HomeMy WebLinkAbout1993-149-10/19/1993-PURCHASE 7550 ACRES SLUDGE MANAGEMENT PROGRAM TERRA RESOURCE CORPORATION WATER AND WASTEWATER UTILIT RESOLUTION 93-149
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE PURCHASE OF 7,550 ACRES OF LAND
FROM TERRA RESOURCE CORPORATION FOR $755,000
WHEREAS, the City of Fort Collins ("the City") and Terra Resource
Corporation ("Terra Resource") entered into an Agreement of Purchase and Sale of
Real Property dated September 7, 1993, a copy of which is attached hereto as
Exhibit "A" and incorporated by reference ("the Purchase Agreement") ; and
WHEREAS, the Purchase Agreement was amended by that certain Addendum to
Agreement of Purchase and Sale of Real Property dated October 5, 1993, entered
into by and between the City and Terra Resource, a copy of which Addendum is
attached hereto as Exhibit "B" and incorporated herein by reference ("the
Addendum") ; and
WHEREAS, the Purchase Agreement and the Addendum provide that the City
shall purchase from Terra Resource that certain real property described in
Exhibit "A" of the Purchase Agreement constituting approximately 7,550 acres of
land ("the Property") ; and
WHEREAS, the Purchase Agreement is contingent upon Terra Resource obtaining
title to the Property through a series of transfers involving other third parties
and also contingent upon the City Council passing an ordinance appropriating
funds in an amount sufficient to fulfill the City's obligation under the Purchase
Agreement, which ordinance must be passed by Council on second reading on or
before November 2, 1993, and become law ten days thereafter; and
WHEREAS, the Addendum provides that the City is to pay to Terra Resource
on November 1, 1993, $5,000 as an earnest money deposit in this transaction; and
WHEREAS, the Addendum provides that the City's obligation to pay the
earnest money deposit is contingent upon the City Council adopting on October 19,
1993, a resolution approving the Purchase Agreement; and
WHEREAS, if the Property is purchased by the City from Terra Resource, the
Property will be used, together with other real properties currently owned by the
City, in the City's Water and Wastewater Utility Sludge Management Program.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS
as follows:
Section 1. That the purchase of the Property by the City from Terra
Resource is in the best interests of the City.
Section 2. That the Purchase Agreement and the Addendum are hereby
approved.
Section 3. That the Mayor be, and hereby is, authorized to execute such
instruments as are necessary for the City to purchase the Property from Terra
Resource under the terms and conditions of the Purchase Agreement and the
Addendum, provided, however, that the City Council appropriates funds in an
amount sufficient to fulfill the City's obligations under the Purchase Agreement,
by ordinance, which ordinance must be passed by City Council on second reading
on or before November 2, 1993, and must become law ten (10) days thereafter.
Passed and adopted at a regular meeting of the Council of the City of Fort
Collins held this 19th day of October, A.D. 1993.
I
ATTEST: yor
City Clerk
EXHIBIT B
ADDENDUM TO AGREEMENT OF PURCHASE
AND SALE OF REAL PROPERTY
THIS ADDENDUM is made and entered into this day of
October, 1993, by and between TERRA RESOURCE CORPORATION, a
Colorado corporation, whose address is 760 Whalers Way,
Suite A-200, Fort Collins, Colorado 80525 (hereinafter referred to
as "the Seller") , and THE CITY OF FORT COLLINS, COLORADO, a
municipal corporation, whose address is 300 LaPorte Avenue, Fort
Collins, Colorado 80521 (hereinafter referred to as "the
Purchaser") .
