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HomeMy WebLinkAbout1990 Ordinance No. 013C 10 (b) BY l\tm!ORI'IY CJWl!WlCE NO. /.j 51:llIES OF 199_0_ OJUNCll. BILL NO. 13 INl'ROOUCED BY cnJNC:n. MEl-lBER BULLOCK l\N CJWINANCE FCR CQISENT 'IO mrRY OF RULE /\ND CJWER l\GREEING 'IO THE CXN)ErfiO.TIOO OF PROPERTY DESCW!ED m PENDING LITIGI\TIOO. WHEREl\S, the Englewood Urb!u, Renewal Authority (EURI\I, First National Bank of Englewood (FIIBE), ,,,,.,rican National Insurance Ccllp.my (l\lrerican National) and Cle-. •TrUst Realty Investors (Cleve'!'rllst) and the City of Englewood (City), are parties to pending litigation concerning a condP.!mation by the Englewood Urban Renewal Authority of property in which First National Bank of Engle-"°°d, ATerican National and CleveTrust have an interest ; and WHEREl\S, the parties hereto desire to resolve the disputes underlyinc:; the !'."'nding li tigaticn to the fullest extent possible and to reach a settleirent of the causes of action asserted; !KM, TIIEREFORE, BE IT ORDl\INED BY THE CITY OJUNCll. OF THE CITY OF EllGLEl·IOOD, COLORl\DO, l\S FOLLa\'S: Section l. The l\greerent between the Englewood Urban RF:,ewal Authority,. First Natior.al Bank of Englewood, l\rrerican National Insurance <:arpany and Cleve'!'rllst ne :.tl ty Investors and the City of Englewood is hereby approved. Said l\greement contains generally: l. Simultaneously with the execution and delivery of the l\greement FN!!E, .'\rrerican National and Cleve'!'rllst shall execute and deliver to EURA a Consent to Entry of Rule and Order agreeing t.o the condernrntion of the property described in t.>ie pending litigation and the total arrount of $494,900 as provided by the Ccnsent to Entry of Rule and Order . 'I.be $494,900 may be withdrawn frcr., the Court Registry by check payable to Merican Na ~ ional for ap;,lication against the mortgage held by l'lnerica., National on the First National Bank of Englewood Building. 2. l\s total ccq,ensaticn for any appraisal or expert costs the ElJRl\ agrees to reimburse Clinger and carpany for an appraisal of the property being acquired in the pending litigation in the M'Ount of $9,000. EUR/\ also agrees to the reimbursement of FNBE in the amount of $2,200 for its appraisal costs in this matter. 3. In addition to the consideration identified in the Consent to Entry of Rule and Order, EUR/\ and City agree that Cleve'!'rllst or if Cleve'!'rllst fails to exercise the option, FNBE shall have the right and option for a period of five (5) years fran the date of the l\greerent to purchase one of the parcels of land selected by the City at the tilte the City relocates as ,,-. depicted in EYJiibits to the Agreerren~ provided that said l 1 option may nc-t be exercised by Cleve'l'r11st or mm: unless City relocates all of its offices and services oot of its existing offices, in which event City shall mrnediately give CleveTrust and FNBE notice that the parcel referenced in the E:xhibi ts to the Agreen,~nt is now available to CleveTrust or FNBE. The purchase pn ,·e to be paid by CleveTruat or FNBE for said parcel will be $500,000. If CleveTrust exercises the option and acquires title to the property depicted in the Exhibit to the Agreerrent there are provisions as to and between CleveTrust and FNBE. 4. Notwithstanding the foregoing, in the event that litigation regarding the i.ltplementation of the Agreerrent is filed by ani party to the Agreerrent prior to the expiration of such option, the above refer enced period shall be autanatically extended for an additional 12 months or for a period which ooincides with the pendency of the litigation, whichever shall be greater but in no event shall the option period extend and conveyance be made later than 21 years fran the date of the Agreerrent . The Agreerrent also provides that the District Court in the County of Arapahoe Colorado shall be the appropriate forum for resolution of any dispute with respect to t.'le Agreerrent. s. City acknowledges and confirms that the remaining parking after t.'ie acquisition by EURA in the pending litigation (383 spaces) is satisfactory under existing zoning requirements for the present develoµrent of FNBE' s remaining property, i.e. the First National Bank of Englewood. 6. CleveTrust is organized to operate as a real estate inves~nt trust and no obligation ,;if the Trust is personally binding upon t.'1e private property of any of the trustees, shareholders, officers, e,rployees, o,: agents of the Trust, but only the above described property or a ~-pecific portion thereof shall be bound. 