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HomeMy WebLinkAbout8710RESOLUTION NO. 8710 A RESOLUTION APPROVING AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND UNIVERSAL BOILER WORKS, INC. RELATING TO A JOB CREATING CAPITAL IMPROVEMENT PROJECT AND AUTHORIZING THE TRANSFER OF LAND AND THE EXPENDITURE OF $550,000 THEREFOR FROM THE 1992 -2001 SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS FUND WHEREAS, Universal Boiler Works, Inc. (the "Company ") has expressed a willingness to locate its business activities at the Pueblo Memorial Airport Industrial Park and has committed to employ sixty (60) full time employees, and WHEREAS, Company through the Pueblo Economic Development Corporation has made application for funds from the 1992 -2001 Sales and Use Capital Improvement Projects Fund and conveyance of land at Pueblo Memorial Airport Industrial Park, and WHEREAS, the land requested to be conveyed is surplus to the City's needs, and WHEREAS, the City Council is willing to approve such application for funds upon the terms and conditions set forth herein; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The City Council does hereby find and determine that Universal Boiler Works, Inc.'s application for funds meets and complies with the criteria and standards established by Ordinance No. 6381 and will create employment opportunities justifying the expenditure of public funds. SECTION 2. The Agreement dated as of May 24, 1999 between Pueblo, a municipal corporation and ' s Universal Boiler Works, Inc. and Warranty Deed attached thereto having been approved as to form by the City Attorney, are hereby approved. The President of the City Council is authorized to execute and deliver the Agreement and Warranty Deed in the name of the City and the City Clerk is authorized and directed to affix the seal of the City thereto and attest same. SECTION 3. Funds in an amount of $550,000 are hereby authorized to be expended and made available to Universal Boiler Works, Inc. out of the 1992 -2001 Sales and Use Tax Capital Improvement Projects Fund for the sole purpose of the job creating capital improvement project and in the manner described in the attached Agreement. The funds hereby authorized to be expended shall be released and paid by the Director of Finance to or for the benefit of Universal Boiler Works, Inc. after receipt (i) by the City Clerk of the documents required to be filed pursuant to paragraph 2(c) of the Agreement and (ii) by the Director of Finance of written requests for payment required by paragraph 2(e) of the Agreement. SECTION 4. This Resolution shall become effective upon final passage. INTRODUCED May 24, 1999 BY Rich Golenda C APPROVED: i1► �— (��i�1 President of of the Council ATTEST: ._.. 0 �. a MAY 24, 1999 AGENDA CITY COUNCIL BACKGROUND MEMORANDUM RESOLUTION APPROVING AGREEMENT WITH UNIVERSAL BOILER WORKS, INC. RELATING TO A JOB CREATING CAPITAL IMPROVEMENT PROJECT AT PUEBLO MEMORIAL AIRPORT INDUSTRIAL PARK A Resolution is being presented to City Council for approval of an Agreement with Universal Boiler Works, Inc. (the "Company "). Company intends to locate its manufacturing business at Pueblo Memorial Airport and has committed to employ 60 full -time employees during a 7 year Repayment Period starting no later than May 31, 2002. City will advance $300,000 to Company ( "City Funds ") and loan an additional $250,000 to Company (the "Loan Funds "). Company will spend City Funds and Loan Funds for constructing and equipping an approximately 30,000 square foot manufacturing facility on approximately 4.71 acres of land at Pueblo Memorial Airport Industrial Park to be transferred by City to Company. The Loan Funds will be repaid in 120 monthly installments of principal and interest at 4.5% per annum. The Loan Funds will be evidenced by Company's promissory note and secured by a first deed of trust on the land and facility. Company anticipates spending approximately $1.7 million to construction and equip the facility including City Funds and Loan Funds. If Company defaults in its employment commitment during the 7 year repayment period starting no later than May 31, 2002, Company shall repay to City a pro -rata share of City Funds based upon employees actually employed by Company. Company's repayment obligation will also be secured by the deed of trust. The financial details of Company's project including job commitment and repayment obligations were negotiated by the Executive Committee of Pueblo Economic Development Corporation ( "Executive Committee "). The Executive Committee evaluated the business and financial ability of Company to fulfill its employment commitment, financial and other contractual obligations under Company's Agreement, and recommended that the City Council approve Company's project and related transactions. a City of Pueblo OFFICE OF THE CITY ATTORNEY 127 Thatcher Building PUEBLO, COLORADO 81003 MEMORANDUM TO: Gina Dutcher, City Clerk FROM: City Attorney RE: Universal Boiler Works, Inc. DATE: May 17, 1999 We herewith deliver to your office the required original and disc and copies of Resolution with attached Exhibit approving an agreement with Universal Boilder Works, Inc. and City Council Background Memorandum together with (a) two execution copies of the Agreement previously signed by a representative of Universal Boiler Works, Inc. which are to be executed by the City (do not execute the Exhibits attached to the Agreement), after execution by City, return one execution copy to me, and (b) original Warranty Deed, please have executed, acknowledged and return to me. If you have any questions, please call me. -3 Very truly yours, Thomas E. Jagger a sm enc. AGREEMENT THIS AGREEMENT entered into as of May 24, 1999 between Pueblo, a municipal corporation (the "City ") and Universal Boiler Works, Inc., a Missouri corporation (the "Company "). WHEREAS, Company has expressed a willingness to locate its business within the Pueblo Municipal Airport Industrial Park, and in furtherance thereof has through the Pueblo Economic Development Corporation made application for funds and land with the City, and WHEREAS, the City has approved such application and will make funds and land available to Company subject to and upon the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Company agree as follows: 1. The following terms as used in this Agreement shall have the following meaning unless the context clearly indicates otherwise: "Deed of Trust" means Company's deed of trust on the Property and Facility in substantially the form and content of attached Exhibit "C" securing payment of the Promissory Note and Company's obligation under this Agreement which shall be a first and prior lien on the Property. "Employment Commitment Date" means the first day of the twenty -fourth (24th) calendar month after the calendar month in which a certificate of occupancy for the Facility, or May 31, 2002, whichever occurs first. "Equipment" means the equipment described in the attached Exhibit "D." "Facility" means the approximately 30,000 square foot manufacturing facility to be constructed and equipped by Company on the Property. "Full -Time Employee" means a person who actually performs work at the Facility for not less than thirty -two (32) hours per week whether employed by Company or by an outside entity acting as an agency to provide Full -Time Employees for Company. The term "Full -Time Employee" does not include independent contractors nor employees of independent contractors except as described herein. "Promissory Note" means Company's promissory note in substantially the form and content of attached Exhibit "B ", in the original principal sum of $250,000.00 together with interest at the rate of 4.5% per annum payable by Company to the City in 120 equal monthly installments of principal and interest. "Quarterly Employees" means the sum of the number of Full -Time Employees on each business day of a Quarter divided by the sum of the business days in such Quarter. "Quarter" means three consecutive calendar months. "Property" means the approximately 4.71 acres of land located at Pueblo Memorial Airport described as Lot 40, Pueblo Memorial Airport Industrial Park Subdivision, Pueblo County, Colorado. 