Loading...
HomeMy WebLinkAbout10404RESOLUTION NO. 10404 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO AND ELDORADO STONE, LLC AND AN AGREEMENT AND WARRANTY DEED BETWEEN THE CITY OF PUEBLO AND PUEBLO DEVELOPMENT FOUNDATION RELATING TO A JOB CREATING CAPITAL IMPROVEMENT PROJECT, AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME, AND TRANSFERRING $1,500,000 FROM THE 1992 -2006 SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS FUND FOR SUCH PURPOSE WHEREAS, Pueblo Economic Development Corporation ( "PEDCO ") has presented to City Council a proposed job creating capital improvement project ( "Project') whereby Eldorado Stone, LLC will expand its business at Pueblo Memorial Airport Industrial Park and commit to employ twenty -five (25) additional full -time employees, and WHEREAS, the Project will require the construction of an approximately six (6) acre storage area by Pueblo Development Foundation on Lot 57, Pueblo Memorial Airport Industrial Park Subdivision at a cost of approximately $1,500,000, and WHEREAS, the Project and financial details thereof were negotiated and approved by PEDCO, and WHEREAS, PEDCO has recommended to the City Council that the City Council approve the Project and financial details thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO. that: SECTION 1 The City Council finds and determines that the expenditure of $1,500,000 for the job creating capital improvement project with Eldorado Stone, LLC described herein and in the attachment agreements meets and complies with the criteria and standards established by Ordinance No. 6381 and will create employment opportunities justifying the expenditure of public funds. The City Council further finds and determines that Lot 57, Pueblo Memorial Airport Industrial Park Subdivision is surplus to City's needs. SECTION 2 The Agreement dated May 23, 2005 between the City and Pueblo Development Foundation, a copy of which is attached hereto, the Warranty Deed attached to the Agreement, and the Agreement dated May 23, 2005 between the City of Pueblo and Eldorado Stone, LLC, a copy of which is attached hereto, 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 Agreements and Warranty Deed in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 3 Funds in an amount of $1,500,000 are hereby authorized to be transferred, expended and made available to Pueblo Development Foundation out of the 1992 -2006 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 Agreement. The funds hereby authorized to be transferred and expended shall be released and paid by the Director of Finance to or for the benefit of Pueblo Development Foundation after receipt by the Director of Finance of written requests for payment required by paragraph 2(e) of the Agreement between the City and Pueblo Development Foundation. SECTION 4 The officers of the City are directed and authorized to perform any and all acts consistent with the intent of this Resolution and attached Agreements to effectuate the transactions described therein. SECTION 5 This Resolution shall become effective upon final approval and passage. INTRODUCED May 23, 2005 BY Dr. Bill Sova Councilperson APPROVED: PRESIDENT CITY CPWCIL ATTESTED BY: CITY CLERK aD Background Paper for Proposed RESOLUTION 4 . -# / OV AGENDA ITEM # 10 DATE: May 23, 2005 DEPARTMENT: Law Department TITLE A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO AND ELDORADO STONE, LLC AND AN AGREEMENT AND WARRANTY DEED BETWEEN THE CITY OF PUEBLO AND PUEBLO DEVELOPMENT FOUNDATION RELATING TO A JOB CREATING CAPITAL IMPROVEMENT PROJECT, AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME, AND TRANSFERRING $1,500,000 FROM THE 1992 -2006 SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS FUND FOR SUCH PURPOSE ISSUE Should the City Council approve the job creating capital improvement project with respect to Eldorado Stone, LLC and related agreements and documents described in and attached to the Resolution? RECOMMENDATION Pueblo Economic Development Corporation recommends approval of the job creating capital improvement project. BACKGROUND Eldorado Stone, formerly Stonecraft Industries ( "Company ") presently conducts business at the Pueblo Memorial Airport Industrial Park and plans to expand its operations. Company desires that adjacent Lot 57 be converted into an approximately six (6) acre storage area including the installation of fiberous concrete, yard lights for bar code inventory, fencing and related improvements ( "Storage Area "). The estimated cost of the Storage Area is $1.5 million. City will advance to Company $250,000 for the Storage Area under an employment commitment agreement whereby Company commits to employ 25 full -time employees in addition to its existing employment commitment of 110 employees or a total of 135 employees. If Company defaults in its employment commitment, Company will repay to the City a pro -rata amount of the $250,000 based on the number of employees it fails to employ. Citywill advance to Pueblo Development Foundation ( "PDF ") $1,250,000 to be used for the Storage Area and convey title to Lot 57 to PDF. PDF will construct the Storage Area and lease it to Company. The lease is a triple net lease for a term to expire May 5, 2015. Rent is $12,070 per month. Company has the option to purchase the Storage Area on May 5, 2010 and at the end of the lease term for its then fair market value. All rent and other payments received by PDF are to be held in trust and paid to City less 5% for PDF's expenses in participating in the transaction and as Lessor. PDF's obligation will be secured by a deed of trust on the Storage Area. The job creating capital improvement project and financial details thereof as well as the lease terms and conditions were negotiated and approved by PEDCO. PEDCO recommends that the City Council approve this transaction and all related documents. FINANCIAL IMPACT See Background. -2- 90:33 1:30M 1 THIS AGREEMENT entered into as of /� iq % R3 ' 2005 between Pueblo, a municipal corporation (the "City ") and Eldorado Stone LLC, a Delaware limited liability company (the "Company "). WHEREAS, City and StoneCraft Industries, Inc., a California corporation entered into a certain Agreement dated January 10, 2000 for a job creating capital improvement project (the "2000 Agreement") whereby StoneCraft Industries, Inc. committed to employ sixty (60) full - time employees at the Facility located at the Pueblo Memorial Airport Industrial Park ( "Original Employment Commitment'), and WHEREAS, City and StoneCraft Industries, LLC, a Delaware limited liability