7. The Agree:i-ent along with the Consent to Entry of Rule and Order crrbodies and constitutes the entire understanding airong the parties with respect to matters set forth therein. 8. The p :ties acknowledge and agree that :;,~ ;.;;r teirent may be executed in counterparts, but shall only becooe a binding agreerrent t.pon all parties having executed at least five copies of the Agreerrent. -2 - section 2. The 1-!"vor is authorized to sign for and on behalf of the Cit of Engleo.ood, and "the City Clerk shall attest on behalf of the City of Englewood. Introduced, read in full, and passed on first reading on the 3rd of l\pril, 1990. Published as a Bill for an Ordinance on the 5th day of ~il, 1990. Read by title and passed on final reading on the 16th day of ~il, 1990. Publishl!d by title as Ordinance No ./J.., Series of 1990, on the 19th day of April, 1990. ~~"&(/j.~ Patricia 11. Crow, City Clerk I, Patricia H. Crow, City Clerk of the City of Engleo.ood, Colora~, hereby certify that the foregoing is a true COP'i of the Ordinance passed on final reading and published by title as Ordinance No • .(3 , Series of 1990. ~s.#-~ Patr1c1a H. Crow -3 - DATE April 3, 1990 · INITIAlED BY STAFF SOURCE ISSUE/ACTION PROPOSED CotllCIL COIIIUNICATION A&ElllA ITEM 12 (b) SUBJECT EURA Acquisition of First National Bank Property for Englewood Parkway . En~lewood Urban Renewal Authority Richard S. Wanush, Director of Co11111unity Development Autho "ize Mayor to execute agreement with CleveTrust et al granting an opt i on to purchase no more than 21,267 square feet of land at the southern end of the present City Hall site if the City decid es to relocate the City Hall within five years . PREVIOUS COUNCIL ACTION The City Council adopted and aprroved Urban Renewal Plans from 1982 to 1985, which contained provisions permitting the EURA to exercise emin~nt domain authority in implementing the plans . On January 15 , 1990, City Council authorized the transfer of $337 ,830 to the EURA to settle the land condemnation case with CleveTr ust and First National Bank of Englewood. STAFF ANALYSIS CleveTrust has alway s contended that their main .concern regarding the EURA taking of the 21 ,267 square feet was not the monetary value of the land, but the value of the land for parking . They have maintained throughout our negotiations that the loss of parking space has a long term detrimental impact on their ability to lease the building . By provid i ng an option to purchast a similar amount of la1 j adjacent to their property , we are directly meeting their needs . If the option is exercised, the ex i sting Ci ty Hall property would contain, at a minimum, 103,748 square feet or 2 .38 acres of land. This remaining portion would be highly marketable for retail/co11111erc1al uses . In addition, we would have received $500,000 from CleveTrust, which would be well above market value, for the optioned land. See the attached 1/15/90 Council Co11111unication for additional details . Th• attached agree111nt wi ll settle all ■attars UN>ng the parties. An ordinance 1s required because the City 1s conveying an Interest In real property under Article IX, Section 72 of the C1ty of Engle110od H-Rule Charter. MCKUOIN) S11 attachments . FINANCIAL The City hu al ready transferred $337,830 to the Englewood Urban Renewal Authorl ty . ·~:.:.:•.,, DATE January 15, 1990 INITIATED BY STAFF SOURCE ISSUE/ACTION PROPOSED COUNCIL COHHUNICATION AGENDA ITEK SUBJECT EURA Acquisition of First National Bank Property for Englewood Parkway . Englewood Urban Renewal Authority Richard S. Wanush, Executive Director of EURA Tha CURA acquisition of a 21,267 square foot parcel of land from First National Bank has been in condemr.atlon proceedings since 19B4 . Staff has made an offer of $500 ,000 for settlement and the offer was accepted . We are requestin g that the City Council approve the transfer of S337, B30 to the EURA t o add to the S 162,170 a 1 ready / co11111ltted so that the transaction car. be consummated . '._) PREVIOUS COUNCIL ACTION The City Council has adopted and approved Urban Renewal Plans from 1982 through 1985 . These approvals permitted the EURA to exerci se its eminent domain authority In carrying out the approved plans . In Januory of 1989 , the EURA preseroted the issu es surrounding t his proceeding in study session dnd requested that the City