2. City will advance to or for the benefit of Company funds in the amount of $300,000.00 (the "City Funds "), and loan to Company the additional sum of $250,000.00 in accordance with the provisions of paragraph 7(d) hereof (the "Loan Funds "), subject to and contingent upon the following conditions and covenants which Company agrees to perform and comply with: (a) Company shall use and all City Funds and Loan Funds shall be spent solely for the cost of constructing the Facility and acquisition of Equipment. (b) Company shall cause the Facility to be constructed and equipped in an expeditious manner. (c) Company shall file in the office of the City Clerk copies of the following: (i) Company's certificate or other evidence of authority to transact business in the State of Colorado, (ii) certified copy of the resolution of the governing board of Company approving this Agreement, Warranty Deed, Promissory Note and Deed of Trust and authorizing its officers to execute and deliver this Agreement, Warranty Deed, Promissory Note and Deed of Trust in the name of Company, and (iii) evidence satisfactory to City that Company is diligently proceeding to construct the Facility and locate its business on the Property. The date of such filings is herein referred to as "Closing." If Closing does not occur on or before September 1, 1999, or such later date as Company and City shall mutually agree, this Agreement shall terminate and City and Company shall be released and discharged from all obligations hereunder. (d) All construction contracts for the Facility shall be awarded by Company by competitive bidding. Company shall invite general contractors holding Building Contractors -A (General Unlimited) licenses having their principal place of business in the City or County of Pueblo who are qualified and experienced to perform construction work for the Project ( "Local Contractors ") to submit bids. Company may invite other qualified general contractors with their principal place of business outside of Pueblo County, Colorado to submit bids. Company shall assure that the same scope of work to be bid is timely furnished to each general contractor invited to bid. For "design- build" or other contractual arrangements, this requirement may be accomplished by a pre -bid conference or other acceptable competitive bidding procedure which allows Local Contractors a reasonable opportunity to participate in the competitive bidding procedures. All bids will be received and opened publicly. Company will use its best efforts in good faith to award the construction contract to the lowest qualified bidder. A similar provision with respect to local subcontractors and suppliers shall be included as part of the construction contract between the Company and the general contractor who shall use its best efforts in good faith to engage local subcontractors and suppliers for such construction. If Company, its employees or agents negotiate with a general contractor, subcontractor or supplier with respect to the Facility prior to competitive bidding, Company shall not enter into any construction contract with such general contractor, subcontractor or supplier for the Facility. "Negotiate" means to discuss, confer upon, or arrange the terms and conditions of a construction contract including, without limitation, obtaining estimates of construction costs. (e) Company filing with the Director of Finance of City written request for payment certified by an officer of Company that the amounts included in the requests for payment have not been included in any prior request for payment and are for (i) the actual cost of constructing the Facility, identifying the portion of the Facility for which payment is sought, including certificates of the architect or engineer and contractor that such portions of the Facility have been installed, or (ii) acquisition of Equipment, identifying the equipment including invoices and certificates of delivery and installation in the Facility. 3. Company acknowledges and agrees that the primary purpose of City in entering into this Agreement and the sole benefit to the City for making City Funds and Loan Funds available to Company hereunder is the creation of jobs. Therefore, Company represents, covenants, and agrees that it will employ not less than sixty (60) Full -Time Employees at the Facility by the Employment Commitment Date and thereafter (the "Employment Commitment "). 4. Notwithstanding anything contained herein to the contrary, if Company shall for any reason default in its Employment Commitment set forth in paragraph 3 hereof, Company shall repay to City a pro -rata share of the City Funds advanced by City under paragraph 2 hereof based upon the number of Full -Time Employees employed by Company at the Facility (the "Repayment Obligation "), as follows: (a) During the seven (7) year period starting on the Employment Commitment Date and ending eighty -four (84) months thereafter (the "Repayment Period ") Company shall pay to City an amount each Quarter equal to the Quarterly Employees less than sixty (60) employed at the Facility by Company multiplied by $178.57 (the "Company's Quarterly Payments "). For example, if for the Quarter ending June 2001 the Quarterly Employees is 50, the amount payable by Company to City on or before July 15, 2001 would be (60 - 50) x $178.57 = $1,785.70. (b) Company's Quarterly Payments, if any, shall be paid to the City without notice, demand, deduction or setoff on or before the fifteenth (15th) day of the month after the end of each Quarter during the Repayment Period and for one month thereafter at the office of the Director of Finance of City, 1 City Hall Place, Pueblo, Colorado, 81003. All past due Company's Quarterly Payments shall bear interest at the rate of ten (10) percent per annum until paid. (c) Within fifteen (15) days after the end of each Quarter after the Employment Commitment Date and for one calendar month after the Repayment Period, Company will submit to City's Director of Finance Company's statements showing the Quarterly Employees for the preceding Quarter and the basis upon which Quarterly Employees and Company's Quarterly -3- Payment were computed certified by an officer of the Company to be true and correct. For purposes of verifying such employment, City shall have access to Company's books and records including payroll records. City will, however, respect the right of employees and Company as to confidentiality of personnel records. (d) If