company, the successor in interest to StoneCraft Industries, Inc., entered into a certain Agreement dated June 10, 2002 with respect to the Expansion of the Facility (the "2002 Agreement') whereby StoneCraft Industries, LLC committed to employ an additional fifty (50) Full -Time Employees at the Facility (the "Expansion Employment Commitment'), and WHEREAS, Company is the successor in interest to StoneCraft Industries, LLC, and WHEREAS, Company has expressed a willingness to expand its business at the Pueblo Memorial Airport Industrial Park, and in furtherance thereof has through the Pueblo Economic Development Corporation made application for funds with the City, and WHEREAS, the City has approved such application and will make funds 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: L In addition to the terms "Original Employment Commitment," "Expansion Employment Commitment," "2000 Agreement," and "2002 Agreement' defined above and other terms defined herein, the following terms shall have the following meaning, unless the context clearly indicates otherwise: "Employment Commitment Date" means May 1, 2005. "Facility" means the expanded building located on Lot 58, Pueblo Memorial Airport Industrial Park Subdivision, Pueblo County, Colorado. "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. "Lease Modification No. 2" means an enforceable modification agreement of even date hereof between Company and Pueblo Development Foundation modifying that certain Lease Agreement dated January 10, 2000 between StoneCraft Industries, Inc. and Pueblo Development Foundation as modified by the Lease Modification dated September 5, 2002 (collectively the "Lease "), which modification agreement will provide for the lease of Lot 57, Pueblo Memorial Airport Industrial Park, Pueblo County, Colorado ( "Lot 57 ") and the construction of the Storage Area thereon. "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 commencing January 1, April 1, July 1 and October 1 of each calendar year. "Storage Area" means the construction of an approximately six (6) acre storage area including the installation of fiberous concrete, yard lights for bar code inventory, and related improvements on Lot 57. 2. City will advance to or for the benefit of Company funds in the amount of $250,000.00 (the "City Funds "), subject to and contingent upon the following conditions and covenants: (a) All City Funds shall be spent solely for the Storage Area. (b) All contracts for construction of the Storage Area shall be awarded after competitive bidding which allows qualified local contractors to participate in the competitive bidding procedures. (c) The Storage Area shall be completed in an expeditious manner. (d) Company filing 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 issued by the Colorado Secretary of State, (ii) certified copy of the resolution of the governing board of Company approving this Agreement and Lease Modification No. 2, and authorizing its officers to execute and deliver this Agreement and Lease Modification No. 2 in the name of Company, and (iii) an executed copy of the Lease Modification No. 2. The date of such filings is herein referred to as "Closing." If Closing does not occur on or before July 31, 2005, or such later date as Company and City shall mutually agree, City shall have the right and option, upon prior written notice given to Company specifying the date of termination, to terminate this Agreement and City and Company shall be released and discharged from all obligations hereunder. 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 available to or for the benefit of Company hereunder is the creation of jobs. Therefore, Company represents, covenants, and agrees that it will employ not less than twenty -five (25) Full -Time Employees in addition to the Original Employment Commitment of sixty (60) Full -Time Employees and the Expansion Employment Commitment of fifty (50) Full -Time Employees at the Facility by the Employment Commitment Date and thereafter (collectively the "Storage Area Employment Commitment "). 4. Notwithstanding anything contained herein to the contrary, if Company shall for any reason default in its Storage Area 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 "Storage Area 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 "Storage Area Repayment Period ") Company shall pay to City an amount each Quarter equal to the Quarterly Employees less than one hundred thirty -five (135) employed at the Facility by Company multiplied by $357.14 (the "Company's Storage Area Quarterly Payments "). For example, if for the Quarter ending June 2006 the Quarterly Employees is 110, the amount payable by Company to City on or before July 15, 2006 would be (135 - 110) x $357.14 = $8,928.50. (b) Company's Storage Area 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 Storage Area 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 Storage Area Quarterly Payments shall bear interest at the rate of eight (8) percent per annum until paid. In no event shall Company be required to pay more for the aggregate amount of Company's Storage Area Quarterly Payments than the amount of City Funds set forth under paragraph 2 hereof plus interest as herein provided. (c) Within fifteen (15) days after the end of each Quarter after the Employment Commitment Date and for one calendar month after the Storage Area 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 Storage Area Quarterly Payment, if any, 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 payroll records relating to Company's employment at the Facility. City will, however, respect the right of employees and Company as to confidentiality of personnel records. (d) If Company defaults in its Storage Area Repayment Obligation, Storage Area Employment Commitment, or in the performance of any of its covenants in the Lease 3 Modification No. 2 and Lease with Pueblo Development Foundation, and such default is not cured within sixty (60) days after written notice specifying the default is given by City to Company, then in such event, City may declare the entire balance of Company's Storage Area Repayment Obligation due and owing together with interest thereon at the rate of eight (8) percent per annum, and for such purpose, the entire balance of Company's Storage Area Repayment Obligation shall be an amount equal to 25 times $357.14 multiplied by the remaining Quarters of the Storage Area Repayment Period plus the amount of Company's unpaid Storage Area Quarterly Payments, if any, but in no event more than the amount of City Funds set forth under paragraph 2 hereof and interest as herein provided. Company's Storage Area 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 or for the benefit of 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 Storage Area Repayment Obligation contained in paragraph 4. 