Counc11 authorize up to $600,000 for the settlement of this case. The Council was reluctant to specify a number since It could influence negotiations . Council did, however , pledge its support to any reasonable settlement. • STAFF ANALYSIS The EURA acquired use of a 21 ,267 square foot portion of t he First National Bank property fo r Englewood Parkway and required turning lanes . (See attached map .) This acqu i si t ion ellr i nated 49 parking sp aces on th e First National Bnnk lot . While · th a EURA made use of t he land and an eminent ~nm ain action was filed in 1~84, the EURA never acquired t i tle to the pro~erty. The EURA's original Intention wis to straighten Hampden Place so that the ·Intersection with South El atl Street would be moved further from U.S. 285. The City Hall site would then have been redeveloped and a new City Hall located elsewhere. The land made available from straighten i ng Hampden Place would then be traded for the land taken fr om First National Ba nk . Subsequently, downtown development plans changed and discussions regarding the land exchange were put on hold. With potentially large legal fees in a condemnation proceeding, there was no motivation to proceed . W1 have re cently reopened negot 1at ions with Cl eve Trust, the party res pons i bl e for following through on the condemnation proceedings. Since we could no longer guarantee the City Hall site, a straight land exchange was out of the question. Appraisals were done on both sides and ranged from ours of S315,000 to theirs of approximately Sl,200,000. Because of costs of condemnation proceedings and the uncertainty of the outcome, CleveTrust and staff have agreed to a price of S500,000 . Since the EURA has al ready deposited the sum of SI 62,170 with the Court, an additional S337,830 is needed to consumate the deal. The EURA has no available funds of its own, and is requesting that the City transfer S337,830 to the EURA. Since we could not guarantee to CleveTrust that we would vacate the existing City Hall site within any given time frame, we proposed that any agreement exclude any language relating to a land trade . It was our feeling that any agreement should be f1nal, without contingencies. It is difficult to anticipate problems that may arise over time so it is generally wise to come to a conclusion. Also, if the City did decide to relocate and make the land available for development there would be more land. CleveTrust responded by s aying that they wanted "exchange • language in the agreement that would give them an option to purchase an equivalent amount of City land if the City Hall were to relocate . In addition, they would pay the same amount (SS00,000) we paid for their land minus the cost of constructing a parking lot. We ,,reed to forward this proposal to Council if the cost of the parking lot were borne by them. They agreed. I have already pointed out some negative aspects to agreeing to "contingencies', There are also the following positiv~ aspe cts: 1. The agreement is only for five years. It has ·a definite end . 2. We would vacate a portion of Hampden Place first , then transfer the land to CleveTrust . Half of the vacation would revert to the City which would then become part of> the approximately 21,267 square feet that would be sold . 3. We will receiv"e more money for the land than if 1t were sol d at market value . (Assuming relatively stable land values over the ne xt five years .) 4 . Moving t he intersection at Hampden Place and South Elati Street further nort h hel ps mitigate a current traffic problem . BACKGROUND See Staff Analysis. :..!.!!M!ill!: Thi total cost ijf the property 1s S500,000. Since $162 ,170 1s available from the EURA, the City needs to transfer S337 ,830 to the EURA. AGREEMENT THIS AGREEMENT, dated this day of January, 1990, by and between ENGLEWOOD URBAN RENEWAL AUTHORITY, a Body Corporate and Politic of the State of Colorado ("EURA"), Petitioner, and FIRST NATIONAL BANK OF ENGL:;WOOD, COLORADO, a National Banking Association ("FNBE"), AMERICAN NATIONAL INSURANCE CO:-!PANY, a Texas Corporation ("American Nar.ior,al"), c,nd CLEVETRUST REALTY INVESTORS, a Massachuietts unincorporat.ed assoc iaT:ion ("CleveTrust.11 ), Respondents, a,~cl thn CITY OF ENGLEWOOD, a Municipal corporation of the State of Colora,10 i "( .ty") . Wr.EREAS, EURA, FNBE, Ameri=an National a:id CleveTrust are parties to pending Ltigation concerning a condemnation by EURA of property in which