Company defaults in its Repayment Obligation and /or Employment Commitment and such default is not cured within sixty (60) days after written notice specifying the default is given by City to Company, or if the indebtedness evidenced by the Promissory Note is accelerated as therein provided, then in either event, City may declare the entire balance of Company's Repayment Obligation due and owing together with interest thereon at the rate of ten (10) percent per annum, and for such purpose, the entire balance of Company's Repayment Obligation shall be an amount equal to 60 times $178.57 multiplied by the remaining Quarters of the Repayment Period plus the amount of Company's unpaid Quarterly Payments, if any, but in no event more than the amount of City Funds advanced by City under paragraph 2 hereof and interest as herein provided. The rights and remedies of City under this Agreement, Promissory Note and Deed of Trust shall be cumulative. Company's Repayment Obligation is absolute and unconditional and shall not be abated, reduced, diminished, modified, withheld or otherwise offset for any cause or reason whatsoever. 5. All City Funds advanced to Company by City under this Agreement shall be deemed to be a debt of Company payable to City until Company performs and discharges its obligations hereunder including its Repayment Obligation contained in paragraph 4 and shall be secured by the Deed of Trust. Any uncured default under this Agreement shall also constitute a default under the Promissory Note and Deed of Trust and such default may cause the Acceleration of the indebtedness evidence by the Promissory Note. 6. (a) City Council of City may, in its sole discretion, relieve Company, in whole or in part, from Company's Repayment Obligation set forth in paragraph 4, if the City Council, after public hearing, finds and determines based upon competent evidence presented at such hearing that Company was prevented from complying with its Employment Commitment by reason of an act of God, or the elements, fire, explosion, strike, insurrection, riot, shortage or unavailability of materials, supplies or labor, interruption of transportation facilities, governmental laws, regulations or restrictions, or other causes beyond Company's reasonable control. The findings and decision of the City Council shall be final and binding upon Company and City. (b) Prior to instituting any proceedings to enforce Company's Repayment Obligation under paragraph 4, City shall notify Company in writing of its intention to institute such proceedings. If Company desires to seek relief pursuant to paragraph 6(a), Company, within twenty (20) days after receipt of City's notice, shall deliver to City its written request for relief specifying the grounds upon which such relief is sought. Within sixty (60) days after receipt of Company's request, City will schedule a hearing before the City Council and give written notice to Company of the time and place of such hearing. Failure of Company to timely deliver its written request for relief or to appear and submit evidence in support of its request at a scheduled hearing shall M constitute a waiver of any right of Company to a hearing before City Council. (c) No delay by the City in scheduling a hearing, or failure by City to exercise its right to enforce Company's Repayment Obligation, and no partial or single exercise of that right, shall constitute a waiver of that right, unless the City Council otherwise expressly provides in its findings and decision made pursuant to paragraph 6(a). 7. (a) Within thirty (30) days after Closing, City will convey title to the Property to Company by Warranty Deed substantially in the form and content of the Warranty Deed attached hereto as Exhibit "A." Company at its expense will obtain all surveys and title insurance for the Property. Company acknowledges and agrees that (i) City owns the Property subject to restrictions in the deed to the City from the United States of America recorded in Book 1074, Page 87, Instrument No. 819072 of the records of the Pueblo County Clerk and Recorder, and (ii) the construction of the Facility and transfer and conveyance of the Property are subject to the prior approval of the Federal Aviation Administration (the "FAA ") and its issuance of all necessary permits and deed of release therefor. Upon receipt from Company of the necessary plans and description of the Facility, City will cause to be filed all required applications and documents for FAA's approval, permits, and deed of release and will diligently pursue their issuance. (b) Company acknowledges and agrees that the Property is unimproved, undeveloped real property and is being sold, purchased and conveyed "AS IS" and "WHERE IS" in its present condition with all its faults. Company acknowledges and agrees that City has not made, does not make and specifically negates and disclaims any representations, warranties, promises, covenants, agreements or guaranties of any kind or character whatsoever, whether express or implied, verbal or written, past, present or future, of, as to, concerning or with respect to: (i) the value, nature, quantity, quality or condition of the Property, including without limitation, the water, soil and geology; (ii) the suitability of the Property for any and all activities and uses which Company may conduct thereon; (iii) the compliance of or by the Property or its operation with the laws, rules, ordinances or regulations of any applicable governmental authority or body; (iv) the merchantability, marketability, profitability or fitness for a particular purpose of the Property; or (v) any other matter with respect to the Property, and City specifically disclaims any representations regarding compliance with any environmental protection, pollution or land use laws, rules, regulations, orders or requirements, including solid waste, or the disposal or existence, in or on the Property, of asbestos or any hazardous substances. Company further acknowledges and agrees that having been given the opportunity to inspect the Property, Company is relying solely on Company's own investigation of the Property and not on any information provided or to be provided by City. City is not liable or bound in any manner by any verbal or written statements, representations or information pertaining to the Property, or the operation thereof, furnished by any representative, agent, employee, servant or other person. Company and anyone claiming by, through or under the Company hereby fully and irrevocably releases City, City's employees, representatives and agents, from any and all claims that Company may now have or hereafter acquire against City, City's officers, employees, representatives and agents for any cost, loss, liability, damage, expense, demand, action or cause of action arising from or related to any defects, errors, omissions or other conditions, including environmental matters, affecting the Property, or any portion thereof. -5- (c) Contemporaneously with the execution and delivery of the Warranty Deed, Company shall execute and deliver to City the Promissory Note and the Deed of Trust in recordable form, both having been completed and executed in a manner acceptable to City's City Attorney. After recording the Warranty Deed and the Deed of Trust, the Deed of Trust shall be a first and prior lien on the Property superior to all other liens and encumbrances except general property taxes. (d) After execution and delivery of the Promissory Note and recording of the Deed of Trust, City will advance to or for the benefit of Company the Loan Funds, i.e., the $250,000.00 evidenced by the Promissory Note, upon and after Company's compliance with the conditions set forth in paragraph 2 hereof. The Loan Funds will be first advanced to Company and after the Loan Funds have been fully advanced to Company, City will advance the City Funds to Company. It being the intent that the Loan Funds will be used first in the construction of the Facility and acquisition of Equipment. 