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HomeMy WebLinkAbout12605RESOLUTION NO. 12605 A RESOLUTION RESCINDING RESOLUTION NO. 12575 AND APPROVING THE AMENDED AND RESTATED AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND PUEBLO DEVELOPMENT FOUNDATION AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAID AMENDED AND RESTATED AGREEMENT AND TRANSFERRING $445,809 FROM THE 1992-2016 SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS FUND THEREFOR BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The City Council finds and determines that due to a subsequent change in circumstances, Resolution No. 12575, adopted on January 14, 2013, shall be and hereby is rescinded. SECTION 2. The City Council finds and concludes that pursuant to an Agreement dated January 10, 2000 between the City of Pueblo and the Pueblo Development Foundation ("PDF"), PDF is the owner of real property and improvements located at 33654 United Avenue, Pueblo, CO, 81001 (Lot 58, Pueblo Memorial Airport Industrial Park Subdivision) (the "Property"). SECTION 3. The City Council further finds and determines: (a) The lease of a manufacturing facility on land at the Pueblo Memorial Airport Industrial Park to Westwind Wood Specialties, Inc. ("Company") meets and complies with the criteria and standards established by Section 14-4-85 of the Pueblo Municipal Code. (b) Pueblo Development Foundation will oversee and manage the lease of the 25,650 square foot shell building on the approximately 5.57 acres of land at Pueblo Memorial Airport (herein "Project") to be occupied by the Company. (c) Company believes it will employ and has committed to the City that it will employ ninety-one (91) full-time employees at the Project. (d) The lease of the facility will stimulate and promote industrial activity at Pueblo Memorial Airport thereby creating employment opportunities for the citizens of the City and greater use of airport facilities. (e) The execution and performance of the Amended and Restated Agreement between the City and Pueblo Development Foundation are in the best interests of the City and its citizens and will promote the public health, safety, commerce, prosperity and general welfare of the City and its citizens. SECTION 4. The Amended and Restated Agreement dated February 11, 2013 nunc pro tunc February 1, 2013, between Pueblo, a Municipal Corporation, and Pueblo Development Foundation relating to the Property, a copy of which is attached hereto (“Amended and Restated Agreement”), having been approved as to form by the City Attorney, is hereby approved. The President of the City Council is authorized to execute and deliver the Amended and Restated Agreement in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 5. Funds in the aggregate amount of $445,809 are hereby authorized to be transferred, expended and made available out of the 1992-2016 Sales and Use Tax Capital Improvement Projects Fund in the manner described in the Amended and Restated Agreement. The funds hereby authorized to be transferred and expended shall be held by the City and released, disbursed and paid by the Director of Finance in the following manner: the sum of $445,809 to PDF upon receipt of a copy of the Amended and Restated Agreement executed by PDF. SECTION 6. The officers of the City are directed and authorized to perform any and all acts consistent with the intent of this Resolution and attached Amended and Restated Agreement to effectuate the transactions described therein. SECTION 7. This Resolution shall become effective upon final approval and passage. INTRODUCED: February 25, 2013 BY: Sandy Daff Background Paper for Proposed RESOLUTION DATE: FEBRUARY 25, 2013 AGENDA ITEM # Q-4 DEPARTMENT: Law Department Daniel C. Kogovsek, City Attorney TITLE A RESOLUTION RESCINDING RESOLUTION NO. 12575 AND APPROVING THE AMENDED AND RESTATED AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND PUEBLO DEVELOPMENT FOUNDATION AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAID AMENDED AND RESTATED AGREEMENT AND TRANSFERRING $445,809 FROM THE 1992-2016 SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS FUND THEREFOR ISSUE This Resolution rescinds, due to a subsequent change in circumstances, Resolution No. 12575 adopted on January 14, 2013, and approves an Amended and Restated Agreement between the City of Pueblo and PDF concerning Lot 58, Pueblo Memorial Airport Industrial Park Subdivision, Pueblo County, Colorado (the “Property”) dated February 25, 2013. This Property was conveyed to PDF by the City in 2000, under the terms of an earlier Agreement dated January 10, 2000 (the “2000 Agreement”) between the City and PDF, with respect to a project involving StoneCraft Industries. PDF renovated the Property for use by StoneCraft using PDF funds in the amount of $476,059 and $300,000 in funds from the one-half cent sales and use tax job creating capital projects improvement fund (the “1/2 Cent Jobs Fund”). The Property was leased with an option to purchase to StoneCraft. The lease terminated and StoneCraft did not acquire the Property. Under the 2000 Agreement, the Property was to be deeded back to the City and the City was to repay to PDF any unpaid renovation funds. PDF has not