W I T N E S S E T H
WHEREAS, the Seller and the Purchaser have previously entered
into that certain "Agreement of Purchase and Sale of Real Property"
dated September 7, 1993 , (hereinafter referred to as "the Purchase
Agreement") ; and
WHEREAS, the Seller and the Purchaser desire to amend certain
terms and conditions of the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree to amend the terms and
conditions of the Purchase Agreement as follows:
1. The parties hereto agree to amend paragraph 4 , of the
Purchase Agreement to read in full as follows:
4 . Title Insurance. The Purchaser, at its own
expense, may obtain its own title insurance in this
transaction. The Seller shall be under no obligation to
provide title insurance in this transaction. If the
Purchaser elects to obtain title insurance for this
transaction, the Purchaser shall have until October 12,
1993 , in which to review the title commitment issued and
notify the Seller in writing of any matter shown on the
title commitment to which the Purchaser objects ("a
Defect") . Any matter shown on the title commitment to
which the Purchaser does not object to on or before
October 12, 1993 , shall be deemed to be a "Permitted
Exception. " The Seller shall have the right, but not the
obligation, to cure any Defect the Purchaser objects to.
If any such Defect is not cured on or before October 27,
1993 , the Purchaser may elect either: (a) to waive such
Defect (in which case the Defect shall become a Permitted
Exception) ; or (b) to terminate this Agreement (in which
case the earnest money deposit described in paragraph
3 .A. above shall be returned to the Purchaser and each
party shall thereupon be released from all further
obligations under this Agreement) .
2 . The parties hereto agree to amend subparagraphs A. and B.
of paragraph 19. of the Purchase Agreement to read in full as
follows:
19. Contingencies.
A. The Purchaser expressly acknowledges and
understands that the Seller currently has no legal
interest whatsoever in the Property. The Seller is
currently in negotiations with the Colorado State Land
Board (hereinafter referred to as "the Board") to obtain
the Property, along with other properties owned by the
Board in eastern Weld County, Colorado, by completing a
real estate exchange with various third parties. The
Seller shall have until November 1, 1993 , in which to
obtain contractual agreements satisfactory to the Seller
with the Board and other various third parties. If the
Seller cannot obtain said contracts, to its sole
satisfaction, then the Seller may terminate this
Agreement and all parties shall be released from all
obligations hereunder and any monies theretofore paid to
the Seller by the Purchaser shall be refunded in full to
the Purchaser, except as otherwise expressly provided for
in this Agreement. If the contracts are obtained to the
satisfaction of the Seller, and the title requirements of
paragraph 4. above are satisfied and the City Council of
the City of Fort Collins has adopted on October 19, 1993,
a resolution approving this Agreement, then the Purchaser
agrees to deposit, on November 1, 1993, an additional
earnest money deposit of Five Thousand Dollars
($5, 000. 00) , which shall be credited to the Purchaser
against the purchase price described in paragraph 3 .
above at the time of closing. The Seller may elect that
the $5, 000.00 be deposited with the real estate company
of Miscio & Stroud, Inc. , to be used by the Seller as
earnest money toward the purchase of a commercial
property to be exchanged by the Seller with the Board to
obtain the Property. The Purchaser expressly agrees that
if this $5, 000. 00 earnest money deposit is so used by the
Seller and this transaction fails to close for any
reason, that the Seller shall have no obligation to
refund this earnest money deposit to the Purchaser if the
Seller is unable to recover all or any part of this
earnest money deposit. In the event, however, that this
transaction fails to close for any reason not the fault
of the Purchaser and the Seller, without litigation, is
able to recover all or any part of this earnest money
deposit, the Seller shall pay all the earnest money
deposit it recovers to the Purchaser. In addition, this
Agreement shall remain contingent upon the successful
transfer of titles and necessary closings with the Board.
- 2 of 4 -
B. This Agreement is also hereby made expressly
contingent upon the City Council of the City of Fort
Collins (hereinafter referred to as "the Council")
appropriating funds in an amount sufficient to fulfill
the Purchaser's obligations under this Agreement, by
ordinance, which ordinance must be passed by the Council
on second reading on or before November 2, 1993, and must
become law ten (10) days thereafter as provided in the
City Charter. If the Council does not pass such an
ordinance on second reading on or before November 2 ,
1993 , or if for any reason it does not become law ten
(10) days thereafter as provided in the City Charter,
then this Agreement shall be automatically terminated and
all parties shall be released from all obligations
hereunder and any monies theretofore paid to the Seller
by the Purchaser shall be refunded in full to the
Purchaser, except as otherwise expressly provided for in
this Agreement.