8. In the event of any litigation arising out of this Agreement, the court shall award to the prevailing party its costs and reasonable attorney fees. All such litigation shall be filed in the District Court, County of Pueblo, State of Colorado and each party submits to the jurisdiction of that Court. To the extent allowed by law, each party waives its right to a jury trial. 9. This Agreement expresses the entire understanding of the parties and supersedes any and all prior dealings and commitments with respect to the subject matter of this Agreement and may not be amended except in writing signed by City and Company. 10. This Agreement shall be construed in accordance with and governed by the laws of the State of Colorado without regard to conflict of law principles. 11. The covenants, representations and warranties made by each party herein shall survive the Closing for the benefit of the other party. 12. Company acknowledges and agrees that City reserves the right, without any obligation on its part to do so, to maintain and keep in repair the landing area of the airport and other public areas or facilities at Pueblo Memorial Airport and to develop, modify, change, relocate, abandon, or improve the Pueblo Memorial Airport, or any part thereof as it may determine in its sole and absolute discretion, at any time, and Company further acknowledges and agrees that City has not made, nor by any provision of this Agreement or Warranty Deed shall City be construed to have made any representation or warranty to the contrary with respect thereto. 13. Any notices hereunder shall be sufficiently given if given personally or mailed by first class mail, postage prepaid, addressed: (a) if to City, City Manager, City of Pueblo, 1 City Hall Place, Pueblo, Colorado, 81003, or 0 (b) if to the Company, 7204 Big Valley Court, Colorado Springs, Colorado, or to such other address as either party shall specify in written notice given to the other party. 14. Time is of the essence hereof. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, provided Company may not assign this Agreement or any interest herein without the express written consent of the City, which consent may be arbitrarily withheld, conditioned or delayed. Any assignment or attempted assignment of this Agreement by Company without such consent shall be null and void. 15. The persons signing this Agreement, Warranty Deed, Promissory Note and Deed of Trust in the name of and on behalf of Company represent and warrant that they and Company have the requisite power and authority to enter into, execute, and deliver this Agreement, Warranty Deed, Promissory Note and Deed of Trust, and that this Agreement, Warranty Deed, Promissory Note and Deed of Trust are valid and legally binding obligations of Company enforceable against Company in accordance with their terms. 16. Company represents and warrants that no person, entity, or organization has been employed or retained or will receive or be paid, directly or indirectly, any commission, percentage, contingent fee or any other remuneration payment or receipt of which is contingent upon approval of this Agreement or City's advancement or loan of funds to Company hereunder. For breach or violation of this warranty, City shall have the right to terminate this Agreement, or recover the full amount of such commission, percentage, contingent fee or other remuneration, or to seek such other remedies legally available to City, which remedies shall be cumulative. 17. In no event shall City, its officers, agents or employees be liable to Company for damages, including without limitation, compensatory, punitive, indirect, special or consequential damages, resulting from or arising out of or related to this Agreement or the performance or breach thereof by City or the failure or delay of City in the performance of any covenant or provision under this Agreement on its part to be performed. In consideration of City entering into this Agreement, Company hereby waives and discharges City, its officers, agents and employees from any and all claims for any and all such damages. No breach, default, delay or failure of City under this Agreement shall be or be construed to be a waiver or release of Company's Repayment Obligation under paragraph 4 hereof with respect to the amount of City Funds actually advanced or paid by City to or for the benefit of Company pursuant to paragraph 2 hereof. Company shall have the right to file an action to specifically enforce City's obligations under this Agreement without showing or proof of an inadequate remedy at law. 18. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 19. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the other provisions of this -7- Agreement which shall remain in full force and effect. Executed at Pueblo, Colorado, the day and year first above written. [SEAL] ATTEST: s�J� By City C k [SEAL] ATTEST: By Title: Title: A MUNICIPAV CORPORATION of the City Council WORKS, INC. F.\FILES\ CITY \AIRPORT \UNI VERSL \AGREEMNT. WPD - O 1299559 09/21/1999 12:58P WD Chris C. Munoz 1 of 5 R 25.00 D 0.00 Pueblo Cty Clk & Rec. WARRANTY DEED THIS DEED, made this _15 day of __Se ptember , 1999 by and between Pueblo, a Municipal Corporation (herein "City ") and Universal Boiler Works, Inc., a Missouri corporation (herein "Company "), WITNESSETH: That City for and in consideration of the sum of $10.00 and other good and valuable consideration to City in hand paid by the Company, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell, convey and confirm unto the Company, its successors and assigns forever, all the real property situate, lying and being at Pueblo Memorial Airport, County of Pueblo, State of Colorado, more particularly described in as Lot 40, Pueblo Memorial Airport Industrial Park Subdivision, (herein "Property), with all its appurtenances, and warrant the title to the same, subject to easements, rights of way, conditions, restrictions and reservations of record and easements for existing utilities, sanitary sewer, water, irrigation and natural gas lines on, over or under the Property and to the following covenants, conditions, and restrictions which are and shall be construed to be covenants running with the land described herein and binding upon the Company, its successors and assigns and inuring to the benefit of the City, its successors and assigns. 1. City reserves unto itself and its successors and assigns, for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the Property, together with the right to cause in the airspace above the surface of the Property such noise as be inherent in the operation of any aircraft now known or hereafter used for navigation of or flight in S said airspace, and for use of the airspace above the surface of the Property for landing on, taking off operation on or over the Pueblo Memorial Airport. 