yet been repaid for the renovation funds it expended and the Property has not yet been reconveyed to the City. PDF has continued to pay costs related to the Property. There is now another company, Westwind Wood Specialties, Inc., that desires to lease the Property for a job creating capital improvements project. It would be preferable to have PDF continue to own the Property and lease it to Westwind Wood Specialties. Therefore, the City would agree to pay PDF $445,809 from the ½ Cent Jobs Fund in satisfaction of the 2000 Agreement and for PDF’s expenses in owning the Property. PDF would continue to own the Property and would lease the Property for ten years with an option to purchase to Westwind Wood Specialties. PDF would agree to pay over to the City all rents under the lease, less 5% as reimbursement for its management of the Property. PDF’s obligations under the Agreement would be secured by a first deed of trust on the Property and the deed of trust currently in place on the Property securing the 2000 Agreement will be released. RECOMMENDATION PEDCO and PDF recommend approval of this Resolution. FINANCIAL IMPACT Payment of $445,809 to PDF from ½ Cent Jobs Fund. AMENDED AND RESTATED AGREEMENT THIS AMENDED AND RESTATED AGREEMENT entered into as of February 11, 2013, nunc pro tunc February 1, 2013, between the City of Pueblo, a municipal corporation ( "City") and Pueblo Development Foundation, a Colorado nonprofit corporation ( "Foundation "), WITNESSETH: WHEREAS, Foundation is the owner of Lot 58, Pueblo Memorial Airport Industrial Park Subdivision, Pueblo County, Colorado, consisting of approximately 5.57 acres (the "Property "); and WHEREAS, the Property was deeded to Foundation by City by warranty deed in January, 2000 in connection with a job creating capital improvement project under the provisions of an agreement between City and Foundation dated January 10, 2000 (the "2000 Agreement ") and the obligations of Foundation to City under the 2000 Agreement were secured by a deed of trust encumbering the Property recorded January 26, 2000 at Reception No. 1317692 in the real property records of Pueblo County, Colorado (the "2000 Deed of Trust "); and WHEREAS, under the 2000 Agreement, Foundation leased the Property, with an option to purchase, to StoneCraft Industries ( "StoneCraft ") and remodeled the Property for use by StoneCraft with $300,000 in funds contributed by City and $476,059 in funds contributed by Foundation; and WHEREAS, in the event StoneCraft did not exercise the option to purchase under its lease, then upon payment by City to Foundation of any unpaid Foundation funds used for remodeling the Property, the Property was to be reconveyed by Foundation to City; and WHEREAS, the option to purchase the Property under the StoneCraft lease was not exercised, Foundation has not been reimbursed for the Foundation's funds used to renovate the Property under the 2000 Agreement to date and Foundation has paid additional costs with respect to the Property; and WHEREAS, Westwind Wood Specialties, Inc. ( "Company ") now desires to lease the Property as a part of a new job creating project whereby Company commits it will employ up to ninety -one (91) full -time employees at the Property; and WHEREAS, Foundation is willing to manage the Property and to lease the Property to Company; and WHEREAS City and Foundation wish to resolve the terms and conditions of the 2000 Agreement in a manner which will accommodate and encourage the job creating project of Company; and 2412695.2 WHEREAS, this Agreement was originally made and entered into by the parties on January 14, 2013, but certain circumstances have changed and the parties now desire to amend and restate the original Agreement in its entirety. NOW THEREFORE, in consideration of the foregoing and mutual covenants contained herein, City and Foundation agree as follows: 1. In satisfaction of City's remaining obligation to Foundation under the 2000 Agreement, and in recognition of Foundation's maintenance of the Property and payment of expenses in connection therewith, City shall pay to Foundation the sum of $445,809. 2. As City desires Foundation to work with Company and manage the Property on an ongoing basis in accordance with the provisions of the Lease (as defined below), Foundation shall continue to own the Property and the Property shall not be reconveyed to City at this time. 3. City agrees the 2000 Deed of Trust shall be released of record. 4. Foundation will enter into a lease of the Property with Company to locate its business at Pueblo Memorial Airport Industrial Park. The lease shall be for a term of ten (10) years and will include an option for Company to acquire the Property (the "Lease "). 5. Foundation will oversee and manage the Property and its use by Company in accordance with the covenants and provisions of the Lease. City shall agree to the terms of this Agreement in order to support Foundation and Company in this job creating project, subject to and contingent upon the following conditions and covenants: (a) Foundation and Company entering into and delivering to City the Lease in form and content approved by the City Attorney. (b) Company executing an Agreement with City approved by City Council by Resolution. 