HomeMy WebLinkAbout20172764.tiffRESOLUTION
RE: APPROVE PURCHASE AND SALE AGREEMENT (TIMNATH TOWER) AND
AUTHORIZE CHAIR TO SIGN - NOTE ACQUISITIONS, INC., C/O JOHN GAZZO
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with a Purchase and Sale Agreement
(Timnath Tower) between the County of Weld, State of Colorado, by and through the Board of
County Commissioners of Weld County, on behalf of the Department of Public Safety
Communications, and Note Acquisitions, Inc., c/o John Gazzo, commencing upon full execution
of signatures, and with further terms and conditions being as stated in said agreement, and
WHEREAS, after review, the Board deems it advisable to approve said agreement, a copy
of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Purchase and Sale Agreement (Timnath Tower) between the County
of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County,
on behalf of the Department of Public Safety Communications, and Note Acquisitions, Inc., c/o
John Gazzo, be and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said agreement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 9th day of August, A.D., 2017.
BOARD OF COUNTY COMMISSIONERS
ATTESTdi aiti v• :4i
Weld County Cleric to the Board
BY
Barbara Kirkmeyer
APPRQ
ounty Attorney
Date of signature: ''''("@31
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1R/Ic1(17
WELD COUNTY, COLORFjJO
Ju ie A. ozad, Chair
Steve Moreno, Pro-Tem
C-
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2017-2764
PR0035
BOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW/ WORK SESSION REQUEST
RE: Fleet Replacement (Old Radios)
DEPARTMENT: Communications- Public Safety Wireless
PERSON REQUESTING: Michael R Wallace
Brief description of the problem/issue:
DATE: 08/01/2017
After numerous months working with Frank and Bruce in legal and the property sellers attached are the
purchase agreements for the Grover & Timnath tower property. Also attached is the Access Easement
agreement allowing access to the said Grover property.
Review of Purchase agreements for Grover Tower Property and the Timnath Tower Property
What options exist for the Board? (Include consequences, impacts, costs, etc. of options)
Approve Purchase Agreement
Deny Purchase Agreement
Recommendation:
Approve Purchase Agreement
Approve
Recommendation
Julie Cozad, Chair
Mike Freeman
Sean P. Conway
Barbara Kirkmeyer
Steve Moreno
Schedule
Work S sion Other/Comments:
ikkei I [i
2017-2764
PURCHASE AND SALE AGREEMENT
T IS PURCHASE AND SALE AGREEMENT ("Agreement") is entered into this 7
day of 2017 ("Effective Date"), by and between the NOTE ACQUISITIONS,
INC. whose dress is PO Box 1541 Dillon, CO 80435, C/O John C. Gazzo Corporate Director
herein after referred to as "Seller," and COUNTY OF WELD, a political subdivision of the State
of Colorado, by and through the Board of County Commissioners of the County of Weld, whose
address is P.O. Box 758, 1150 O Street, Greeley, Colorado 80632, hereinafter referred to as
"Buyer." Seller and Buyer may be referred to herein as "the Parties."
WITNESSETH:
WHEREAS, the Seller owns real property located in Section 8, Township 7 North, Range
67 West of the 6th P.M. in Weld County, Colorado, Weld County Parcel No. 070508000028,
shown on Figure 1 attached hereto and incorporated into this Agreement ("the Property"); and
WHEREAS, within the boundaries of the Properties is situated a Communications Tower
known as "Timnath Tower;" and
WHEREAS, Buyer operates a communications network for the purpose of public safety.
WHEREAS, the Seller desires to sell and Buyer desires to purchase the Properties
(Parcel) and Improvements (including the Tower) upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises of the parties and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
ARTICLE I
PROPERTIES AND INCLUSIONS; WATER RIGHTS APPLICATION
1.1
Properties. Seller agrees to sell and Buyer agrees to buy on the terms and conditions set
forth in this Agreement the Properties, together with all Improvements, including the
Tower, rights, easements, and benefits appurtenant thereto.