2. Company expressly agrees for itself, its successors and assigns to restrict the height of structures, objects of natural growth and other obstructions on the Property, to a height of not more than 4,690 feet above the mean sea level. In the event this covenant is breached, City reserves the right to enter upon the Property and at the expense of the Company to remove the offending structure or object and to cut the offending growth. Company expressly agrees for itself, its successors and assigns, that it will prevent any use of the Property which would interfere with landing or taking off of aircraft at the Pueblo Memorial Airport, or otherwise constitute an airport hazard. 4. The Property and its use are further subject to the following Restrictive Covenants: (a) The Property may be used only for manufacturing purposes and incidental office uses. The Property shall not be used for smelting or plating operations, or for the storage or processing of putrescible materials, or for any purpose or business which constitutes a nuisance, or which exceeds the state air pollution control standards for the facility on the Property. Gasoline or diesel fuel used in connection with the business conducted on the Property but not for sale at retail or wholesale may be stored on the Property in an environmentally sound manner. (b) Outdoor storage shall not be permitted except for storage of equipment used in the facility. Parking areas for vehicles and roads on the Property shall be paved. (c) The Property shall not be subdivided and no building or structure over sixty (60) feet in height shall be installed or constructed on the Property. (d) No structure or building shall be constructed or installed nearer than thirty -five (35) feet of the right of way line of Excellence Avenue, and twenty -five (25) feet of the right of way line of any other abutting streets. There must be installed and maintained a minimum twenty -five (25) foot strip of living landscaped ground along and adjacent to Excellence Avenue, and fifteen (15) feet adjacent to other abutting streets. Minimum side yards set -backs shall be twenty -five (25) feet. (e) Company shall keep and maintain the Property and all buildings , landscaping and improvements located thereon in a good, clean, safe and orderly condition free of waste, rubbish, debris and trash, and enclose and screen from public view all outside storage and unsightly areas of the Property. f IIIIII VIII VIII IIIIIII III VIII IIIIIiI III VIII IIII III 1299559 09/21/1999 12:58P WD Chris C. Munoz 2 of 5 R 25.00 D 0.00 Pueblo Cty Clk & Rec. (f) Company shall comply with notifications and review requirements of the Federal Aviation Administration prior to the construction, modification or alteration of any building or structure on the Property. (g) Company shall, at its own expense, cause all utilities and roads used or to be used on the Property to be extended from adjacent streets, installed on the Property, and kept and maintained in good order and condition. (h) Company shall pay to City a combined service fee for services and facilities now furnished by City at the Pueblo Memorial Airport, namely: public street maintenance, fire protection, and street lighting based upon $295.00 per acre per annum payable monthly for each acre of land conveyed to Company hereunder. City may, from time to time, reduce or eliminate any or all of the services or facilities presently being furnished and may modify, increase, or decrease the annual combined service fee provided (1) such services and fee shall be non - discriminatory among other owners of land at Pueblo Memorial Airport receiving such services and facilities, and (ii) such fee shall be reasonable in relation to City's actual cost and expense of furnishing the services and facilities then being furnished. City's cost may include the cost of capital improvements amortized over the useful life of the improvements. If wastewater discharged from the Property is transported through City's wastewater collection system and treated at City's wastewater treatment facilities, Company and the wastewater so transported and treated shall be subject to the same restrictions, limitations, conditions, fees, and charges as other users of City's sanitary sewer system and facilities. Company shall only discharge domestic wastewater into the City's sanitary sewer system and facilities. (1) Company shall provide for storm water drainage which shall include the construction and installation of storm water detention facilities on the Property. The detention facility shall be capable of storing the developed on -site runoff from a 100 -year frequency storm. The maximum release rate from the detention facility at the ponding depth corresponding to the 10 -year volume shall be .30 cfs /acre and 1.00 cfs /acre for the 100 -year ponding depth. All calculations and details shall conform with the City of Pueblo Storin Drainage Criteria Manual. The point of discharge from the detention facility shall be at a location approved by the Director of Public Works. 0) Before commencing the construction, installation or alteration of any building, structure, parking facility, outdoor sign, or other permanent improvement, or landscaping on the Property, the Company shall submit to and have approved by the City in writing the site plans and plans and specifications therefor. City's approval will not be unreasonably withheld. In the event the City or its designated representatives shall fail to approve or disapprove such plans and specifications within twenty -five (25) working days after they have been submitted to the City, such approval will not be required and this covenant will be deemed to have been complied with. Company shall use its best efforts to assure that all buildings constructed on the Property will be architecturally and aesthetically compatible with buildings constructed at the Pueblo Memorial Airport industrial park since 1985. All buildings, improvements and activities on the Property shall be constructed and conducted in compliance with all applicable federal, state and local law, regulations, and codes. IIIIIIIIIII IIIII 1111111 III IIIII 1111111 III IIIII iIII III 1299559 09/21/1999 12:58P WD Chris C. Munoz 3 of 5 R 25.00 D 0.00 Pueblo Cty Clk & Rec. (k) City reserves the right to waive all or any part of these Restrictive Covenants. 5. This Warranty Deed and conveyance of the Property to Company are made upon the express condition that Company will construct and equip on the Property an approximately 30,000 square foot manufacturing facility (the "Facility ") within eighteen (18) months after the date of this Warranty Deed. If Company does not substantially construct and equip the Facility on the Property within eighteen (18) months after the date of this Warranty Deed, City will have the right of re -entry for nonperformance of this condition and will be entitled to a reconveyance of the Property and delivery of exclusive possession thereto. In that event, Company's reconveyance and delivery of exclusive possession to City of the Property will be conveyed by Special Warranty Deed and will be free and clear of all claims, liens and encumbrances which would be enforceable against the Property and which are attributable to the acts or omissions of Company or those claiming through Company. The eighteen (18) month year period specified above may be extended by instrument duly executed and acknowledged by Company and City and recorded in the records of the Pueblo County Clerk and Recorder. 