6. All rent and other payments received by Foundation under the Lease shall be held in trust by Foundation for the benefit of City and immediately after receipt thereof by Foundation, Foundation shall deliver and pay the rent and payments to City, less five percent (5 %) 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. 7. Foundation shall not sell, encumber, or otherwise transfer the Property, except as provided and set forth herein and in the Lease. 8. Foundation shall perform all covenants and conditions on the part of the Lessor to be performed under the Lease and shall enforce all covenants and conditions on the part of the Lessee to be performed under the Lease. Foundation shall timely give written notice to City of any of Lessee's defaults under the Lease ( "Notice of Company Default "). After delivery of a Notice of Company Default to City, Foundation shall diligently enforce the terms and provisions of the Lease and shall seek to collect its costs and attorneys fees from Company in accordance with the Lease. In the event Foundation is unable to obtain reimbursement of its reasonable attorneys fees, costs and expenses from Company, City agrees to reimburse Foundation for such reasonable attorneys fees, costs and expenses arising out of Foundation's prosecution of Company's default, unless City promptly notified Foundation in writing, after receipt the Notice of Company Default, either (a) that City did not agree with pursuing the default described in the Notice of Company Default; or (b) that City, at its option and expense, would pursue the default on behalf of Foundation through the City Attorney's office, or with other legal counsel reasonably acceptable to Foundation. No provision hereof is intended to or shall limit Foundation's right under the Lease to address any breach of the Lease by Company that Foundation desires to pursue. The parties acknowledge and agree only the reimbursement obligation of City shall be limited hereby. 9. 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. 10. If Foundation defaults in the performance of any covenant or provision of this Agreement or the Lease or if the option to purchase the Property is not exercised by Company, Foundation shall within thirty (30) days after written demand is given to Foundation by City, 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 and except the Lease and Foundation's deed of trust securing the performance of this Agreement, and shall assign the Lease to the City. The provisions of this paragraph may be specifically enforced. 11. 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. 12. 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. 13. This Agreement shall be binding upon and inure to the benefit of 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. (Signatures on Following Page) EXECUTED at Pueblo, Colorado as of the day and year first above written. PUEBLO, A MUNICIPAL CORP e v • • President of the City Council Attest: ' C Cit erk - Approved as to form: ..(girt:1, - 777xidarL._____ City Attorney PUEBLO DEVELOPMENT FOUNDATION 1 By: i ..�. 'President ' Attest: �� LEASE THIS LEASE (this "Lease ") entered into as of February l 2013 by and between Pueblo Development Foundation, a Colorado nonprofit corporation ( "Lessor ") and Westwind Wood Specialties, Inc., a Kansas corporation ( "Lessee "). WITNESSETH: WHEREAS, Lessor is the owner of Lot 58, Pueblo Memorial Airport Industrial Park Subdivision, Pueblo County, Colorado, consisting of 5.57 acres more or less (the "Land "), together with an approximately 51,024 square foot building (the "Facility ") located thereon and known by street and number as 33645 United Avenue, Pueblo, CO (collectively the Land and Facility are herein referred to as the "Leased Premises "), and WHEREAS, Lessee has occupied the Leased Premises since January 4, 2013 pursuant to a thirty day written lease agreement with Lessor, and Lessee is now desirous of leasing the Leased Premises for a longer term and in obtaining an option to purchase the Leased Premises upon the terms and conditions hereinafter set forth; NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions contained herein, Lessor and Lessee hereby agree as follows: Article 1. Leased Premises. 1.01 Lessor hereby leases to Lessee and Lessee hereby leases from Lessor, subject to the covenants, provisions and conditions herein, the Leased Premises. 1.02 This Lease and Lessee's use of the Leased Premises are subject to the covenants, conditions, restrictions and limitations, if any, appearing of record, including those set forth in the Warranty Deed recorded in the office of the Clerk and Recorder of Pueblo County, Colorado on January 26, 2000 under Reception No. 1317690 (the "Warranty Deed "), and all applicable zoning and land use laws, ordinances, codes and regulations governing and regulating the Leased Premises and its use. Whenever the word "Company" appears in the Warranty Deed it shall be construed to mean and include Lessee. Article 2. Term. The Term of this Lease shall be ten (10) years commencing February 1, 2013 and ending ten (10) years thereafter on January 31, 2023, unless sooner terminated as provided herein (the "Termination Date "). Article 3. Rent. -1- • 3.01 Lessee shall pay to Lessor base rent for the Leased Premises for the full Term in the amount of $590,000.00, payable in installments of $5,462.97 per month (the "monthly rent "). Monthly rent is payable monthly in advance, without notice or demand, with the first monthly payment due on February 1, 2013, and subsequent payments due on the same day of each month thereafter; provided, however, that so long as Lessee is not in default under this Lease, or under the Agreement among the City of Pueblo (the "City "), Lessor and Lessee entered into February 11, 2013, nunc pro tunc February 1, 2013 concerning the Leased Premises (the "City Agreement "), Lessee shall have no obligation to pay monthly rent during the first twelve (12) months of the Term. The monthly rent as set forth above has been calculated on the basis of the deferral of the first years rent. In the event that Lessee is not entitled to the deferral, then the monthly rent will be recalculated accordingly. 3.02 All payments shall be made at or mailed by United States mail to the following address: 301 North Main Street, Suite 210, Pueblo, Colorado, 81003, or such other address as Lessor may from time to time designate to Lessee in writing. 3.03 All monthly rent and other payments required to be made by Lessee hereunder which shall remain unpaid fifteen (15) days after their due dates shall bear interest at the rate often percent (10 %) per annum. Notwithstanding foregoing sentence, rent shall be due on the first day of each month of the Term and the existence of interest on late rent payments shall not alter, excuse, or change the obligation of Lessee to pay rent when due, nor shall it substitute for or replace any other remedy which Lessor may have under the terms of this Lease and under Colorado law for a failure to pay rent in a timely manner. All such remedies of Lessor shall be cumulative. 3.04 Lessee's obligation to pay rent hereunder is absolute and unconditional and rent shall not be offset, abated, reduced or withheld for any cause or reason whatsoever. 3.05 It is the intent of the parties hereto that Lessor incur no obligation, monetary or otherwise under this Lease. All amounts required to be paid by Lessee under this Lease, whether or not payable directly to Lessor and including without limitation, taxes, insurance, utilities and maintenance costs shall be considered "rent" under this Lease; and notwithstanding the base rent deferral contained in Section 3.01 above, all such amounts shall be due and payable during the entire Term of this Lease as is further set forth herein and such amounts shall not be subject to the deferral granted for base rent under Section 3.01 above. Article 4. Use of Leased Premises. 4.01 The Leased Premises shall be used and occupied by Lessee exclusively for manufacturing and distribution purposes associated with or incident to Lessee's business activities. 4.02 Lessee shall use the Leased Premises in a careful, safe and proper manner in compliance with all laws and regulations applicable to the Leased Premises and Lessee's use -2- thereof. Lessee shall not cause, maintain or permit any nuisance or waste in, on, or about the Leased Premises. 4.03 Lessee shall not abandon nor cease to conduct business on the Leased Premises for any period longer than 180 consecutive days. In the event that Lessee does so abandon or cease to conduct business in the Leased Premises, Lessor may, but shall not be required to, repossess and take control of the Leased Premises without the requirement of a court order and without prejudice to any of its other rights and remedies under this Lease and under Colorado law. 4.04 Lessee agrees and acknowledges that the City has reserved the right, in conjunction with its previous ownership of the Leased Premises, and 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 the 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. Lessee further acknowledges and agrees that the City has not made, nor by any provision of this Lease shall the City be construed to have made any representation or • warranty to the contrary relating thereto. Article 5. Condition of Premises,. The taking of possession of the Leased Premises by Lessee on and after February 1, 2013 shall be conclusive evidence that Lessee accepts the Leased Premises in its then present condition "As Is" and that the Leased Premises are in good and satisfactory condition at the time such possession was taken. Lessor makes no representations or warranties of any kind as to the condition of the premises and /or as to the fitness of the Leased Premises for Lessee's intended uses. Article 6. Alterations and Improvements. 6.01 Lessee shall not make any additions, alterations or improvements in or to the Leased Premises ( "Alterations ") without Lessor's prior written consent. Lessee shall not permit or allow any lien to be filed or recorded against the Leased Premises or Lessor's interest therein and Lessee shall fully cooperate with Lessor in obtaining the protection afforded Lessor under Section 38 -22 -105, C.R.S. Notwithstanding the foregoing, no alterations, improvements and/or repairs of any nature shall be permitted without Lessor receiving, in advance, written and binding lien waivers from all persons or entities contracted to do any such additions, alterations, repairs, or improvements in or to the Leased Premises. The presentation of lien waivers shall be a condition precedent to the consent of Lessor hereunder. All Alterations made in or to the Leased Premises by Lessee shall become the property of Lessor and be surrendered with the Leased Premises at the termination of this Lease. 