6. (a) Prior to instituting any proceeding to enforce Company's Storage Area Repayment Obligation under paragraph 4, City shall notify Company in writing of its intention to institute such proceedings. Company may request relief from its Storage Area Repayment Obligation by delivering to City within twenty (20) days after date of City's notice, Company's written request for relief specifying the grounds upon which such relief is sought together with documents supporting said grounds. Within ninety (90) days after receipt of Company's request, City will schedule a meeting with the City Council at which Company may appear. City will notify Company of the time and place of the meeting. Failure of Company to timely deliver its complete written request for relief or to appear at the scheduled meeting with the City Council shall entitle City to immediately institute proceedings to enforce Company's Storage Area Repayment Obligation. (b) City Council may or may not, in its sole and absolute discretion, relieve Company, in whole or in part, from Company's Storage Area Repayment Obligation. Any action taken by the City Council relating to a request for relief shall be final and binding on Company, and not subject to judicial review. Any such action by City Council is, and shall constitute, a legislative measure. Nothing contained in this paragraph 6 shall grant or be construed to grant to Company any right or claim to relief from its Storage Area Repayment Obligation or hearing with respect thereto. (c) No delay by the City in scheduling a meeting, or failure by City to exercise its right to enforce this Agreement, including Company's Storage Area Repayment Obligation, and no partial or single exercise of that right, shall constitute a waiver of that right. 7. The provision set forth in Paragraph 2(d) of the 2002 Agreement which provides that if Closing does not occur on or before August 31, 2002, the 2002 Agreement shall terminate, is deleted from the 2002 Agreement. City and Company ratify, approve and confirm the 2002 Agreement which shall remain in full force and effect as so modified. Company acknowledges 4 that it is bound by the 2000 Agreement and 2002 Agreement and agrees to observe, perform and keep all the terms and provisions, covenants and conditions required to be kept and performed by Company thereunder including, without limitation, the performance of the Original Employment Commitment and Expansion Employment Commitment. 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. Venue for any such litigation shall be in Pueblo County, Colorado. 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 storage area 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 or liability 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 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, with copy to Thomas E. Jagger, City Attorney, 127 Thatcher Building, Pueblo, Colorado, 81003, or (b) if to the Company, General Counsel, Eldorado Stone LLC, 10653 South River Front Parkway, Suite 300, South Jordan, Utah, 84095, 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 5 the benefit of the parties and their respective successors and assigns, provided Company shall not voluntarily or by operation of law assign this Agreement or any interest herein without the express written consent of the City, which consent shall not be unreasonably withheld. City may withhold its consent if the proposed assignee's financial standing and responsibility at the time of the proposed assignment is insufficient in the City's sole discretion to give assurance of performance and compliance with all the terms and conditions of this Agreement including without limitation the Storage Area Employment Commitment. Upon such an assignment and consent, Company shall be released from all obligations arising or occurring under this Agreement after the effective date of such assignment and consent, provided that such assignee shall execute, acknowledge and deliver to City an assumption agreement in form and substance satisfactory to City, whereby assignee agrees to observe, perform and keep all the terms, provisions, covenants and conditions required to be observed, performed and kept by Company under this Agreement including without limitation, the Storage Area Employment Commitment. Any assignment or attempted assignment of this Agreement or any interest herein by Company without City's express written consent shall be null and void. 15. The persons signing this Agreement 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, and that this Agreement is a valid and legally binding obligation of Company enforceable against Company in accordance with its 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 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 Storage Area 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 X VIEADWATERS CONSTRUCTION MAIERIALS\ELDORADO\Eldorado Sw= LLC\Pueblo Cdy\Execution D= \AW"a t (fwal).doc 6 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 Agreement which shall remain in full force and effect. 20. No person or entity other than City and Company shall have any rights or remedies under this Agreement. 21. No provision of this Agreement shall be interpreted or construed to modify or amend any provision of the 2000 Agreement or the 2002 Agreement and all obligations of Company under this Agreement shall be in addition to Company's obligations under the 2000 Agreement and the 2002 Agreement. Executed at Pueblo, Colorado, the day and year first above written. [SEAL] Attest: City I Attest: Name: Title: Pueblo, a Municipal Corporation By �YY Pfesilent o t ty Council Eldorado S on LLC By Name: Title: C �re XAMADWATERS CONSTRUCTION MATERIALS\ELDORADO\Eldorado Stone LLC\Pueblo City \Execution Dou\Agrennent (final).doc 7 LEASE MODIFICATION NO.2 This Lease Modification No. 2 entered into as of &oo-., ;Z3 , 2005 by and between Pueblo Development Foundation, a Colorado nonprofit corporation, ( "Lessor ") and Eldorado Stone LLC, a Delaware limited liability corporation ( "Lessee "). WHEREAS, Lessor and Stonecraft Industries, Inc. entered into a Lease dated January 10, 2000 ( "Original Lease ") with respect to the real property legally described as Lot 58, Pueblo Memorial Airport Industrial Park