be transferred to Zupan pursuant to this Addendum No. 2. If Zupan conducts Solid Waste Disposal Operations on Zupan's Land other than at the Landfill, Zupan agrees to grant to City a discount for use of such solid waste disposal site and facility in an amount to be determined by mutual agreement of City and Zupan. (b) Wastewater treatment plant sludge (biosolids) generated by the City and its departments and agencies for disposal at Landfill shall be subject to the following restrictions: (i) Not more than 80 cubic yards of biosolids shall be delivered on any one day; (ii) No load of biosolids shall be delivered to Landfill after 4:00 o'clock p.m. on any day, according to the applicable time standard then in effect; and (iii) Biosolids will not be delivered to the Landfill until after a 90 -day stabilization period, i.e., storage of biosolids for 90 days after removal from City's centrifuges. 3. Zupan will transfer and convey to City by warranty deed title to the land marked as the Jordan Property on the attached Exhibit "A ", consisting of approximately seventy -five (75) acres of unimproved land in its present condition "AS IS" free and clear of liens and encumbrances except general property tax for the year 1994 and subsequent years, subject to easements, rights -of -way, reservations, covenants and restrictions of record. Zupan will pay all general property taxes for the year 1995 and prior years. 4. City will transfer and convey to Zupan by quit claim deed title to the land marked as "39.25 ACRES" on the attached Exhibit "A" consisting of approximately thirty -nine and 25/100 (39.25) acres of unimproved land in its present condition "AS IS" reserving to the City a drainage easement across the land. Said land together with the approximately twenty -four (24) acres (the "24 Acres ") to be conveyed to Zupan pursuant to Addendum No. 1 shall be included in and conveyed by the City in the same quit claim deed. Both parcels of land shall be included as a part of Zupan's Land and be subject to all of the terms and provisions of the Purchase Agreement. 5. Zupan shall, within thirty (30) days after the date of this Addendum No. 2, furnish and provide to City the legal description for the "Jordan Property ", the "39.52 Acres" and "24 Acres ", and drainage easement, acceptable to City. The transfer and conveyance of the land described in paragraphs 3 and 4 hereof will be closed simultaneously within ten (10) days after Zupan delivers the legal descriptions acceptable to City. If Zupan fails to deliver the legal descriptions acceptable to City within said 30 -day period, City will cause the legal descriptions to be prepared at the expense of Zupan and the transfer and conveyance of the land will be closed within ten (10) days after the legal descriptions are delivered to City. 6. Each party may, at its expense, obtain title insurance for the land to be acquired by such party hereunder (the "Transferee "). If the commitment for title insurance shows title to be -2- unmarketable in the transferring party or is subject to defects or encumbrances not acceptable to the Transferee, the Transferee, upon written notice given to the transferring party no later than five (5) days prior to closing, may terminate this Agreement and each party shall be released from all obligations hereunder. 7. Zupan will proceed diligently to obtain a Certificate of Designation for the Landfill as described in paragraph 2 hereof and after its issuance, Zupan, at its expense, will conduct for the residents of the City and County of Pueblo a Solid Waste Disposal Operation within said Landfill in compliance with the terms and conditions of the Purchase Agreement, Rules and Regulations, and the Certificate of Designation. 8. Time is of the essence hereof. The Agreements and this Addendum No. 2 may be specifically enforced. In the event of any litigation arising out of this Addendum No. 2 or the Agreements, the court shall award to the prevailing party its costs and expenses including reasonably expert witness and attorney fees. Any action to enforce this Addendum No. 2 or the Agreements shall be brought in the Pueblo County District Court. 9. Nothing contained herein shall release, discharge or waive or be construed to release, discharge or waive any of Zupan's obligations under the Agreements including without limitation the obligation to timely perform and complete closure, reclamation and revegetation with respect to Phase I and Disturbed Areas in compliance with the Agreements, Rules and Regulations, and the Certificate of Designation (the " Zupan's Phase I Obligations "). 10. Without waiving any obligations under the Agreements nor extending any time periods for the performance thereof by Zupan or City, and in consideration of Zupan and the City executing this Agreement and not having heretofore instituted any action to enforce obligations under the Agreements, Zupan and City waive their right, if any, and agree not to assert in any action hereafter filed or brought by the City or Zupan within three (3) years after the date of this Addendum No. 2 to enforce Zupan's or City's obligations under the Agreements, or for damages for nonperformance thereof, any defense based upon estoppel, laches, statute of limitation, waiver or City's or Zupan's delay in instituting any such action. 