6.02 Lessor agrees that its approval or consent to such Alterations shall not be unreasonably withheld or delayed. -3- 6.03 All equipment, fixtures and improvements of a detachable or temporary nature installed or placed upon the Leased Premises by Lessee, including trade fixtures, shall remain the property of Lessee, subject to Lessee's right, at its option, to remove same not later than ten (10) days after termination of this Lease. Lessee, at its expense, shall promptly repair any damage resulting from such removal. The failure of Lessee to remove its equipment, fixtures and detachable improvements within ten (10) days after termination of this Lease shall, at the option of Lessor, be deemed an abandonment of such property. Article 7. Repairs and Maintenance. 7.01 Lessor shall not be obligated to repair, maintain or alter the Leased Premises or any part thereof. Lessee, at its expense, shall keep and maintain the Leased Premises, including, without limitation, the Facility, structural components, roofs, walls, equipment, fixtures, and electrical, heating, plumbing and air conditioning systems, in good condition and repair and in a good, clean and safe condition at all times during the effective term of this Lease and return the same to Lessor at Termination Date in as good condition and state of repair as the same were in as of February 1, 2013, except for loss occasioned by ordinary wear. 7.02 If Lessee becomes obligated to make repairs which are or may be covered by any manufacturer's or general contractor's warranty issued to or for the benefit of Lessor, Lessor will assign and transfer to . Lessee its interest in any such warranty for the purpose of making such repairs. If any such warranty may not be legally assigned, Lessor, at the request and expense of Lessee, will enforce such warranty on behalf of Lessee. • • 7.03 If Lessee becomes obligated to make repairs caused by an occurrence covered by the insurance described in Article 12, the net proceeds of such insurance shall be made available to Lessee to offset the cost of such repairs: Article 8.. Right of Entry. Lessor, or Lessor's officers, employees, agents and representatives, as the case may be, may enter the Leased Premises during normal business hours upon prior written notice to Lessee, except notice shall not be required in case of emergency, such as fire. Article 9. Assignment or Sublease. Lessee shall not voluntarily or by operation of law assign all or any part of the Lease or Lessee's interest therein without the express written consent of Lessor, which consent will not be unreasonably withheld. Lessor may withhold its consent if the proposed assignee's financial standing and responsibility at the time of the proposed assignment is insufficient in Lessor's sole discretion to give assurance of performance and compliance with all terms and conditions of this Lease and the City Agreement. Upon such an assignment and consent, Lessee shall be released from all obligations arising or occurring under this Lease after the effective date of such assignment and consent, provided that such assignee shall execute, acknowledge and deliver to -4- Lessor an assumption agreement in form and substances satisfactory to Lessor and the City, whereby assignee agrees to observe, perform and keep all the terms, provisions, covenants and conditions required to be observed, performed and kept by Lessee hereunder and under the City Agreement. Any assignment or attempted assignment of the Lease or an interest herein by Lessee without Landlord's express written consent shall be null and void. Notwithstanding the foregoing, Lessee may not assign or transfer the purchase option under Articles 16 and 17 independent or separate from an assignment or transfer of the Lease as a whole. Article 10. Insurance and Indemnification. 10.01 Lessee shall indemnify and hold Lessor harmless from and defend Lessor against any and all claims or liability, including cost of defense and reasonable attorney fees, for any injury or damage to Lessee or its officers, agents or employees, or to Lessee's property, or to any third person, or to the property of any third person: (a) occurring in, on or about the Leased Premises or any part thereof by or from any cause whatsoever except injury or damage caused by the negligent acts of Lessor, its officers or employees; or (b) arising out of or resulting from the Leased Premises, or any condition thereon, or from Lessee's use and occupancy of the Leased Premises, or any equipment therein or appurtenances thereto, or any activity conducted thereon. 10.02 Lessee shall secure and maintain in full force and effect, at its expense, during the effective period of this Lease, commercial liability insurance including personal injury, property damage and contractual coverage in the minimum amount of $2,000,000 combined single limits naming Lessor as an additional insured. 