FNBE, American National and CleveTrust have an interest, said litigation being en.titled Enolewood Urban Renewal Authority v . First National Ban~ o f Enolewood, a National Bankino Association. et al., Case No. 84 CV 1429, District Court, County of Arapahoe, State of Colorado ("Pending Litigation"); and WHEREAS, the parties hereto desire to resolve the disputes underlying the pending litigation to the fullest extent possible and to reach a settlement of that claim ·and the causes of action asserted or permissible therein, and to that extent have concurrently herewith executed a Consent to Entry of Rule and Order in that action. NOW THEREFORE, for and in consideration of contained within the Consent to Entry of Rule and herewith, and the terms and mutual agreements contained herein, the parties agree as follows: the agreements Order executed and covenants 1. Si.multaneously with the e xecution and delivery of this Agreement, FNbE, American National and CleveTrust shall execute and deliver to EURA a Consent to Entry of Rule and Order agreeing to the condemnation of the property described in the pending litigation in tt!e total' amount of $494,900. As provided by the Co nsent to Entry of Rule and Order, the $494,900 may be withdrawn from the Court Registry by check payable to American National for app lication against the mortgage held by American National on the F i rst National Ban~ of Englewood Bu il ding . A form ~f the Consent to Entry o:: ?.ule and Order is attached hereto as Exh ibit A. Further, EURA, Cl.eveTrust, American Nati onal and FNBE have authorized their counsel of reco r d to agree to and approve as to form a proposed ?.ule and Order to be entered in the pending litigation. 2 . As total compensation for any appraisal or uxpert costs, EURA agrees to reimburse Clinger & Company for an appraisal of the ..... - "" property being acquired in t he pendi~g l itigation in tr.e amc un t c : S9,000. EURA also agrees to reimburse FNa E in the amoun t of $2,200 for it s appraisal costs i n this mat ter. 3. In addition to the co n sideration iden tified in th!' Consent to Entry of Rule and Orcer, EURA and City agree that CleveTrust or, if CleveTrust fails to exercise the option, rNBE shall have the right and option for a period of five (5) years from the date of t h is Agreement to pur cha se one of the parcels of land selected by the City at the time the Ci ty relocates, as dep i cted in Exhibit a attached hereto, provided that said op t ion may not be exercised by CleveT rust or FNaE unless City relocates all of its offices and services out of it s existing offices, in which event City shall immediately gi ve CleveTrust and FNBE notice that the parcel referenced in Exhibit a is now available to CleveTrust or FNBE. The purchase pr ice t o be paid by CleveTrust or FNBE fo r said parcel would be S~~a ,000 . If Cleve Trust exercises the option and acquires title to the property depicted in Exhibit 3, CleveTrust shall convey the land to FNBE which shall then i nclude thft additional land i n the Lan d Lease for the Bank Buildi ng P~operty dated as of Janu ary 17, 1969, as amend ed, and CleveTrust sha l l also include the additi ona l land under it s Space Lease sublea se wit h FNBE, with each party agreeing t ha t there shall be no increase in rental due under said ~and Lease or the Bank Sublease, provided howe ve r that CleveTru st shall have the right to increase its outstanding mortgage on the le.asehold improvements by the amount of the purchase price set forth a bove, whether at t he time of purchase or in connection wi th a later refinancing, FNBE agreeir, to subordinate all of its land whi ch i s coveted by the Ground Lease to the increased mortgage in accordance with Article X, Paragraph E of the Land Le a se as amended herein. If FN BE exercises t he oot i on and acquires tit le to the land depicted in Exhibit B, sai d iand need not be made available to CleveTrust under the Land Lease, FNBE hav i ng the sole right to us e said land as it shall determine . 4. Nocwithscandi n~ the for egoing, in the event chat l i tigation regardi ng the implement ation of thi s Agreement is filed by any party hereto prior co t he e xpi rat i on o f _such option per i od, the above-refere,nced period s h a ll be aut omatically extended for an additional cwelV'!! (12) months or f or a period wh ich c oincides with the pendency of the litigation, whichever sha.l be greater, but in no event s ha ll the option pe riod e xt end and co nveyance be mad e later than 21 years from the dace hereof. All parties to this Agreement agree that the Dis tr ict Cour t in the Cou nty of Arapahoe, State of Colorado sha ll be the accroc r i ate f or um for res olution of any dispute with re spect t o th i s Ag re ement and consent to the jurisdiction thereof . 