3 . All other terms and conditions of the Purchase Agreement
shall remain unchanged and in full force and effect, except as
expressly amended in this Addendum.
IN WITNESS WHEREOF, the parties hereto have executed this
Addendum as of the day and year first above written.
SELLER:
TERRA RESOURCE CORPORATION,
A Colorado ion
aig Harrison, President
ATTEST: n
Secretar
PURCHASER:
THE CITY OF FORT COLLINS, COLORADO,
A Municipal Corporation
By°
ty Ma ag
3 of 4 -
ATTEST: n
lul� V
City Clerk v
APPROVED AS TO ORM:
i
As istant City Atto ey
- 4 of 4 -
EXHIBIT A
AGREEMENT OF PURCHASE AND SALE OF REAL PROPERTY
THIS AGREEMENT is made and entered into this day of
September, 1993 , by and between TERRA RESOURCE CORPORATION, a
Colorado corporation, whose address is 760 Whalers Way,
Suite A-200, Fort Collins, Colorado 80525 (hereinafter referred to
as "the Seller") , and THE CITY OF FORT COLLINS, COLORADO, a
municipal corporation, whose address is 300 LaPorte Avenue, Fort
Collins, Colorado 80521 (hereinafter referred to as "the
Purchaser") .
W I T N E S S E T H
For and in consideration of the promises of the Purchaser to
purchase and of the Seller to sell the real property hereinafter
described, and other good and valuable consideration, the receipt
and adequacy of which are hereby confessed and acknowledged, the
parties hereto agree to be legally bound whereby the Seller agrees
to sell and the Purchaser agrees to purchase the said real property
on the terms and conditions hereinafter set forth.
1. Description of Real Property. The real estate which is
the subject matter of this Agreement is those certain parcels of
real property located in the County of Larimer, State of Colorado,
which are legally described on Exhibit "A" attached hereto and
incorporated herein by reference. Said real property shall be
hereinafter referred to as "the Property. " The Property shall
include all fences and other improvements, if any, now located
thereon, including all fixtures of a permanent nature. The
Property shall also include all water rights, if any, belonging or
in any way appertaining thereto. In addition, the Property shall
include all of the Seller's right, title and interest in and to
easements, rights-of-way, future interests and rights to the same
belonging and inuring to the benefit of the Property, and in and to
all strips and gores of land lying between the Property and
adjoining property or streets, roads or highways, open or proposed.
2. Method of Conveyance. The Seller agrees to sell to the
Purchaser and the Purchaser agrees to purchase from the Seller,
subject to the terms and conditions as set forth herein, the
Property. The Property shall be conveyed by the Seller having
delivered to the Purchaser at the time of closing a Colorado State
Patent, which Patent shall convey the Property to the Purchaser
free and clear of all liens and encumbrances, except and subject to
the "Permitted Exceptions" as defined in paragraph 4: below. The
Purchaser expressly acknowledges that the Colorado State Patent
will contain a reservation by the State Land Board of the State of
Colorado reserving to it all mineral rights in the Property. The
Purchaser agrees to take title to the Property subject to this
reservation. The Purchaser further acknowledges that the Property
will be conveyed to it in an "AS-IS, WHERE IS" condition with no
survey being provided by the Seller as to the exact legal boundary
of the Property.
3 . Purchase Price. The total purchase price of the Property
shall be Seven Hundred Fifty-Five Thousand U.S. Dollars
($755, 000. 00) , and shall be payable by the Purchaser to the Seller
as follows:
A. The sum of Ten U.S. Dollars ($10.00) , representing an
earnest money deposit, shall be paid to the Seller by the
Purchaser upon the execution of this Agreement by check.
B. The balance of the purchase price in the amount of Seven
Hundred Fifty-Four Thousand Nine Hundred Ninety U.S.
Dollars ($754,990. 00) , subject to closing costs and
customary prorations, as hereinafter provided, shall be
payable by certified check from the Purchaser to the
Seller at the time of closing, as hereinafter set forth.