Subdivision, consisting of approximately 5.57 acres of land ( "Land ") together with an approximately 26,650 square foot building ( "Facility") located thereon (collectively the Land and Facility are referred to as the "Leased Premises "), and WHEREAS, Stonecraft Industries, Inc. assigned all of its right, title and interest in and to the Original Lease to Stonecraft Industries, LLC, and WHEREAS, Lessor and Stonecraft Industries, LLC entered into a Lease Modification dated September 5, 2002 with respect to the expansion of the Facility by approximately 22,500 square feet ( "Lease Modification "), and WHEREAS, Eldorado Stone, LLC is the successor in interest to Stonecraft Industries, LLC and all its right, title and obligations in, under and to the Original Lease and Lease Modification, and WHEREAS, Eldorado Stone, LLC is herein referred to as Lessee, and WHEREAS, Lessee desires to add to and include as part of the Leased Premises under the Original Lease Lot 57, Pueblo Memorial Airport Industrial Park Subdivision consisting of approximately 6.38 acres ( "Additional Leased Premises "), and WHEREAS, Lessor and Lessee are willing to improve the Additional Leased Premises by constructing thereon a storage area consisting generally of approximately six (6) acres of fibrous concrete, yard lights for bar code inventory and related improvements ( "Storage Area ") upon the terms and conditions herein set forth. NOW THEREFORE, in consideration of the foregoing and mutual covenants entered Lessor and Lessee agree as follows: Section 1. Definitions The capitalized terms used herein shall have the meaning ascribed thereto in the Original Lease and this Lease Modification No. 2 unless the context clearly requires otherwise Section 2. Original Lease and Lease Modification Lessee acknowledges that it is bound by the Original Lease and Lease Modification and agrees to observe, perform and keep all the terms, provisions, covenants and conditions required to be kept and performed by the Lessee thereunder including, without limitation, the payment of the monthly rent set forth in the Original Lease and Expansion Rent set forth in the Lease Modification. Section 3. Storage Area 3.01 Lessor shall cause the Storage Area to be completed in accordance with plans, specifications and construction contract with the general contractor approved by Lessor and Lessee ( "Construction Documents "). The Construction Documents approved in writing by Lessor and Lessee shall be deemed incorporated herein as if set out herein in full. 3.02 Lessor shall pay the actual cost of constructing the Storage Area up to but not to exceed $1,500,000 (the "Maximum Costs "). The Maximum Costs represents the $1,500,000 to be advanced by the City of Pueblo ( "City") to or for the benefit of Lessor and Lessee to be used for the construction of the Storage Area pursuant to separate agreements between Lessor, Lessee and City. 3.03 All costs and expense of the Storage Area in excess of the Maximum Costs shall be paid by Lessee. 3.04 Lessor and Lessee shall cooperate in good faith with each other to cause the Storage Area to be substantially completed on or before June 1, 2005. The failure for any reason to substantially complete the Storage Area by June 1, 2005 shall not affect the validity of this Lease Modification No. 2 nor the obligations of Lessor and Lessee hereunder, and shall not constitute a breach or default by Lessor hereunder. 3.05 All changes in the Construction Documents shall be approved by Lessor and Lessee. The failure of Lessor or Lessee to approve or reject any proposed Contract Document, or any change or modification thereto, or any proposed change in the work within the general scope of construction contemplated by the Construction Documents, within ten (10) days after receipt thereof shall constitute approval thereof, provided, however, that all changes which increase the Maximum Costs must be approved in writing by both Lessor and Lessee, and Lessee shall pay to Lessor the cost of such changes in cash or certified funds within ten (10) days after the approval of such changes by Lessor and Lessee. 3.06 Whenever in this Section 3 or in any other Section of this Lease Modification No. 2, the approval or consent of Lessor or Lessee is required, such approval or consent shall not be unreasonably withheld or delayed. Section 4. Term 4.01 The terms of the Original Lease and Lease Modification end May 5, 2010 unless sooner terminated as therein provided ( "Termination Date'). The Term of this Lease Modification No. 2 shall commence on the date the Storage Area has been substantially completed and end on Termination Date. Lessor shall notify Lessee in writing the date the Storage Area has been substantially completed. If Lessee does not agree that the Storage Area has been substantially completed on the date specified in the notice from Lessor, Lessee shall promptly notify Lessor of its objection to those matters which are not substantially completed. Lessor shall consider, in good faith, Lessee's objections and shall either (i) extend the date of substantial completion, or (ii) respond with an explanation of why substantial completion has occurred and the date of substantial completion shall be the same as previously stated in Lessor's original notice. Lessor and Lessee agree that certain obligations under this Lease Modification No. 2 shall commence prior to substantial completion of the Storage Area including, but not limited to Section 3. Storage Area hereof, and Lessor and Lessee agree to perform and are bound be any such Section or provision prior to date of substantial completion. 4.02 Notwithstanding the provisions of Section 4.01, the terms of the Original Lease, Lease Modification and Lease Modification No. 2 are extended upon the same provisions and conditions for a period of five (5) years from Termination Date (May 5, 2010) to May 5, 2015 ( "Extended Term "). Section 5. Rent 5.01 In addition to the monthly rent required to be paid by Lessee pursuant to Article 4 of the Original Lease and Expansion Rent required to be paid by Section 4 of the Lease Modification, Lessee shall pay to Lessor monthly rent for the Additional Leased Premises and Storage Area ( "Storage Area Rent ") in the amount of $12,070.00 per month. 