5. City acknowledg~s a nd confirms that the remaining parking, after the acqu i s i tion by EURA in the Pending L:.t .\gat ion (383 spaces), is satisfact ory un der existing zoning requirements f or the present development of FNBE's remaining property; i.e., the First National !lank of Englewood !luilding. 6. CleveTrust Realty Investors is a Massachusetts business trust which is organized to operate as a real estate invest~ent trust and is governed by the terms of a First Amended and Restated Declaration of Trust dated as of January 19, 1971, as amended. No obligation of the Trust is personally binding upon, nor shall resort be had to the private property of a ny of the Trustees, shareholders, officers, employees or agen c , of the Tr u st , c~r the above-described property or a specific p~rtl ~n t he reo f ~~ly shall be bound. ? • This Agreement, along with the Consent t c-Ent.::y of Rule and Order and Rule and Order attacher1 hereto, ~.,.~-; ii.u and constitutes the entire understanding amo ng ~h o p11r tle s ;~r,:, re spect to the matters set forth l ,erein, and all prior cor . ~mpo raneous agreements, understandings, representations and stateme :,t s, oral or written, are merged into this Agreement. The prov i sions of this Agreement shall be binding upon an d shall inure to the be nefit of the parties hereto and thei~ respective successor3 1 he i rs, executors, administrators and a !,. 'gns. 8. The parties acknowledge and agree that this Agreement may be executed in counterparts, but shall only become a binding Agreeme nt upon all part ies hav i ng executed at least five (5) copies of this Agreemer,t. IN WITNESS WHEREOF, this Agreement has been executed by the c parties hereto or their duly aut~orized representatives on the cay and year first above written. ENGLEWOOD UR BAN RENEWAL a body corporate and politic of the State of Colorado By =R~i-ch-ar_d_s-. ~W~a_n_u_s~h------- Executi ve Director FIRST NATIONAL BANK OF ENGLEWOOD, COLORADO, A National Association By=T~it....,l~e-,----------- AUTHORITY, Banking AMERICAN NATIONAL INSURANC~ CO:-IPAN¥, A Texas Corporation By =r~1-1~e_: ___________ _ CLEVETRUST REALn ::NVESTORS, A Massachusetts unincorporated Association By "'T.,.it,-1.-e_: ___________ _ CIT¥ OF ENGLEWOOD, A Munlcipal Corporat ion By APPROVEDA&l'O ~Ofl-"-\', =r~it-l~e-.-. ------------ Rick DeWitt City Attorney By ____________ _ EXHIBIT B The =~uth 76.46 feet of the North 450 feet or the East 1/2 of the SE 1/4 SW 1/4 SW 1/4, Section 34, Township 4 South, Range 68 West, EXCEPT the West 17 feet thereof as d .scribed in Book 632 at Page 256, County of Arapahoe, State of Colorado, and EXCEPT that portion of the South 76.46 feet of the North 450 feet of the E 1/2 SE 1/4 SW 1/4 SW 1/4 of Section 34 , T.4S., R. 68 W. of the 6th P.M., City of Englewood, Colorado, lying south of the easement for a public street or hi~hway as described in an easement grant dated December 1, 1 966 from Longmont Company, et al. as Grantors to City of Englewo od ~s Grantee, recorded in the records of Arapahoe County, Colorado, at Book 1718, Page 425. Said parcel contains 21 ,267 square feet. NOTE: This description includes the portion of Hampden Place as described in Book 17ll Page 425. ;~rr.~NWl~,:.r:.~;;;;;:~ I o' so' EN'iLEWOOD CITY HALL (TRACT 122,292± Sq. Ft.) !TOTAL 125, 015! Sq. Ft. l '1 2 ii . BL£ 5: EXHIBIT B The South 127,38 .feet of the North 450 feet of the East 1/2 of the SE l/4 SW 1/4 SW 1/4, Section 34, Township 4 South, Range 68 West, EXCEPT t he West 17 feet thereof as described in Book 632 at Page 256, County of Arapahoe, State of Colorado, and EXCEPT that portion of the South 127.38 feet of the North 450 feet of the E 1/2 SE l/4 SW 1/4 SW 1/4 of Section 34, T,4S,, R, 68 W. of t h~ 6th P.M., City of Englewood, Colorado, lying south of the easement for a publ ic street or highway as described in an easement grant dated December l, 1966 fr om Longmont Company, et al. as Granters to City of Englewood as Grantee, recorded in the records of Arapahoe :ounty, Colorado, at Book 1718, Page 425, and except Book 1718 Page 425. Said parcel contains 21,267 square feet.