4 . Title Insurance. The Purchaser, at its own expense, may
obtain its own title insurance in this transaction. The Seller
shall be under no obligation to provide title insurance in this
transaction. If the Purchaser elects to obtain title insurance for
this transaction, the Purchaser shall have until October 7, 1993,
in which to review the title commitment issued and notify the
Seller in writing of any matter shown on the title commitment to
which the Purchaser objects ("a Defect") . Any matter shown on the
title commitment to which the Purchaser does not object to on or
before October 7, 1993 , shall be deemed to be a "Permitted
Exception. " The Seller shall have the right, but not the
obligation, to cure any Defect the Purchaser objects to. If any
such Defect is not cured on or before October 27, 1993, the
Purchaser may elect either: (a) to waive such Defect (in which
case the Defect shall become a Permitted Exception) ; or (b) to
terminate this Agreement (in which case the earnest money deposit
described in paragraph 3 .A. above shall be returned to the
Purchaser and each party shall thereupon be released from all
further obligations under this Agreement) .
5. Closing. The closing of this transaction shall be held
on January 14, 1994, at such reasonable time and location as the
parties may mutually agree upon, or on such earlier date as the
parties may mutually agree upon. "
6. Possession. The Seller and the Purchaser acknowledge
that the Purchaser is currently in possession of the Property under
a lease agreement with the Colorado State Land Board and,
therefore, will already be in possession of the Property at the
time of the closing of this transaction.
7 . Prorations. Purchaser's lease payments to the Colorado
State Land Board for lease of the Property shall be prorated as of
the date of closing.
- 2 of 7 -
8. Remedies on Default: If any' payment due hereunder is not
paid, honored or tendered when due, or if any other obligation
hereunder is not performed as herein provided, there shall be the
following remedies:
A. If the Purchaser is in default, then the Seller may elect
to treat this Agreement as terminated, in which case all
payments and things of value received hereunder from the
Purchaser shall be forfeited by the Purchaser and
retained by the Seller, and the Seller may recover such
damages as may be proper, or the Seller may elect to
treat this Agreement as being in full force and effect,
and the Seller may have the right to an action for
specific performance or damages, or both.
B. If the Seller is in default, the Purchaser may elect to
treat this Agreement as terminated, in which case all
payments and things of value received hereunder by the
Seller shall be returned to the Purchaser, except as
otherwise expressly provided for in this Agreement, and
the Purchaser may recover such damages as may be proper,
or the Purchaser may elect to treat this Agreement as
being in full force and effect and the Purchaser shall
have the right to specific performance or damages, or
both.
9 . Attorney's Fees and Costs. In the event either of the
respective parties hereto shall default in any of their covenants
or obligations herein provided and the party not in default
commences legal or equitable action against the defaulting party,
the defaulting party expressly agrees to pay all of the non-
defaulting party's reasonable expenses of said litigation,
including a reasonable sum for attorney's fees.
10. Governing Law. It is expressly understood and agreed by
the parties hereto that this Agreement is made in and shall be
construed and interpreted in accordance with the laws of the State
of Colorado.
11. Notices. Any notice or other communication given by
either party hereto to the other relating to this Agreement shall
be hand delivered or sent by registered or certified mail, return
receipt requested, addressed to such other party at their
respective addresses as set forth below; and such notice or other
communication shall be deemed given when so hand delivered or three
(3) days after so mailed:
3 of 7 -
If to Seller:
City of Fort Collins
c/o Mike Smith
P. O. Box 580
Fort Collins, CO 80522
with a copy to:
City Attorney's Office
City of Fort Collins
P. 0. Box 580
Fort Collins, CO 80522
If to Purchaser:
Terra Resource Corporation
c/o Craig Harrison
760 Whalers Way, Suite A-200
Fort Collins, CO 80525
with a copy to:
Timothy W. Hasler, Esq.
P. 0. Box 2267
Fort Collins, CO 80522
12. Assignment. This Agreement shall not be assigned by
either of the parties hereto without the prior written consent of
the other party, which consent shall not be unreasonably withheld.
13 . Casualty. In the event that the Property is
substantially damaged by fire, flood or casualty between the date
of this Agreement and the date of closing of title, this Agreement
may, at the option of the Purchaser, be declared null and void and
of no further force or effect; and all the parties to this
Agreement shall be released from all obligations hereunder; and the
Purchaser shall be entitled to a refund of the amount of money, if
any, theretofore paid to the Seller, except as otherwise expressly
provided for in this Agreement.