6. At the request of City, Company shall meet and in good faith confer with City concerning the annexation of the Property to the City when the Pueblo Memorial Airport, or any part thereof, including without limitation, the Property becomes eligible for annexation. 7. Invalidation of any one of the foregoing covenants, conditions, restrictions or reservations by judgment or court order or otherwise shall not affect any of the other of said covenants, reservations, restrictions or conditions which shall remain in full force and effect. 8. City shall have the right to enforce the restrictions, covenants and conditions hereof by injunction or other lawful procedure and to recover damages, costs, expenses, including reasonable 11111111111111111111111111 IN 1299559 09/21/1999 12:58P WD Chris C. Munoz 4 of 5 R 25.00 D 0.00 Pueblo Cty Clk & Rec. 1 1299559 09/21/1999 12:58P WD Chris C. Munoz 5 of 5 R 25.00 D 0.00 Pueblo Cty Clk & Rec. ley fees, resulting from any violation thereof or arising out of their enforcement. A L] UNIVERSAL BOILER WORKS, INC. By Ute Presiden P O, A MUNICI CORPORATION B pw President of the City Council COUNTY OF k L P, S d STATE OF (gyp Lp g,4-a D ss. The foregoing instrument wa a cknowledged before me this W 'h day of . -P76M ��- 1999 by �(, J �. Pp-o A) as�J]? e dent and A LU. , pa'u as Secretary of Universal Boiler Works, Inc., a Colorado corporation. oP E me i . ess my hand and official seal. °.°.°. . ' :, MY Commission Expires �o ission expires: 10/03/2002 N OAPX ° Notary Public COUNTY OF PUEBLO STATE OF COLORADO ss. The foregoing instrument was acknowledged before me this 1st day of June 1999 by Corinne Koehler as President of the City Council and Gina 06tcher as City Clerk of Pueblo, Colorado, a Municipal Corporation. Witness my hand and official seal. .alt iJ. My, expires LCL'�ITY'iiR ORT\CHEMMRKIIWDEED.WPD „ir � -21 -99 c.. tary Public _5- ATTEST: �: r F) retary l V I ". -.' �.� City; rk P O, A MUNICI CORPORATION B pw President of the City Council COUNTY OF k L P, S d STATE OF (gyp Lp g,4-a D ss. The foregoing instrument wa a cknowledged before me this W 'h day of . -P76M ��- 1999 by �(, J �. Pp-o A) as�J]? e dent and A LU. , pa'u as Secretary of Universal Boiler Works, Inc., a Colorado corporation. oP E me i . ess my hand and official seal. °.°.°. . ' :, MY Commission Expires �o ission expires: 10/03/2002 N OAPX ° Notary Public COUNTY OF PUEBLO STATE OF COLORADO ss. The foregoing instrument was acknowledged before me this 1st day of June 1999 by Corinne Koehler as President of the City Council and Gina 06tcher as City Clerk of Pueblo, Colorado, a Municipal Corporation. Witness my hand and official seal. .alt iJ. My, expires LCL'�ITY'iiR ORT\CHEMMRKIIWDEED.WPD „ir � -21 -99 c.. tary Public _5- PROMISSORY NOTE U.S. $250,000.00 Pueblo, Colorado September 15, 1999 FOR VALUE RECEIVED, the undersigned (Borrower) promises to pay to City of Pueblo, a municipal corporation, 1 City Hall Place, Pueblo, Colorado, 81003, or order, (Note Holder) the principal sum of Two Hundred Fifty Thousand and No /100 ($250,000.00) U.S. Dollars, with interest on the unpaid principal balance from date hereof until paid, at the rate of four and one -half percent (4.5 %) per annum. Principal and interest shall be payable at the office of the Director of Finance, City Hall, 1 City Hall Place, Pueblo, Colorado, 81007, or such other place as the Note Holder may designate, in one hundred twenty (120) monthly payments of Two Thousand Five Hundred Ninety and 96/100 Dollars (U.S. $2,590.96), due on the 15th day of each month, beginning October 15, 1999. Such payments shall continue until the entire indebtedness evidenced by this Note is fully paid; provided, however, if not sooner paid, the entire principal amount outstanding and accrued interest thereon, shall be due and payable on October 15, 2009. Borrower shall pay to the Note Holder a late charge of five percent (5 %) of any payment not received by the Note Holder within fifteen (15) days after the payment is due. Payments received for application to this Note shall be applied first to the payment of late charges, if any, second to the payment of accrued interest at the increased rate specified below, if any, third, to accrued interest first specified above, and the balance applied in reduction of the principal amount hereof. If any payment required by this Note is not paid when due, the entire principal amount outstanding and accrued interest thereon shall at once become due and payable at the option of the Note Holder (Acceleration). To exercise this option, the Note Holder shall give Borrower notice of Acceleration specifying the amount of the nonpayment. The Borrower shall have thirty days after the notice of Acceleration has been given to reinstate the terms of this Note, as they were immediately before such notice, by paying the amount of nonpayment specified in the notice of Acceleration. The privilege or reinstatement shall not, however, be available to the Borrower more than once during any twelve -month period. Unless so reinstated the indebtedness shall bear interest at the increased rate of ten percent (10 %) per annum from the date notice of Acceleration is given. The Note Holder shall be entitled to collect all reasonable costs and expense of collection and/or suit, including, but not limited to reasonable attorneys' fees. Borrower may prepay the principal amount outstanding under this Note, in whole or in part, at any time without penalty. Any partial prepayment shall be applied against the principal amount outstanding and shall not postpone the due date of any subsequent payments or change the amount of such payments. Presentment, notice of dishonor, and protest are hereby waived by Borrower and all other makers, sureties, guarantors and endorsers hereof. This Note shall be the joint and several obligation of Borrower and all other makers, sureties, guarantors and endorsers, and their successors and assigns. Any notice to Borrower provided for in this Note shall be in writing and shall be given and be effective upon (1) delivery to Borrower or (2) mailing such notice by certified mail, addressed to Borrower at the Borrower's address stated below, or to such other address as Borrower may designate by notice to the Note Holder. Any notice to the Note Holder shall be in writing and shall be given and be effective upon (1) delivery to Note Holder or (2) by mailing such notice by certified mail, to the Note Holder at the address stated in the first paragraph of this Note, Attention: Director of Finance, or to such other address as Note Holder may designate by notice to Borrower. The indebtedness evidenced by this Note is secured by a Deed of Trust of even date, and until released said Deed of Trust contains additional rights of the Note Holder. Reference is made to said Deed of Trust for such additional terms. Said Deed of Trust grants rights to the following described property located in the County of Pueblo, State of Colorado: Lot 40, Pueblo Memorial Airport Industrial Park Subdivision. At the option of Note Holder, any default under any of the terms, covenants, agreements or provisions contained in the Deed of Trust or the Agreement dated May 24, 1999 between Borrower and Note Holder which are to be kept and performed by Borrower shall be deemed a default under this Promissory Note and such default may cause the Acceleration of the indebtedness evidenced by \\ ��p A E. [ S E UNIVERSAL BOILER WORKS, INC. tTT -ES- B •`� ecretary Vice - Pr ident �9� ••....