1.2 Inclusions. Unless specifically excluded by the operation of Section 1.3 below, the
Properties include the following:
1.2.1 All improvements, and any easements, servitudes, permits, licenses, and leases
appurtenant to the Properties. These improvements specifically include the Tower
and building and any appurtenances to the Tower.
1.2.2 All surface rights, together with any and all surface use, access easements, and all
rights in connection therewith;
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1.2.3 All of Seller's interest in any permits, permissions, or licenses regarding tower
usage or right to occupy air space above the parcel, this includes the Federal
Communications Commission ("FCC") Antenna Structure Registration but
does not include any other FCC Licenses owned or operated by the Seller, also
all water, wells, well rights, well permits, springs, appurtenant to and/or
enjoyed in connection with the Properties, together with all of Seller's interest,
if any, in easements or rights -of -way, appurtenant thereto or used in connection
therewith, as well as all fixtures, apparatus and ancillary equipment,
appurtenant thereto or used in connection with said site.
1.3 Tower Inspection and Condition: The Parties recognize that Buyer's primary purpose for
acquiring the Properties is for the acquisition of the Tower for the purpose expanding the
Buyer's communications network. The Parties estimate the tower is 121 feet high, and
capable of performing to the standards outlined in the attached Exhibits. The Exhibits
Include;
1.3.1 Exhibit A — Centerline Solutions Tower Assessment Report dated 6/2/16
1.3.2 Exhibit B — Centerline Solutions Self Support Tower Mapping Report dated
6/10/16
1.4 Permanent Access to Properties. Seller agrees that Buyer shall have the perpetual right to
access the Properties. Access shall be off of Weld County Road 15 and Seller warrants
this is a valid access with no encumbrances.
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. The purchase price for the Properties is $240,000.00 (Two Hundred Forty
Thousand Dollars) ("Purchase Price").
2.1.1 The Purchase Price shall be paid at closing. Payment for the Properties shall
be made pursuant to the terms of a warranty deed.
2.1.2 This purchase price includes all improvements, specifically, but not limited to,
the Tower and the buildings. Seller specifically warrants and promises that it
possesses clean title to the Tower and the above listed improvements. Seller
shall indemnify, defend, and make whole the Buyer should any dispute arise as
to the ownership of the Tower.
2.1.3 Credit for Legal Fees. The purchase price set forth above also includes a credit
of 50% of fees paid for title work.
Page 2 of 10
ARTICLE III
TITLE AND CLOSING
3.1 Time and Place of Closing. Subject to and in accordance with the provisions of this
Agreement, closing of the purchase and sale of the Properties ("Closing") shall be held at
a place determined by the Parties, within ninety (90) days after the Effective Date of this
Agreement, or at such sooner time as may be mutually agreed upon by the Parties
("Closing Date").
3.2 Title Insurance. Prior to the Closing, Buyer shall obtain, and Seller shall compensate
Buyer for, one or more commitment(s) for an ALTA Owners Policy of Title Insurance
("Commitment") committing the Heritage Title Company ("Title Company") to issue a
policy insuring title to the Properties in accordance with the Commitment in the name of
the Buyer. The Commitment shall bear an effective date subsequent to the Effective Date
and shall include complete, legible copies of all documents referred to therein.
3.3 Warranty of Title of Tower. Seller also agrees to warrant and promise that the Seller
possesses clean title to the parcel, the tower, and all improvements thereon. Seller agrees
to indemnify, defend, and make whole the Buyer against any future claims against
Buyers interest in the Parcel, Tower, and all improvements thereon.
3.4 Objections. Within fourteen (14) days of receiving the Commitment, Buyer shall deliver
to Seller written notice of Buyer's objections to title, if any. Permissible exceptions to
title shall include only (together, "Permitted Exceptions"): (i) zoning laws and
building ordinances; and (ii) title exceptions shown on the Commitment to which Buyer
has not objected or is deemed to have accepted by failing to object.