5.02 Storage Area Rent is payable monthly in advance, without notice or demand, with the first payment thereof due on substantial completion of the Storage Area, and subsequent payments due on the same day of each month thereafter at P. O. Box 1663, Pueblo, Colorado, 81002, or such other address as Lessor may from time to time designate to Lessor in writing. Lessee's obligation to pay Storage Area Rent is absolute and unconditional and Storage Area Rent shall not be offset, abated, reduced or withheld for any cause of reason. Any default by Lessee in the payment of Storage Area Rent or in the performance of any of its covenants in the Agreements with the City of Pueblo ( "City") dated January 10, 2000, June 10, 2002 and _9141 a , 2005 shall constitute a default under Article 22 of the Original Lease. Section 6. Incorporation 6.01 The Additional Leased Premises and Storage Area shall be incorporated in and be deemed to be included in and as part of the Leased Premises, Land and Facility as those terms are defined and intended in the Original Lease and shall be and become subject to all the terms, covenants and provisions of the Original Lease the same as if the Additional Leased Premises and Storage Area were a part of the Leased Premises and Facility on the effective date of the Rl Original Lease. 6.02 This Lease Modification No. 2 shall be incorporated in and be deemed to be included in and as part of the Lease as that term is defined and intended in the Original Lease. 6.03 The Original Lease as amended by the Lease Modification and this Lease Modification No. 2 shall continue in full force and effect and shall inure to the benefit of and be binding on Lessor and Lessee and their respective successors and assigns, subject to the limitations and restrictions on assignment and subleasing sets forth in Article 10 of the Original Lease. 6.04 Lessee acknowledges that Lessor will obtain funds for Lessor's cost of the Storage Area from the City pursuant to an Agreement between Lessor and City, the performance of which will be secured by a deed of trust on the Additional Leased Premises and Storage Area. Therefore, Lessee will execute any appropriate certificate, subordination agreement or instrument that Lessor may request in order to subordinate the Original Lease, this Lease Modification No. 2, the Additional Leased Premises and the Storage Area to Lessor's deed of trust and execute an estoppel certificate all as provided in Articles 25 and 26 of the 2000 Lease. Section 7. Option to Purchase and Right of First Refusal 7.01 The option to purchase the Leased Premises at the end of the fifth anniversary of the commencement Date (May 5, 2005) granted by Article 17.01(a) and 17.02(a) of the Original Lease is hereby canceled and terminated. As a result of the termination of the option to purchase at the end of the fifth anniversary of the Commencement Date, Lessee has the option to purchase the Leased Premises on the last day of the ten -year term of the Original Lease (May 5, 2010) or on the last day of the five (5) year Extended Term (May 5, 2015), for a purchase price equal to the then fair market value of the Leased Premises as provided in Article 17 of the Original Lease as modified in Section 7.03 hereof. For purposes of clarification, the Leased Premises includes Lots 57 and 58, Pueblo Memorial Airport Industrial Park Subdivision and improvements located thereon including the Facility, the Expansion and the Storage Area. 7.02 The right of first refusal to purchase Lot 57 granted by Article 19 of the Original Lease is cancelled and terminated. 7.03 Article 17. Option To Purchase Leased Premises of the Original Lease is modified and amended to read as follows: Article 17. Option to Purchase Leased Premises. 17.01 If Lessee is not in default hereunder or under the City Agreements, and has maintained its Employment Commitment by employing one hundred thirty-five (135) full -time employees at the Leased Premises, Lessee shall have the option to purchase the Leased Premises upon the terms and conditions contained in Article 18 for a purchase price as follows:: (a) if the option is exercised on the last day of the ten (10) year Term of this Lease or on the last day of the five (5) year Extended Term, the purchase price shall be amount equal to the then fair market value of the Leased Premises determined by a competent, qualified appraiser selected by Lessee and City. 17.02 The option to purchase hereby granted shall be exercised by Lessee by delivering to Lessor written notice of the exercise of the option as follows: (a) if the option is exercised on the last day of the ten (10) year Term of this Lease, one hundred twenty (120) days prior to the last day of the ten (10) year Term of this Lease. (b) if the option is exercised on the last day of the five (5) year Extended Term of this Lease, one hundred twenty (120) days prior to the last day of the five (5) year Extended Term. 17.03 If Lessee fails for any reason to give timely notice of its exercise of the option to purchase, the option rights granted hereby shall automatically terminate Section 8. Miscellaneous Provisions 8.01 This Lease Modification No. 2 shall be governed by the laws of the State of Colorado without regard to conflict of law principles, and shall be construed in accordance therewith. 8.02 No provision of this Lease Modification No. 2 may be waived or modified except by an agreement in writing signed by the waiving party. A waiver of any term or provision shall not be construed as a waiver of any other term or provision. 8.03 This Lease Modification No. 2 sets forth the entire and complete understanding and agreement of the parties hereto with respect to the Additional Leased Premises and Storage Area. Lessee acknowledges and agrees that it has not relied upon any statements, representations, agreements or warranties except such as are expressed herein. 8.04 The singular shall include the plural; the plural shall include the singular; and the masculine and neuter shall include the feminine, wherever the context so requires. 8.05 The headings of sections are included solely for convenience of reference. If any conflict between any heading and the text of this Lease Modification No. 2 exists, the text shall control. 8.06 If any provision of this Lease Modification No. 2 is declared by any court of competent jurisdiction to be invalid for any reason, such invalidity shall not effect the remaining provisions. On the contrary, such remaining provisions shall be fully severable, and this Lease Modification No. 2 shall be construed and enforced as if such invalid provision had never been inserted in this Lease Modification No. 2. 