••• to OP M Borrower's Address: 7204 Big Valley Court, Colorado Springs, Colorado 80919 State of LD�a Ccun;y cf F� ,q-so �SEJ'1�m��- ►3 � 1999 The foregolnOs instrument was acknowledged before me on this b y 'tc y C7,W5� � -2- 3 I IIIIII IIIII IIIIIIIIIIII 111 11111 1111111 111 11111 IN IN 1299560 09/21/1999 12:58P TD Chris C. Munoz 1 of 3 R 15.00 D 0.00 Pueblo Cl.y Clk & Rec. DEED OF TRUST THIS INDENTURE, Made A Orr cr Se 15 1999 between Universal Boiler Works, Inc. a corporation duly organized and existing under and by virtue of the laws of the state of Colorado whoseaddressis 7204 Big Valley Court, Colorado Springs, Colorado, 80919 hereinafter referred to as grantor, and the Public Trustee of the *County of Pueblo , State of Colorado, hereinafter referred to as Public Trustee, WITNESSETH, THAT, WHEREAS, grantor has executed a promissory note or notes, hereinafter referred to in the singulaod4ttd O f even date for the principalsumof Two Hundred Fifty Thousand and N01100 ($250,000.00) Dollars, payable to the order of Pueblo, a Municipal Corporation whoseaddressis 1 City Hall Place, Pueblo, Colorado, 81003 after the date hereof, with interest thereon from the date thereof at the rate of 4.5 per cent per annum, payable in accordance with the terms of the promissory note but in no event later than 10 years after the date hereof, and WHEREAS, grantor and Pueblo entered into an Agreement dated as o JLIAp ; , 1999 whereby Pueblo agreed to advance to Compa and company agreed to repay $300,000 if Company does not meet certa NOW THEREFORE, the grantor, in consideration of the premises and for the purpose aforesaid, does hereby grant, bargain, sell and convey unto the said Public Trustee in trust forever, the following described property, situate in the County of Pueblo , State of Colorado, to wit: Lot 40, Pueblo Memorial Airport Industrial Park Subdivision *employment commitments (the "Agreement "), and WHEREAS, the grantor is desirous of securing payment of the $250,000.00 principal and interest of said promissory note and performance of the Agreement and repayment of the $300,000.00 under the Agreement, and WHEREAS, whenver the term "promissory note" or "note" is hereafter used, it shall mean and include the promissory note and the Agreement. also known by street and number as: N/A assessor's schedule or parcel number: N /A *If in Denver, insert "City and ". No. 23. Rev. 8 -98. DEED OF TRUST (Corporation) With Due on Sale Clause Copyright 1988 \ �k Bradford Publishing, 1743 Wazee St., Denver, CO 80202 — (303) 292 -2500 — 8 -98 ,* I IIIIII IIIII IIIII IIIIIII III IIIII IIIIIII III IIIIIIIII IIII 1299560 09/21/1999 12 :58P TD Chris C. Munoz 2 of 3 R 15.00 D 0.00 Pueblo Cty Clk & Rec. TO HAVE AND TO HOLD the same, together with all and singular the privileges and appurtenances thereunto belonging: In trust nevertheless, that in case of default in the payment of said note, or any of them, or any part thereof, or in the payment of the interest thereon according to the tenor and effect of said note, or any of them, or in the payment of any prior encumbrances, principal or interest, if any, or in case default shall be made in or in case of violation or breach of any of the terms, conditions, covenants or agreements herein contained, the beneficiary hereunder or the legal holder of the indebtedness secured hereby may declare a violation of anv of the covenants herein contained and may elect to advertise said property for sale, and demand such sale by filing a notice of election and demand for sale with the Public Trustee. Upon receipt of such notice of election and demand for sale, the Public Trustee shall cause a copy of the same to be recorded in the recorder's office of the county in which said property is situated. The Public Trustee shall then give public notice of the time and place of sale by advertisement to be published for four weeks (once each week for five successive weeks) in some newspaper of general circulation at that time published in the county or counties in which said property is located. A copy of such notice shall be mailed within ten days after the date of the first publication thereof to the grantor at the address given herein, to such person or persons appearing to have acquired a subsequent record interest in said property at the address given in the recorded instrument, and to any other person or persons as may be provided by law. It shall and may then be lawful for the Public Trustee to sell said property for the highest and best price the same will bring in cash and to dispose of the same (en masse or in separate parcels, as the said Public Trustee may think best), together with all the right, title and interest of the grantor, its successors or assigns therein, at public auction at any place as may be specified by statute and designated in the notice of sale. The Public Trustee shall make and give to the purchaser or purchasers of such property at such sale a certificate or certificates in writing describing such property purchased, and the sum or sums paid therefor, and the time when the purchaser or purchasers (or other person entitled thereto) shall be entitled to a deed or deeds therefor, unless the same shall be redeemed as is provided by law. The Public Trustee shall, upon demand by the person or persons holding the said certificate or certificates of purchase, when said demand is made, or upon demand by the person entitled to a deed to and for the property purchased at the time such demand is made, the time for redemption having expired, make and execute to such person or persons a deed or deeds to the said property purchased. Said deed or deeds shall be in the ordinary form of a conveyance, and shall be signed, acknowledged and delivered by the said Public Trustee and shall confirm the foreclosure sale and sell and convey to such person or persons entitled to such deed, the said property purchased as aforesaid and all the right, title, interest, benefit and equity of redemption of the grantor, its successors and assigns therein. The Public Trustee shall, out of the proceeds or avails of such sale, after first paying and retaining all fees, charges and costs of making said sale, pay to the beneficiary hereunder or the legal holder of said note the principal and interest due on said note according to the tenor and effect thereof, and all moneys advanced by such beneficiary or legal holder of said note for insurance, taxes and assessments, with interest thereon at ten per cent per annum, rendering the overplus, if any, unto the grantor, its legal representatives, successors, or assigns. Said sale or sales and said deed or deeds so made shall be a perpetual bar, both in law and equity, against the grantor, its successors and assigns, and all other persons claiming the said property, or any part thereof, by, from, through or under the grantor, or any of them. The holder