14. Headings. Paragraph headings used herein are for
convenience of reference and shall in no way define, limit or
prescribe the scope or intent of any provision under this
Agreement.
15. Terms Survive Closing. To the extent necessary to carry
out all of the terms and provisions hereof, the said terms,
obligations and rights set forth herein shall be deemed not
terminated at the time of closing, nor shall they be necessarily
merged with the various documents executed and delivered at such
time.
4 of 7 -
16. Construction. Words of the masculine gender shall
include the feminine and neuter gender and when the sentence so
indicates, words of the neuter gender shall refer to any gender.
Words in the singular shall include the plural and vice versa.
This Agreement shall be construed according to its fair meaning,
and as if prepared by both parties hereto, and shall be deemed to
be and contain the entire understanding and agreement between the
parties hereto. There shall be deemed to be no other terms,
conditions, promises, understandings, statements or
representations, express or implied, concerning this Agreement
unless set forth in writing and signed by both parties hereto.
17. Time is of the Essence. It is agreed that time shall be
of the essence to this Agreement and each and every provision
hereof.
18. Right to Inspect. The Purchaser is currently in
possession of the Property and has conducted such inspections of it
as it deems appropriate. Accordingly, the Purchaser agrees to hold
the Seller harmless from any obligations, - requirements, and
liabilities whatsoever in connection with the existing physical
condition of the Property.
19. Contingencies.
A. The Purchaser expressly acknowledges and understands that
the Seller currently has no legal interest whatsoever in the
Property. The Seller is currently in negotiations with the
Colorado State Land Board (hereinafter referred to as "the Board")
to obtain the Property, along with other properties owned by the
Board, in eastern Weld County, Colorado, by completing a real
estate exchange with various third parties. The Seller shall have
until November 1, 1993 , in which to obtain contractual agreements
satisfactory to the Seller with the Board and other various third
parties. If the Seller cannot obtain said contracts, to its sole
satisfaction, then the Seller may terminate this Agreement and all
parties shall be released from all obligations hereunder and any
monies theretofore paid to the Seller by the Purchaser shall be
refunded in full to the Purchaser, except as otherwise expressly
provided for in this Agreement. 'If the contracts are obtained to
the satisfaction of the Seller, and the title requirements of
paragraph 4 . above and the contingency described in paragraph 19.B.
below have been satisfied, then the Purchaser agrees to deposit, on
November 1, 1993 , an additional earnest money deposit of Five
Thousand Dollars ($5, 000. 00) , which shall be credited to the
Purchaser against the purchase price described in paragraph 3 .
above at the time of closing. The Seller may elect that the
$5,000. 00 be deposited with the real estate company of Miscio &
Stroud, Inc. , to be used by the Seller as earnest money toward the
purchase of a commercial property to be exchanged by the Seller
with the Board to obtain the Property. The Purchaser expressly
agrees that if this $5,000. 00 earnest money deposit is so used by•
the Seller and this transaction fails to close for any reason, that
5 of 7 -
the Seller shall have no obligation to refund this earnest money
deposit to the Purchaser if the Seller is unable to recover all or
any part of this earnest money deposit. In the event, however,
that this transaction fails to close for any reason not the fault
of the Purchaser and the Seller, without litigation, is able to
recover all or any part of this earnest money deposit, the Seller
shall pay all the earnest money deposit it recovers to the
Purchaser. In addition, this Agreement shall remain contingent
upon the successful transfer of titles and necessary closings with
the Board.
B. This Agreement is also hereby made expressly contingent
upon the City Council of the City of Fort Collins (hereinafter
referred to as "the Council") appropriating funds in an amount
sufficient to fulfill the Purchaser's obligations under this
Agreement, by ordinance, which ordinance must be passed by the
Council on second reading on or before October 19, 1993, and must
become law ten (10) days thereafter as provided in the City
Charter. If the Council does not pass such an ordinance on second
reading on or before October 19, 1993, or if for any reason it does
not become law ten (10) days thereafter as provided in the City
Charter, then this Agreement shall be automatically terminated and
all parties shall be released from all obligations hereunder and
any monies theretofore paid to the Seller by the Purchaser shall be
refunded in full to the Purchaser, except as otherwise expressly
provided for in this Agreement.