11. Zupan acknowledges and agrees that Zupan's Phase I Obligations are not complete until (i) final closure of Phase I and Disturbed Areas is approved by the Hazardous Materials and Waste Management Division of the Colorado Department of Public Health And Environment and (ii) revegetation is approved by the Soil Conservation Service of the United States Department of Agriculture. Zupan further acknowledges and agrees that revegetation must meet and comply with the revegetation guidelines contained in the Soil Conservation Services' letter of February 9, 1983 as modified in writing by the Soils Conservation Services. 12. Landfill operations shall cease during periods when high wind warnings are verified on site. If Zupan has no wind velocity measuring device, closure decisions shall be based on readings obtained hourly by Zupan from the nearest national weather service or other location -3- approved by the Pueblo City - County Health Department. "High wind warning" means that sustained winds of forty miles per hour (40 mph) or greater, or gust of fifty -five miles per hour (55 mph) or greater, are expected to persist for one hour or longer, as defined by the National Weather Service. 13. The Agreements as amended by this Addendum No. 2 shall remain in full force and effect and be binding upon and inure to the benefit of City, its successors and assigns and Zupan, its successors and approved assigns. 14. If any provision of this Addendum No. 2 conflicts with any provision of the Agreements, the provisions of this Addendum No. 2 shall control and prevail to the extent of such conflict. 15. If any provision of this Addendum No. 2 or the Agreements shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Addendum No. 2 or the Agreements. 16. This Addendum No. 2 may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. This Addendum No. 2 and the Agreements shall be governed by and construed in accordance with the laws of the State of Colorado. Executed at Pueblo, Colorado the day and year first above written. [SEAL] Attest: aA City Clerk PUEBLO, A MUNICIPAL CORPORATION B President of the City Council [SEAL] Attest Secretary ZUPAN ENTERPRISES, INC. B President GUARANTY In consideration of the City of Pueblo entering into the foregoing Addendum No. 2 and the transfer of the land as therein contemplated, Joe P. Zupan does hereby personally guarantee the performance of the Purchase Agreement, Addendum No. 1 and Addendum No. 2 by Zupan Enterprises, Inc. In the event of any default by Zupan Enterprises, Inc. under the Purchase -4- r OFFICE OF THE CITY ATTORNEY 127 Thatcher Building PUEBLO, COLORADO 81003 MEMORANDUM TO: Gina Dutcher, City Clerk FROM: Thomas J. Florczak, Assistant City Attorney DATE: January 7, 1998 RE: Retention of Deed and Title Policy Amendment No. 2 to April 22, 1991 Zupan Agreement Enclosed herewith is (1) the Warranty Deed dated April 22, 1997 from Zupan Enterprises, Inc. to the City of Pueblo and (2) Title Insurance Policy No. 136 -00- 916830 issued by Lawyers Title insuring title to the property transferred by the Warranty Deed. The deed and original policy should be retained by you with the original of Resolution No. 7610 passed by City Council on April 24, 1995. Please contact me if you have any questions regarding this matter. TJF /Jp Enclosure xc: (w /2 encl.) Tom Cvar Agreement, Addendum No. 1, or Addendum No. 2 and written notice thereof is given to Joe P. Zupan, Joe P. Zupan will perform or cause to be performed all the terms and conditions of the Purchase Agreement, Addendum No. 1 and Addendum No. 2 required to be performed by Zupan Enterprises, Inc. This Guaranty is unconditional and may not be revoked by Joe P. Zupan and shall be binding upon Joe P. Zupan, his heirs, personal representatives, successors and assigns. Signed at Pueblo, Colorado this 24th day of APRIL , 1995. p �� Joe P. Zupan JAC1MADMIN\ZUPAN41DDM2. W PD _ 5 Ja4twrsTtle IniuMfice Corporation NATIONAL HEADQUARTERS RICHMOND, VIRGINIA OWNER'S POLICY SCHEDULE A CASE NUMBER DATE OF POLICY AMOUNT OF INSURANCE POLICY NUMBER 97 -05 -429 May 16, 1997 $38,000.00 136 -00- 916830 FILE NUMBER at 1:51 PM The policy number shown on 6445 this schedule must agree with the preprinted number on the cover sheet. 1. NAME OF INSURED: Pueblo, a Municipal corporation 2. THE ESTATE OR INTEREST IN THE LAND DESCRIBED HEREIN AND WHICH IS COVERED BY THIS POLICY IS: Fee Simple 3. THE ESTATE OR INTEREST REFERRED TO HEREIN IS AT DATE OF POLICY VESTED IN: Pueblo, a Municipal corporation 4. THE LAND REFERRED TO IN THIS POLICY IS DESCRIBED AS FOLLOWS: The East 1/2 of the Northeast 1/4 of Section 13, Township 21 South of Range 66 West of the 6th P.M. except the South 335 feet of the East 600 feet of the Northeast 1/4 of Section 13, Township 21 South, Range 66 West, County of Pueblo, State of Colorado. LAWYERS TITLE OF PUEBLO, INC. By Countersignature Authorized Officer or Agent Issued at Pueblo, Colorado THIS POLICY IS INVALID UNLESS THE COVER SHEET AND SCHEDULE B ARE ATTACHED. Policy 136 Litho in U. S. A. ALTA Owner's Policy (10- 17 -92) Form No. 035 -0- 136 -0006 kd Form 100 035 -0- 100 -0011 Litho in U.S.A. jagiw y�ersTitle liiiuMfice Corooration NATIONAL HEADQUARTERS RICHMOND, VIRGINIA OWNER'S POLICY SCHEDULE B CASE NUMBER DATE OF POLICY POLICY NUMBER 97 -05 -429 May 16, 1997 136 -00- 916830 FILE NUMBER at 1:51 PM The policy number shown 6445 on this schedule must agree with the preprinted number on the cover sheet. THIS POLICY DOES NOT INSURE AGAINST LOSS OR DAMAGE (AND THE COMPANY WILL NOT PAY COSTS, ATTORNEYS' FEES OR EXPENSES) WHICH ARISE BY REASON OF: 1. Rights or claims of parties in possession not shown by the public records. 