8.07 Lessor and Lessee agree that the venue for all actions or causes of action relating to this Lease Modification No. 2 or the Additional Leased Premises or Storage Area shall be in Pueblo County, Colorado. All such actions shall be filed in the District Court, County of Pueblo, State of Colorado and Lessor and Lessee submit to the jurisdiction of that Court. To the extent allowed by law, each party waives its right to a jury trial. In the event of any such action, the Court shall award the prevailing party its costs and expenses, including reasonable attorney's fee. 8.08 The persons signing this Lease Modification No. 2 on behalf of Lessee represent and warrant that such parties and Lessee have the requisite power and authority to enter into, execute and deliver this Lease Modification No. 2 and that this Lease Modification No. 2 is a valid and legally binding obligation of Lessee enforceable against Lessee in accordance with its terms. IN WITNESS WHEREOF, Lessor and Lessee, by their duly authorized representatives, have executed this Lease Modification No. 2 on the day and year first above written. PUEBLO DEVELOPMENT FOUNDATION r A By' i Title: [SEAL] ELDORADO ST LLC By - Title �t G R t y- Attest: Name: /ZDdF Title: rl.t21�w�. EAL] AGREEMENT THIS AGREEMENT entered into as of May 23, 2005, between the City of Pueblo, a municipal corporation ( "City ") and Pueblo Development Foundation, a Colorado nonprofit corporation ( "Foundation "), WITNESSETH: WHEREAS, the City owns Lot 57, Pueblo Memorial Airport Industrial Park Subdivision, Pueblo County, Colorado, consisting of approximately 6.38 acres of land ( "Property"). WHEREAS, Eldorado Stone, LLC ( "Company ") intends to expand its business operations as part of a job creating capital improvement project whereby Company commits it will employ 25 full -time employees at the Property, and WHEREAS, City will advance to Foundation funds for constructing a storage area on the Property and Foundation is willing to undertake such construction and lease the Property to Company under Lease Modification No. 2 dated as of May 23, 2005, between Foundation and Company ( "Lease Modification No. 2 "), and WHEREAS, City is willing to advance funds for constructing the storage area and to convey title to the Property to Foundation by Warranty Deed, a copy of which is attached hereto as Exhibit A ( "Warranty Deed "), upon the terms and conditions contained herein. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, City and Foundation agree as follows: 1. City will execute and deliver to Foundation the Warranty Deed subject to the Federal Aviation Administration issuing a deed of release for the Property. 2. Foundation will cause the storage area to be constructed in accordance with the covenants and provisions of the Lease Modification No. 2. City will advance to Foundation and Company funds in an amount not to exceed $1,500,000.00 (the "City Funds ") for such purpose, subject to and contingent upon the following conditions and covenants: (a) Foundation and Company entering into and delivering to City the Lease Modification No. 2 in form acceptable to the City Attorney. (b) Company executing an Agreement with the City approved by City Council by Resolution. (c) All contracts for constructing the Storage Area shall be awarded after competitive bidding which allows qualified local contractors to participate in the competitive bidding procedures. (d) All City Funds shall be spent solely for constructing the storage area. (e) Foundation shall file with City's Director of Finance written request for payment certified to be true and correct by an officer of Foundation or its representative that the amounts included in the request for payment have not been included in any prior request for payment and are for the actual cost of constructing the storage area, identifying the construction work and/or materials for which payment is sought, including certificates of the architect or contractor that the construction work for which payment is sought has been completed. All City Funds disbursed directly to Foundation shall be deposited in a separate account and held in trust by Foundation for the sole and only purpose of paying for constructing the storage area. 3. All rent and other payments received by Foundation under the Lease and Lease Modification No. 2 shall be held in trust by Foundation for the benefit of the City and, immediately after receipt thereof by Foundation, Foundation shall deliver and pay the rent and other payments to City less five (5) percent thereof to be retained by Foundation as reimbursement to Foundation for its expenses incurred in participating in this transaction and as Lessor under the Lease Modification No. 2. 4. Foundation shall not sell, encumber, or otherwise transfer the Property except as provided and set forth in the Lease. 5. Foundation shall perform all covenants and conditions on the part of the Lessor to be performed under the Lease Modification No. 2, and shall enforce all covenants and conditions on the part of the Lessee to be performed under the Lease Modification No. 2. Foundation shall timely give written notice to City of any of Lessee's defaults under the Lease Modification No. 2. Foundation's obligation under this Agreement shall be secured by a first deed of trust on the Property and Foundation shall execute and deliver to City its deed of trust in form and content approved by the City Attorney. 6. If Foundation defaults in the performance of any covenant or provision of this Agreement or Lease Modification No. 2, Foundation shall within ten (10) days after written demand is given to Foundation by City no later than fifteen (15) years after date hereof, convey title to the Property to City by special warranty deed free of liens and encumbrances, except liens and encumbrances existing at the time Foundation acquired title to the Property, the Lease Modification No. 2, and Foundation's deed of trust securing the performance of this Agreement, and assign the Lease Modification No. 2 to the City. The provisions of this paragraph may be specifically enforced. 7. 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 Agreement which shall remain in full force and effect. 8. The provisions of this Agreement are and will be for the benefit of City and Foundation only and not for the benefit of any third party, and accordingly, no third party shall have any right or remedy hereunder or the right to enforce any provision of this Agreement. 