3.5 Cure. If Seller will not cure or remove or commit to removing the objections or
otherwise fails to respond to Buyer's notice of title objections on or before fourteen (14)
days following Buyer's notice of objections, then Buyer may terminate this
Agreement by written notice to Seller on or before the date which is two (2) business
days after the end of such fourteen (14) day period, whereupon the parties shall be
released from all further obligations hereunder.
3.6 Title Insurance Policy. A title insurance policy consistent with the Commitment
shall be issued or committed to be issued by the Title Company as of the date of
Closing and shall show no exceptions other than the Permitted Exceptions (the "Title
Policy").
3.7 Delivery of Documents. On or before the Closing Date, Seller and Buyer shall
accomplish the following:
3.7.1 Seller shall deliver or cause to be delivered to the Title Company:
3.7.1.1 A warranty deed conveying to Buyer the Properties, water rights, and any
improvements, including the Tower and any appurtenances, duly executed
Page 3 of 10
and acknowledged by Seller, free and clear of all taxes and assessments
and other liens and encumbrances except non -delinquent general
Properties taxes for the year of Closing and the Permitted Exceptions.
3.7.1.2 Any other documents required to be executed by Seller pursuant to the
terms of this Agreement or requested by Title Company in connection
with the transaction contemplated hereunder or as may be required
pursuant to applicable law.
3.8 Closing Costs. The Title Policy premium shall be paid by Buyer. The cost of any transfer
fees, taxes or escrow fees and charges shall be shared equally between the parties. Buyer
and Seller shall sign and complete all customary or required documents at or before
closing. Fees for real estate closing services shall be paid by Buyer.
3.9 Payment of Encumbrances. Any encumbrances required to be paid shall be paid at or
before Closing from the proceeds of this transaction or from any other source.
3.10 Leases. Seller warrants that it has disclosed all leases regarding the Property and its
Improvements, including the Tower. Said leases shall all be either terminated,
negotiated, or transferred to the Buyer in writing, signed by all parties, on the closing
day.
ARTICLE IV
CONDITIONS TO CLOSING
4.1 Buyer's Conditions. Buyer's obligation to purchase the Properties is subject to the
fulfillment prior to Closing of each of the following conditions, each of which is for the
benefit of Buyer and any of which may be waived by Buyer at its sole option:
4.1.1 Document Review. Buyer's review and approval of the following documents and
materials within thirty (30) days of the Effective Date, which documents Seller
shall use its best efforts to cause to be delivered to Buyer contemporaneously with
the execution of this Agreement, but no later than fifteen (15) days after the
Effective Date:
4.1.1.1 Buyer shall obtain, and Seller shall compensate Buyer for, a current
ALTA preliminary title report for the Properties, accompanied by copies
of all documents referred to in such reports, or if not available as of the
deadline required by this paragraph, copies of all work completed by the
title company;
4.1.1.2 Copies of all applications, permits, licenses, certificates, or agreements
relating to zoning, operation, occupancy or use of the Properties;
especially as the same relate to the Tower, and
Page 4 of 10
4.1.1.3 Copies of any surveys, soils and/or engineering reports, feasibility studies,
site plats and plans, and other reports, studies or documents relating to the
Properties.
4.1.2 Physical Inspection. Buyer's inspection, review and approval of the physical and
environmental condition of the Properties within twenty-one (21) days of the
Effective Date.
4.1.3 Closing Obligations. Seller shall have complied with the Closing procedures set
forth in Article III, herein.
4.1.4 Approvals. This Agreement shall have been approved by the Board of County
Commissioners of the County of Weld ("County Board"), and in the event this
Agreement is not approved in its entirety by the County Board, neither the Buyer
nor Seller shall be bound by the terms of this Agreement.
4.2 Seller's Conditions:
4.2.1 Closing Obligations. Buyer shall have complied with the Closing procedures set
forth in Article III, herein.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Seller represents and warrants as follows:
5.1 Encumbrances. From the Effective Date until the Closing, except for the Permitted
Exceptions defined herein, Seller will not encumber the Properties or other
interests in any way nor grant any rights or contractual rights relating to the
Pr op e r t i e s or other interests without the prior written consent of Buyer.