or holders of said note or notes may purchase said property or any part thereof; and it shall not be obligatory upon the purchaser or purchasers at any such sale to see to the application of the purchase money. If a release deed be required, it is agreed that the grantor, its successors or assigns, will pay the expense thereof. And the grantor, for its successors and assigns, covenants and agrees to and with the Public Trustee, that at the time of the ensealing of and delivery of these presents it is well seized of the said land and tenements in fee simple, and has good right, full power and lawful authority to grant, bargain, sell and convey the same in the manner and form as aforesaid; and that the same are free and clear of all liens and encumbrances whatever ,except easements, rights of Way, conditions, restric— tions and reservations of record. The grantor shall and will Warrant and Forever Defend the above bargained property in the quiet and peaceable possession of the Public Trustee, against all and every person or persons lawfully claiming or to claim the whole or any part thereof. Until payment in full of the indebtedness, the grantor shall timely pay all taxes and assessments levied on the property; any and all amounts due on account of principal and interest or other sums on any senior encumbrances, if any; and will keep all improvements on said lands in good repair insured against any casualty loss, including extended coverage, by a company or companies meeting the net worth requirements of the beneficiary hereof in an amount not less than the then total indebtedness, including senior encumbrances. Each policy shall contain a loss payable clause naming the beneficiary as mortgagee and shall further provide that the insurance may not be canceled upon less than ten days written notice to the beneficiary. At the option of the beneficiary, the original policy or policies of insurance shall be delivered to the beneficiary as further security for the indebtedness. Should the grantor fail to insure and deliver the policies or to pay taxes or assessments as the same fall due, or to keep the property in good repair, or to pay any amounts payable upon senior encumbrances, if any, the beneficiary may make such repairs or any such payments or procure any such insurance without being required to do so, and all monies so paid with interest thereon at the rate of 10 % per annum shall be added to and become a part of the indebtedness secured by this Deed of Trust and may be paid out of the proceeds of the sale of the property, if not paid by the grantor. In addition, and at its option, the beneficiary may declare the indebtedness secured hereby and this Deed of Trust to be in default for failure to procure insurance or make any payments or repairs required by this paragraph. If all or any part of the property or an interest therein is sold or transferred without beneficiary's prior written consent, excluding (a) the creation of a lien or encumbrance subordinate to this Deed of Trust, (XJtf>Kbf�i#i![iLsi}�] t ' mk X X ��7��?S&p2Q�D4d4� beneficiary may, at beneficiary's option, declare all the sums secured by this Deed of Trust to be immediately due and payable. Beneficiary shall have waived such option to accelerate if, prior to the sale or transfer, beneficiary and the person to whom the property is to be sold or transferred reach agreement in writing that the credit of such person is satisfactory to beneficiary and that the interest payable on the sums secured by this Deed of Trust shall be at such rate as beneficiary shall request. AND THAT IN CASE OF ANY DEFAULT, Whereby the right of foreclosure occurs hereunder, the Public Trustee or the holder of said note or certificate of purchase, shall at once become entitled to the possession, use and enjoyment of the property aforesaid, and to the rents, issues and profits thereof, from the accruing of such right and during the pendency of foreclosure proceedings and the period of redemption, if any there be: and such possession shall at once be delivered to the Public Trustee or the holder of said note or certificate of purchase on request, and on refusal, the delivery of such possession may be enforced by the Public Trustee or the holder of said note or certificate of purchase by any appropriate civil suit or proceeding, and the Public Trustee. or the holder of said note or certificate of purchase, or any thereof, shall be entitled to a Receiver for said property, and of the rents, issues and profits thereof, after such default, including the time covered by foreclosure proceedings and the period of redemption. if any there be, and shall be entitled thereto as a matter of right without regard to the solvency or insolvency of the grantor or of the then owner of said property and without regard to the value thereof, and such Receiver may be appointed by any court of competent jurisdiction upon ex parte application and without notice — notice being hereby expressly waived — and all rents, issues and profits, income and revenue therefrom shall be applied by such Receiver to the payment of the indebtedness hereby secured, according to the law and the orders and directions of the court. AND, That in case of default in any of said payments of principal or interest, according to the tenor and effect of said promissory note aforesaid, or any of them, or any part thereof, or of a breach or violation of any of the covenants or agreements herein, by the grantor, its successors or assigns, then and in that case the whole of said principal sum hereby secured, and the interest thereon to the time of the sale, may at once, at the option of the legal holder thereof, become due and payable, and the said property be sold in the manner and with the same effect as if said indebtedness had matured, and that if foreclosure be made by the Public Trustee, an attorney's fee of a reasonable amount for services in the supervision of said foreclosure proceedings shall be allowed by the Public Trustee as a part of the cost of foreclosure, and if foreclosure be made through the courts a reasonable attorney's fee shall be taxed by the court as a part of the cost of such foreclosure proceedings. It is further expressly understood and agreed that all the covenants and agreements herein contained shall extend to and be binding upon the successors and assigns of the respective parties hereto. The singular number shall include the plural, the plural the singular, and the use of any gender shall be applicable to all genders. IN WITNESS WHEREOF, the grantor has caused its corporate name to be hereunto subscribed by its President, and its cor rate seal to be hereunto affixed, attested by its Secretary on the day first written above. [S E A L] ATTEST: , ��1'►ti ' UNIVERSAL BOI cre ary By Pre e'nt State of Colorado County of (SL e4SD ss. The foregoing instrument was ackno me this 13A __J�i of s>GPTf�Q E� 19 9 9 , by l 31l 1v D Orzo u w � E :cG tit-:_ — President, and \.JAn i j ;:2-6 W as Secretary of Un1V2rSa Bpf ler W(C , Inc . acorporation. Witness my hand and seal. NOTARY : PUBLIC Notary Public My commission expir 'My Commis 10 /OF Name and Address of Person Creating Legal Description (§ 38 -35- 106.5, C.R.S.) 11111111111111111111111111111111111111111 Hill IIII III 1299560 09/21/1999 12:58P TD Chris C. Munoz 3 of 3 R 15.00 D 0.00 Pueblo Cty Clk & Rec.