4 4 10.03 Lessee shall secure and maintain during the Term of this Lease Colorado Workers' Compensation insurance or other similar coverage in the statutorily mandated amounts. 10.04 A copy of each insurance policy, or certificate thereof, issued by an association or company authorized to issue such policy or policies under the laws of the State of Colorado and containing a provision prohibiting cancellation or material modification of the insurance except after thirty (30) days' notice to Lessor, shall be delivered to the Lessor within thirty (30) days after date of this Lease, and thereafter the Lessee will furnish to Lessor evidence of the continuance of the insurance coverage required herein within a reasonable time after the same has been issued. Article 11. Fire and Extended Coverage Insurance. 11.01 Lessee shall, at its expense, during the Term of this Lease, secure and maintain in full force and effect "All- Risk" casualty insurance (including, without limitation, fire, extended coverage and boiler insurance upon the Leased Premises). Such insurance shall be in an amount not less than the full replacement value of the Facility and improvements (without deduction for physical depreciation), and issued by an insurance company or association authorized to issue such policies under the laws of the State of Colorado and approved by Lessor, shall contain a deductible of not more than $10,000.00 and a standard Colorado mortgagee clause in favor of Lessor and any mortgagee of Lessor's interests in the Leased Premises, and shall not be subject to cancellation, -5- reduction or modification upon less than thirty (30) days' written notice to Lessor. Such insurance, by its terms or by endorsement, shall waive any right of subrogation of the insurer against Lessor, its officers, agents and employees, for any loss or damage resulting from covered perils. Lessee will furnish to Lessor evidence of such insurance on February 1, 2013 and will thereafter furnish evidence of its continuance during the Term of this Lease. 11.02 Lessee shall, at its expense, secure and maintain fire and extended coverage insurance on all fixtures, equipment and improvements installed by Lessee on the Leased Premises. Such insurance, by its terms or by endorsement, shall waive any right of subrogation of the insurer against Lessor, its officers, agents and employees, for any loss or damage resulting from covered perils. Article 12. Taxes and Assessments. 12.01 Lessor shall promptly pay and discharge as they become due and before delinquency any and all real property taxes, assessments, charges, governmental liens, levies or excises, whether general or special, or ordinary or extraordinary, of any name, nature and kind whatsoever which may be levied, charged, or imposed, or which may be come a lien or charge on or against the Leased Premises or any part thereof, the leasehold interest of Lessee herein, or the improvements situated on the Leased Premises during the term of this Lease. Lessee shall be responsible and pay Lessor for such real property taxes in accordance with the provisions of Section 12.03. 12.02 Lessee shall pay before delinquency any and all property taxes levied or charged ° against any of the personal property belonging to it and situated on the Leased Premises or used in connection with the operation and maintenance of the Facility on the Leased Premises. 12.03 Lessee shall pay to Lessor on the first day of each month during the term of this Lease an amount equal to 1/12 of the real property taxes on the Leased Premises which sum shall be based on the real property taxes assessed and paid for the prior year. The parties stipulate and agree that during the first year of the tern of this lease the monthly payment due from Lessee for real property taxes shall be three thousand six hundred two dollars and eighty -five cents ($3,602.85). Said figure has been derived based upon the prior year taxes in the total amount of forty -three thousand two hundred thirty -four dollars and twelve cents ($43,234.12). Lessor agrees to provide Lessee with a copy of the Notice Of Valuation promptly following the once yearly receipt of the same from the governmental taxing entity. In conjunction with the provision to Lessee of the Notice Of Valuation, Lessor shall inquire of Lessee as to Lessee's opinion of the reasonableness of the Valuation, and shall give due consideration to Lessee's opinion of Valuation. Lessor shall give good faith consideration to protesting the valuation if Lessee so desires. Upon its payment of the property taxes, Lessor shall provide a copy of the receipt from the taxing authority to Lessee. Article 13. Utilities. -6- 13.01 Lessee shall pay before delinquent all charges for sewer, water, gas, electricity, telephone and all other utility services furnished to or used in or supplied to the Leased Premises. Lessor shall not be obligated to furnish or provide any utilities, facilities or services of any kind. 13.02 Lessee shall pay to the City the combined service fee required by paragraph 4(h) of the Warranty