20. Right to Extend Dates. The Seller shall have the right
to extend any date in this Agreement by up to thirty (30) days.
21. Broker Disclaimer. It has been disclosed that Craig
Harrison is a licensed real estate broker for Harrison Resource
Corporation and is president of the Seller and is acting as
principal in this transaction and makes no warranties or
representations other than what is expressly 'stated in this
Agreement. Harrison Resource Corporation is not representing the
Purchaser in this transaction.
22 . Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns.
- 6 of 7 -
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
SELLER:
TERRA RESOURCE CORPORATION,
A Colorado ration
By:
President �- 1�4nAiS �yJ
ATTEST• q 1
;,s s Secretary
PURCHASER:
THE CITY OF FORT COLLINS, COLORADO
A Munici 1 Cor oration
By:
City-f4ar&er
ATTEST: M
Y
City Clerk
PPROVED AS TO ORM:
ASM 9tant ity ttorney
- 7 of 7 -
EXHIBIT "A1l Ar^TACHED TO AND MADE A PAR- OF THE AGREEMENT OF
PURCHASE AND 4LE OF REAL PROPERTY 'WEEN TERRA RESOURCE
CORPORATION (11...E SELLER") AND THE CITY OE ZORT COLLINS, COLORADO
("THE PURCHASER")
LEG7i�DESCRTP?rMN" OF
LhASE OF �S�T�Ap�TgEp LANDS '
THIS INDENTURE,Made In duplicate and entered into at the Gty and County of Denver and Sate of coiorsdo,
this let 'day of November ,In the year of our Lord one Thousand nine
hundred eighty-five _by and between the Sate of Colorado,actin`through Its State Board of
Land Comraluloners,hereinafter designated as the laser,and -Meadow Sorinae Grazing Aeaocia
%Arden W. nprr -
of P.O. Box 71
� Pierce ,State of. CO 80650 ' hereinafter designated
as the lessee.Wherever the word"lessee"appears in the printed portion or this contract,it is intended to and does
refer to the lessee(s)named above,whether one or more in number,and the word•'lessee"Is also Understood to in.
clude heirs,assigns,successors,or legal representatives.
Wltnesw,h:The,the le,—.to,end In eo Mdendm r,he eevenma end gmemenu herein w,forth•m be kept end pgfwmtl br,b
kaue,ha,by virtue of the sumps h,,wh ems made end Provided,demhed end fined to the low the right end privprp far arum{.
nflev[turd.w other purpwe,a hereinafter indimed.to the fon o.ina dwerib School
I.nd..eim.u,[,in,end being in the county,of _-. 4arime* and We 1el ,m
eod 51.19.the vme being kno.n end d ,,Wd.,raflo".tie:
TOWNSHIP 11 NORTH - RANGE 67 WEST
WELD COUNTY
Section 6, SW} g W}E}
Section 18, All that part lying West
of Interstate Highway 25
Section 30, SW}NW}, W}SW},SE1SW}, and -
SJfSE}
Section 320 SW10111}, NW}GW}, and S}S1i}
TOWNSHIP 12 NORTH - RANGE 67 WEST -
WELD COUNTY
Section 20, All that part of Lot 1 and
SINE}tt NW}SE}, NE}SW}, and
SW}SW* lying southeasterly
of the Railroad Right-of-
Way 1447
TOWNSHIP 11 NORTH - RANGE 68 WEST
LARINER COUNTY
Section 2, All
Section 81 All
Section 10, Wj
Section 12, All
Section 16, All
(Section 18, All -
ISection '22, All
.Section 24, SW}
'Section 34, N}NW} SE}NW} and
SE}8WI
TOWNSHIP 12 NORTH - RANGE 68 WEST
LARINER COUNTY
-Section 26, All
Section 34, All .
.Section 36, All -