9. This Agreement shall be binding up and inure to the benefit of the City and Foundation and their respective successors and assigns, provided Foundation may not assign this Agreement or any of its rights hereunder without the prior written consent of City. Executed at Pueblo, Colorado, the day and year first above written. PUEBLO, A. MUNICIPAL CORPORATION _ j��r�ii Presi dent of eo uncil City, PUEBLO DEVELOPMENT FOUNDATION B _ , vP resident Attest: ecretary Approved as to form: City Attorney O:\ C17YWRPORAStoneCrafl\Eldomdo\Agmt (City@PDF - 2005).wpd WARRANTY DEED THIS DEED, made this day of 2005 by and between Pueblo, a Municipal Corporation (herein "City ") and Pueblo Development Foundation, a Colorado nonprofit 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 as Lot 57, Pueblo Memorial Airport Industrial Park Subdivision (herein "Property), with all its appurtenances, and warrant the title to the same, subject to covenants, easements, rights of way, 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 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 said airspace, and for use of the airspace above the surface of the Property for landing on, taking off from, or 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 4,670 feet above the mean sea level. In the event this covenant is breached, City reserves the right to enter upon the Property at the expense of the Company to remove the offending structure or object and to cut the offending growth. 3. 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 industrial and manufacturing facilities and storage areas 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. 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. EXHIBIT "A" (b) Outdoor storage shall not be permitted except for storage of inventory. Storage areas and 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 twenty - five (25) feet of the right of way line of any abutting streets. There must be installed and maintained a minimum twenty-five (25) foot strip of living landscaping adjacent to abutting streets. Except between Lots 57 and 58, minimum side and rear yard 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) 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 established by Section 3 -1 -14 of the Pueblo Municipal Code payable monthly. 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 (i) such services and fee shall be non - discriminatory among other tenants and 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 waste water 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. (i) 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. -2- 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 Storm 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. (k) City reserves the right to waive all or any part of these Restrictive Covenants. 5. 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. 6. 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. 7. 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 attorney fees, resulting from any violation thereof or arising out of their enforcement. [SEAL] ATTEST: Secretary [SEAL] ATTEST: City Clerk -3- PUEBLO DEVELOPMENT FOUNDATION President PUEBLO, A MUNICIPAL CORPORATION President of the City Council COUNTY OF PUEBLO ) ) ss. STATE OF COLORADO ) The foregoing instrument was acknowledged before me this day of , 2005 by Joseph A. Fortino as President and Robert Root as Secretary of Pueblo Development Foundation, a Colorado nonprofit corporation. Witness my hand and official seal. My commission expires: [SEAL] Notary Public COUNTY OF PUEBLO ) ) ss. STATE OF COLORADO ) The foregoing instrument was acknowledged before me this day of , 2005 by Robert D. Schilling, Jr. as President of the City Council, and Gina Dutcher as City Clerk of Pueblo, Colorado, a Municipal Corporation. Witness my hand and official seal. My commission expires: [SEAL] Notary Public -4- Resolution #10404 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 6 62 I of 4 Q Chris C. Munoz Pueb1oCtyC1k &Reo WD R 21.00 D 0.00 WARRANTY DEED THIS DEED, made this of -3 day of Al A Lj , 2005 by and between Pueblo, a Municipal Corporation (herein "City") and Pueblo Development Foundation, a Colorado nonprofit 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 as Lot 57, Pueblo Memorial Airport Industrial Park Subdivision (herein "Property), with all its appurtenances, and warrant the title to the same, subject to covenants, easements, rights of way, 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 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 said airspace, and for use of the airspace above the surface of the Property for landing on, taking off from, or 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 4,670 feet above the mean sea level. In the event this covenant is breached, City reserves the right to enter upon the Property at the expense of the Company to remove the offending structure or object and to cut the offending growth. 3. 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 industrial and manufacturing facilities and storage areas 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. 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. IIIIII VIII IIIIII VIII III IIIIII IIIIIII III VIII IIII IIII 662403403A Chris C. Munoz Pueb1oCtYC1k &Rec WD R 21.00 D 0.00 (b) Outdoor storage shall not be permitted except for storage of inventory. Storage areas and 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 twenty- five (25) feet of the right of way line of any abutting streets. There must be installed and maintained a minimum twenty-five (25) foot strip of living landscaping adjacent to abutting streets. Except between Lots 57 and 58, minimum side and rear yard 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) 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 established by Section 3 -1 -14 of the Pueblo Municipal Code payable monthly. 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 (i) such services and fee shall be non - discriminatory among other tenants and 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 waste water 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. (i) 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. -2- IIIIII VIII IIIIII VIII III IIIIII IIIIIII III VIII IIII IIII 662 of 4 Q Chris C. Munoz Pueb1oCtyC1k &Reo WD R 21.00 0 0.00 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 Storm 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 ofany 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. (k) City reserves the right to waive all or any part of these Restrictive Covenants. 5. 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. 6. 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. 7. 