2. Easements, or claims of easements, not shown by the public record. 3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, and any facts which a correct survey and inspection of the premises would disclose and which are not shown by the public records. 4. Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records. 5. Unpatented mining claims; reservations or exceptions in patents or in Act authorizing the issuance thereof; water rights, claims or title to water. 6. Any and all unpaid taxes, assessments and unredeemed tax sales. 7. All existing roads, highways, ditches, utilities, reservoirs, canals, pipelines, power lines, telephone lines, water lines, or railroads, and any and all appurtenances pertaining thereto, and any and all rights of way or easements therefor. 8. Right, title and interest to all minerals within and underlying the premises, together with all mining and drilling rights and other rights, privileges and immunities relating thereto. 9. Easements, covenants, restrictions and reservations as contained in Warranty Deed recorded in Book 2533 at Page 96, Instrument No. 941791 10. Right of Access to and from said property. Policy 136 Litho in U.S.A. Form No. 035 -0- 136 -0006 ALTA Owner's Policy (10 -17 -92 Form 100 Litho in U.S.A. 035 -0- 100 -0011 Reception #: 1169275 Date: 05/16/1997 Time: 150 Book: 2998 Page: 104 Chris C. Munoz Inst: WD R Fee: 10.00 D Fee: 0.00 SC: 1.00 Pg: 1 of 2 Pueblo Co.Clk. &Rec. WARRANTY DEED THIS DEED, made this QQ day of April, 1997, between ZUPAN ENTERPRISES, INC., a Colorado corporation of the County of Pueblo, State of Colorado, Grantor, and PUEBLO, a Municipal corporation, whose legal address is 1 City Hall Place, Pueblo, Colorado 81003 of the County of Pueblo, State of Colorado, Grantee: WITNESSETH, that the Grantor, for and in consideration of the sum of One Dollar and other good and valuable considerations, 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, its heirs and assigns forever, all the real property, together with improvements, if any, situate, lying and being in the County of Pueblo, State of Colorado, described as follows: The East one -half of the Northeast 1/4 of Section 13, Township 21 South of Range 66 West of the 6th P.M. except the South 335 feet of the East 600 feet of the Northeast 1/4 of Section 13, Township 21 South Range 66 West. TOGETHER with all and singular the hereditaments and appurtenances thereto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever of the Grantor, either in law or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances. TO HAVE AND TO HOLD the said premises above bargained and described with the appurtenances, unto the Grantee, its heirs and assigns forever, and the Grantor, for itself, its heirs and personal representatives, does covenant, grant, bargain and agree to and with the Grantee, its heirs and assigns, that at the time of the ensealing and delivery of these presents, they well seized of the premises above conveyed, has good, sure, perfect, absolute and indefeasible estate of inheritance, in law, in fee simple, and has good right, full power and authority to grant, bargain, sell and convey the same in manner and form as aforesaid, and that the same are free and clear from all former and other grants, bargains, sales, liens, taxes, assessments, encumbrances, and restrictions of whatever kind or nature soever, except taxes for 1995 and subsequent years, easements, rights -of -way, reservations, covenants, and restrictions of record. The Grantor shall and will WARRANT AND FOREVER DEFEND the above - bargained premises in the quiet and peaceable possession of the Grantee, its heirs and assigns, against all and every person or persons lawfully claiming the whole or any part thereof. IN WITNESS WHEREOF, the Grantor has executed this Deed on the date set forth above. Book: 2998 Page: 105 Chris C. Munoz Page: 2 of 2 Pueblo Co.C1k.&Rec. ZUPAN ENTERPRISES, INC. By Joe P. Zupan, Presid t ATTESTED BY: By t ),/ Sandra Zupan, Secre a y STATE OF COLORADO ) ) SS. COUNTY OF PUEBLO ) The foregoing instrument was acknowledged before me this _.22_ day of April, 1997, by Joe P. Zupan, President of Zupan Enterprises, Inc. Witness my hand and official seal. Notary Public My Comm. Exp. a Notary Public My Comm. Exp. /• .' 1 .1. >' .i ce• ••, ,' L-.. L • • et , '. �l . . 1 ' - „ :�:, " Y' S. ! ¢p,NI ss s as 12$11/2 \ • • .' '\„ �� '' I•• .• . ! , f ..�• �. \ ,\. \;•.��� i; • ' •* .•N I ''''' \ . 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