5.2 Compliance with Governmental Regulations. To the best of Seller's current, actual
knowledge there are no orders or directives of any city, county, state, or federal authority
for repairs, maintenance work, or improvements to be performed on the Properties. To
the best of Seller's current, actual knowledge Seller has received no written notice from
any municipal, state, or other statutory authority relating to defects in any improvement
or noncompliance with any building code or restriction, applicable to the Properties that
has not been correct, or any threat of or impending expropriation or condemnation of the
Properties.
5.3 Condition of Properties. Seller will provide Buyer with a Seller's Properties disclosure
form completed by Seller to the best of Seller's actual knowledge as of the date
thereof. To the best of Seller's current, actual knowledge, Seller is not aware of any
Page 5 of 10
material defect or condition affecting the use, development or value of the
Properties including the presence of any hazardous wastes, toxic or other
contamination. To the best of Seller's current actual knowledge, the Properties are not
used and have not been used in the past as a waste disposal or landfill for hazardous
materials or sanitary landfill purposes.
5.4 Litigation. To the best of Seller's current, actual knowledge, no litigation is pending, or
to the best of Seller's knowledge, proposed, threatened, or anticipated with respect to any
matter affecting the Properties.
5.5 Contracts, Leases, and Agreements. Except as otherwise shown in the Commitment,
there are no leases, subleases, contracts, or other agreements, written or oral, regarding
the Properties, or granting to any party or parties the right to use or occupy the Properties,
which will survive Closing. From the Effective Date through the Closing Date, Seller
shall not enter into any lease or contract with respect to the Properties without Buyer's
written consent.
5.6 Compliance with Law. To the best of Seller's current, actual knowledge, Seller has
complied in all material respects with all laws, rules, regulations, ordinances, orders,
judgments, and decrees applicable to the Properties, and Seller has no current actual
knowledge of any proposed order, judgment, decree, governmental taking, or other
proceeding applicable to Seller which might materially and adversely affect the
Properties.
5.7 Utilities. Seller has not received any written notice of the curtailment of any utility
service supplied to the Properties.
ARTICLE VI
MISCELLANEOUS
6.1 Fees and Expenses Apportionment. Except as otherwise expressly set forth in this
Agreement, the Buyer and Seller hereto will each bear its own expenses in connection
with the transaction contemplated by this Agreement.
6.2 Possession of Properties. Possession of the Properties shall be delivered to Buyer at
Closing.
6.3 Default or Breach Prior to or at Closing.
6.3.1 Buyer's remedies for Seller's breach or default hereunder, or in the event, that, at
the Closing, any condition precedent to Buyer's obligations hereunder is not fully
satisfied as herein required, Buyer not being in breach or default hereunder, Buyer
may elect one of the following remedies to be exercised by or on behalf of the
Buyer, as Buyer's sole and exclusive remedy:
Page 6 of 10
6.3.1.1 Terminate this Agreement by giving Seller timely written notice of such
election prior to or at Closing, and thereupon this Agreement shall
terminate, and all parties hereto or mentioned herein shall be relieved and
released of all further obligations, claims and liabilities hereunder except
those that expressly survive any such termination of this Agreement; or
6.3.1.2 Waive, prior to or at the Closing, the applicable objection, default, or
condition and proceed to close the transaction contemplated hereby in
accordance with the remaining terms hereof without any adjustment in the
Purchase Price, and Buyer shall have the right to specific performance
thereof. Seller agrees to compensate Buyer for Buyer's expenses in
remedying a breach of contract.
6.3.2 If Buyer breaches its obligations pursuant to this Agreement, Seller shall have, as
its sole and exclusive remedy, the right to terminate this Agreement by giving
Seller timely written notice of such election prior to or at Closing, and thereupon
this Agreement shall terminate, and all parties hereto or mentioned herein shall
be relieved and released of all further obligations, claims and liabilities
hereunder.
6.4 Default or Breach After Closing. The terms of this Agreement may be enforced by either
Buyer or Seller by seeking any appropriate equitable or legal remedies, including
injunctive relief, specific performance, and damages.