Deed referenced in Section 1.02 of this Lease. Article 14. Damage to or Destruction of Premises. If, during the Tenn of this Lease, the Leased Premises shall be damaged to such an extent that the repair of such damage and the restoration of the Leased Premises can be accomplished, with reasonable diligence, within one hundred twenty (120) days after such damage, Lessee shall promptly repair such damage and cause the Leased Premises to be restored to their condition prior to the event causing the damage. If, during the Term of this Lease, the Leased Premises shall be destroyed or damaged, or partially destroyed or damaged, to such an extent that the repair of such destruction or damage and the restoration of the Leased Premises cannot be accomplished, with reasonable diligence, within one hundred twenty (120) days after destruction or damage, then Lessee shall promptly notify Lessor in writing of such fact within forty-five (45) days after the destruction or damage, and Lessee shall thereafter have the right, during a period of thirty (30) days following such notification, to terminate this Lease by written notice to the Lessor, declaring this Lease to be terminated. If this Lease is so terminated all proceeds of insurance required to be maintained by Lessee under Article 11.01 (or, if Lessee fails to maintain the insurance required to be maintained by Lessee under Article 11.01, an amount equal to the insurance proceeds which wad have been available but for such failure) shall be paiti to Lessor. Unless such notice of immediate termination shall be given within such 30 -day period, this Lease shall continue in full force and effect and Lessee shall promptly repair such destruction or damage and cause the Leased Premises to be restored to their condition prior to the event causing the destruction or damage. In the event the Leased Premises are destroyed or damaged, or partially destroyed or damaged, the monthly rent payable by Lessee shall remain in effect and shall not be reduced or abated. Article 15. Eminent Domain. If the whole or substantial part of the Leased Premises shall be taken or condemned by any competent authority for any public or quasi - public use or purpose under any statute or by the right of eminent domain, or purchased under threat of such taking, then this Lease shall terminate on the date when the condemning authority takes possession of the Leased Premises or the substantial part thereof so taken. There shall be no apportionment of the award for taking or condemnation, the entire award going to Lessor, provided Lessee shall have the right to recover any award which may be made for damages to or condemnation of Lessee's movable trade fixtures, equipment, furniture and furnishings. Article 16. Option to Purchase Leased Premises. 16.01 If Lessee is not in default hereunder or under the City Agreement, and has -7- maintained its Employment Commitment by employing ninety -one (91) full -time employees at the Leased Premises for those periods required under the City Agreement, Lessee shall have the option to purchase the Leased Premises upon the terms and conditions contained in Article 17 for a purchase price as follows: (a) the option may be exercised during the last three (3) years of the Term, by Lessee giving written notice thereof to Lessor one hundred and twenty (120) days prior to the proposed closing date; but in no event less than one hundred twenty (120) days prior to the end of the Term of the Lease; and (b) the purchase price shall be an amount equal to the sum of the remaining monthly installments of rent which would otherwise have been due through the end of the Term. 16.02 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. Article 17. Conditions of Purchase Option. 17.01 Upon valid exercise of the purchase option, the terms of purchase and sale shall include the following conditions and requirements: (a) Closing to be held not later than 120 days after date of Lessee's written notice to exercise the option. 1 (b) Conveyance shall be made by general warranty deed to Lessee, free of liens and encumbrances, except those for general property taxes and those created by acts or defaults of Lessee, and subject to easements, rights -of -way, conditions, covenants, restrictions, reservations, encumbrances and limitations of record and those created by acts of Lessee. (c) Sale shall be contingent upon prior approval of the Federal Aviation Administration and its issuance of all Deeds of Release therefore. (d) The Leased Premises shall be conveyed and transferred in their condition at the time of sale "AS IS" and "WHERE IS" without any representation or warranty with respect to the Leased Premises, including without limitation, the quantity, quality or condition of the Leased Premises, environmentally or otherwise. Article 18. Holding Over. In the event that Lessee does not exercise its option to purchase under Article 16 and 17 and Lessee shall, with the consent of Lessor, retain possession of the Leased Premises after the expiration of the Term of this Lease, this Lease shall continue on a month -to -month basis upon all the terms, covenants and conditions herein specified, except Articles 16 and 17 shall automatically expire at the end of the original Lease Term and shall thereafter be of no further force and effect. -8- Article 19. Quiet Possession. Lessee shall, and may peacefully have, hold and enjoy the Leased Premises, subject to the other terms hereof, provided that Lessee pays the monthly rent herein recited and performs all of Lessee's covenants and agreements contained herein and in the City Agreement. Article 20. Default. 