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 attorney fees, resulting from any violation thereof or arising out of their enforcement. . [ #.S E A L,� r c�TT�STt ATT•E r � ,�(f-4 r) RATV0 PUEBLO DEVELOPMENT FOUNDATION B 0' eside ni PUEBLO, A MUNICIPAL CORPORATION By ✓ esident of th ity Coun -3- I IIIIII11111111111 IIIIIIII P 624034 Chris C. Munoz PbloCtyClk &Re 06/10/2005 11.03A COUNTY OF PUEBLO ) - - - - - - ° WD R 21.00 0 0.00 ) ss. - - - - STATE OF COLORADO ) The foregoing instrument was acknowledged before me this day of , 2005 by Joseph A. Fortino as President and Robert Root as Secretary of Pueblo evet Foundation, a Colorado nonprofit corporation. 0 4 )du my hand and official seal. commission expires: A L ] a COUNTY OF PUEBLO ) ) ss. STATE OF COLORADO ) 'Ij� Notary Public The foregoing instrument was acknowledged before me this � day of n , 2005 by Robert D. Schilling, Jr. as President of the City Council, and Gina Dutcher as City C erk of Pueblo, Colorado, a Municipal Corporation. Witness my hand and official seal. My commission expires: 9 - 200 l Notary Public SS Resolution #10404 IIIIII VIII IIIIII VIII III IIIIII 1111111 III VIII IIII IIII 662 of I q Chris C. Munoz PuebloCtyClk &Rae TD R 6.00 0 0.00 - - -- -- DEED OF TRUST THIS DEED OF TRUST, Dated May 23, 2 0 0 5 , between Pueblo Development Foundation, a Colorado Nonprofit Corporation the grantor herein, whose address is Post Office Box 1663, Pueblo, Colorado 81002 of the *County of Pueblo and State of Colorado, and the PUBLIC TRUSTEE of the County or City and County in which the property described below is situated, in the State of Colorado, Witness: WHEREAS, Grantor and the City of Pueblo, ' 17re�cmaa�cioxacmffiacpromissapcaflx�ai HInatBStlterteimdecacsdxxdcoaicahexaga�acdele�x , 2xjbxwaibWodpxdxocxaf 1 City Hall Place, Pueblo, CO entered into an doVxm3pzg2d*atoclio=detak Agreement dated May 23, 2005 whereby Grantor kaondecw�ieraeia{cawdd�osxix in consideration of the conveyance of the real property described herein* cd>:ctboc�fc wXk* tiqln. }sec�eot �aaows caomkiolc at � does hereby grant and convey unto said Public Trustee the following described property, situate in the County Of Pueblo , State of Colorado, to wit: Lot 57, Pueblo Memorial Airport Industrial Park Subdivision, Pueblo County, Colorado *agreed to pay to the City of Pueblo (the "Beneficiary ") certain sums and perform certain covenants described therein (the "Agree- ment"), and WHEREAS, to secure the payments and performance of the covenant; under the Agreement, Grantor (whenever the term "promissory note" is used in this Deed of Trust, it shall mean and include the Agreement) also known by street and number as NONE TO HAVE AND TO HOLD the same together with all appurtenances, in trust nevertheless, that in case of default in the payment of said note or any part thereof or interest thereon, or in the performance of any covenants hereinafter set forth, then upon the beneficiary (note holder) filing notice of election and demand for sale, said Public Trustee, after advertising notice of said sale weekly, for not less than four weeks, in some newspaper of general circulation in said county, shall sell said.property in the manner provided by law in effect at the time of filing said notice and demand, at public auction for cash, at any proper place designated in the notice of sale. Out of the proceeds of said sale said Trustee shall retain or pay first all fees, charges and costs and all moneys advanced for taxes, insurance and assessments, or on any prior encumbrance, with interest thereon, and pay the principal and interest due on said note, rendering the overplus (if any) unto the grantor; and after the expiration of the time of redemption, said Trustee shall execute and deliver to the purchaser a deed to the property sold. The beneficiary may purchase said property or any part thereof at such sale. The grantor covenants that at the time of delivery of these presents, he is seized of said property in fee simple, and that said pmperty is free of encumbrances, except easements, rights of way, conditions, restrictions and reservations of record. The grantor also covenants that be will keep all buildings insured with a company approved by the beneficiary for fire and extended coverage in an amount equal to the unpaid balance of said note with loss payable to the beneficiary, will deliver a copy of the policy to the beneficiary and will pay all taxes and assessments against said property and amounts due on prior encumbrances. If grantor shall fail to pay insurance premiums, taxes or amounts due on pp r or encumbrance, the beneficiaryy may pp the same and all amounts shall become additional indebtedness due hereunder; and in case of foreclosure, he will pay 38mouij3f]L.iw a reaso able attorney fee. Should the beneficiary hereunder be made a party to any action affecting this deed of trust or the title to said property, the grantor agrees that all court costs and a reasonable attorney's fee paid by the beneficiary shall become additional indebtedness due hereunder; and the grantor does hereby release and waive all claims in said property as a homestead exemption or other exemption now or hereafter provided by law. Itis agreed that in case of default in payment of said principal or interest or a breach of any of the covenants herein, then said principal sum hereby secured and interest thereon may at the option of the beneficiary become due and payable at once, anything in said note to the contrary notwithstanding and possession of said property will thereupon be delivered t Crary, and on failure to deliver such possession the beneficiary shall be entitled to a receiver for said property, who may be appointed by any court of corn tClr , " / _w (% mgular number shall include the plural, the plural the singular, and the use of any gender shall be applicable to all genders. All of the covenants �tire�r`5 151<b)y(3(�g•e respective heirs, personal representatives, successors . and assigns of the parties hereto. v e *40 uted the day ari�yew Stu above written. " P J by PUEBLO DEVELOPMENT FOUNDATION f" cue ary / C` o~ _ By G' < t7l Z �- "' P psi ent .,r.o s rrlr,iSTAA OF COLORADO County of Pueblo ss. / Q The foregoing instrtiment was acknowledged before me this t day of 2005 l i t ort' , as President and Robert Roo as Secretary of Foundation, a'Colorado Nonprofit Corporation. ill� �- 0 a pp y . Witness my hand and official seal. AR V Dgnv i&Lrt °CiV and Notary Public 1°4 ne aqb f Peatiug Newly Created [tgal Description @ 3&35106.5, C.R.SJ +�� rl L[D No. 923B. Ret a.Y� ` W OF TRUST (Foblk hmtee) wtthoot Dee oo Sale Clamp 0 Bradford Pub lishing, 1743 Wazee St, Denw% CO 80202 — (303) 292 -2500 — 2 -98