6.5 No Third Party Beneficiary Enforcement. It is expressly understood and agreed that the
enforcement of the terms and conditions of this Agreement, and all rights of action
relating to such enforcement, shall be strictly reserved to the undersigned parties and
nothing in this Agreement shall give or allow any claim or right of action whatsoever by
any other person not included in this Agreement. It is the express intention of the
undersigned parties that any entity other than the undersigned parties receiving services
or benefits under this Agreement shall be an incidental beneficiary only.
6.6 Notice. Any notice required or permitted to be given under this Agreement shall be in
writing and shall be deemed given and effective when delivered by electronic mail,
Express Mail, Federal Express, or like service, or on the third mail delivery day after it is
deposited in the United States mail, postage prepaid by certified or registered mail, return
receipt requested, addressed to the parties as follows:
If to Buyer:
Board of County Commissioners of the County of Weld
P.O. Box 758
1150 O Street
Greeley, CO 80632
Page 7 of 10
If to Seller:
Note Acquisitions, Inc.
PO Box 1541
Dillon, Co 80435
do John C Gazzo
(303)471-1300
6.7 Risk of Loss. Seller shall be responsible for all risks of damage, loss, or injury to the
Properties and all Properties -owner liability prior to Closing. In the event any material
damage occurs to the Properties between the Effective Date and the Closing Date, Buyer
may declare this Agreement null and void.
6.8 Brokerage. Seller and Buyer hereby warrant to each other that no real estate agent or
other broker or finder is involved in this transaction. Seller agrees to indemnify and hold
harmless the buyer against any and all claims based in whole or in part on act of the
Seller for commissions, fees, or other compensation made by any such real estate agent,
broker, or finder as the result of the sale of the Properties contemplated hereby.
6.9 Governing Law. This Agreement shall be governed by Colorado law. Any warranties or
covenants by and between the parties agreed to herein shall survive the Closing and
transfer of title to Buyer and shall not be merged with the deeds.
6.10 Entire Agreement. This Agreement, including its exhibits and schedules, which are
hereby incorporated herein, shall constitute the entire agreement between Seller and
Buyer and supersedes any other written or oral agreements between Seller and Buyer.
This Agreement may be modified only by the written agreement of both parties.
6.11 Non -Merger. The rights, obligations, representations and warranties under this
agreement or under any other document entered into under this agreement will not merge
on closing.
6.12 Assignment. This Agreement shall be binding upon, and shall inure to the benefit of,
Seller and Buyer and their respective successors and assigns. Neither party may assign its
interest under this Agreement without the prior written consent of the other party.
Page 8of10
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date set forth above:
Buyer:
ATTEST: d....ed,A) w -ddo%g1
Weld County Clerk to the Board
By:
90.A.4,O„,.
puty Clerk to the Boar
STATE OF COLORADO
COUNTY OF WELD
Acknowledged before me this 7 day
of County Commissioners of the County of Weld.
WITNESS my hand and official seal.
My Commission Expires:
COUNTY OF WELD, a political
subdivision of the State of Colorado
Page 9ofl0
le Cozad, Chair
Board of County Co
of the County of Weld
0 9 2017
issioners
017, by Julie Cozad, Chair, Board
CHERYL LYNN HOFFMAN
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20144048044
MY COMMISSION EXPIRES DEC. 19, 2018
vtoi 7, 027G 9-
SELLER:
Note Acquisitions, Inc.
PO Box 1541
Dillon, Co 80435
y: hn C. Gaz
D. ector of the : oard and Shareholders
STATE OF COLORADO
COUNTY OF �Qt
22S7
Acknowledged before me thi31 day of'JU) l� , 2017, by, )O �., 4 2-LU
WITNESS my hand and official seal. J
My Commission Expires: 3'61 ALA
AMY ELIZABETH GIRTMAN
NOTARY PUBLIC
STA rE OF COLORADO
NOTARY ID 20174010696
MY COMMISSION EXPIRES MARCH 9, 2021
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