20.01 In the event of default at any time by Lessee in the payment of the monthly rent herein provided for or in the performance of any other of its covenants herein contained or contained in the City Agreement, Lessor shall have the right, immediately for the non - payment of rent and any other amount due hereunder; and in the event of other defaults, after thirty (30) days' notice in writing to Lessee and Lessee's failure within said thirty (30) day period to cure said default, or if said default does not relate to the payment of money and cannot by its nature be cured within said thirty (30) day period, to undertake and diligently pursue action to cure said default, to either: (a) terminate this Lease and re -enter and take possession of the Leased Premises, and /or (b) pursue any remedy whatsoever provided by law; and /or ' (c) re -enter and take possession of the Leased Premises and use its best efforts to re -let the same for and on account of Lessee for the then full remaining portion of the unexpired Term of this Lease or for any shorter period, and to collect and receive payment of rent therefore, but no such re -entry or re- letting shall be construed as a termination of this Lease or as a release of Lessee from Lessee's obligation to pay monthly rent provided during the full Term of this Lease, or from Lessee's obligation to perform any other covenant herein contained. It expressly being understood and agreed that in the event of any such re -entry or re- letting by Lessor such re -entry or re- letting shall not operate to terminate this Lease in any other particular or alter the obligation of Lessee to perform its covenants and to pay monthly rent pursuant to the terms hereof unless Lessor expressly so elects pursuant to Section 20.01(a) above. Lessor shall in no way be responsible or liable for any failure to re -let the Leased Premises, or any part thereof, or for any failure to collect any rent due upon such re- letting. No notice from Lessor hereunder or under a forcible entry and detainer statute or similar law constitutes an election by Lessor to terminate this Lease unless such notice specifically so states. Lessor reserves the right following any such re -entry and/or re- letting to exercise its right to terminate this Lease. It is the express intention of this Section that no notice shall be required of Lessor as a condition precedent to the exercise of its remedies for a failure to pay the monthly rent and any other required payment of money by Lessee. 20.02 If Lessor does not elect to terminate this Lease but takes possession as provided for -9- in Section 20.01(c), Lessee shall pay to Lessor the monthly rent and other charges at the times and in the manner as herein provided which would be payable if such repossession had not occurred, less the net proceeds, if any, of any re- letting of the Leased Premises after deducting all Lessor's reasonable expenses including, without limitation, all repossession costs, brokerage commissions, legal expenses, attorneys' fees, alteration and repair costs and expenses of preparation for such re- letting. 20.03 In the event the parties hereto become involved in a dispute arising out of this Lease, or the performance or breach thereof, the Court shall award costs, expenses, and attorney fees to the prevailing party. 20.04 If Lessee violates any of the terms and provisions of this Lease or defaults in any of its obligations hereunder other than the payment of monthly rent or other sum payable hereunder, such violation may be restrained or such obligation enforced by injunction at the instance and request of Lessor and without the showing of any special damages or other adequate remedy at law. Article 21. Waiver and Time of Essence. No waiver of any breach or breaches of any provision, covenant or condition of this Lease shall be construed to be a waiver of any preceding or succeeding breach of such provision, covenant or condition, or of any other provision, covenant or condition. Acceptance of monthly rent or partial monthly rent by Lessor shall not constitute a waiver of any then existing breach or default. ' Time is of the essence for each and every provision, tovenant and condition herein contained and on the part of Lessee to be done and performed. Article 22. Assignment by Lessor. Lessor shall have the right to transfer and assign, in whole or in part, all its right and obligations hereunder and in the Leased Premises, and in such event and upon Lessor's transferee assuming Lessor's obligations hereunder no further liability or obligation shall thereafter accrue against Lessor hereunder. Lessor shall give Lessee written notice of its intent to make an assignment or transfer of this Lease and a copy of the express (written) assumption agreement between Lessor and assignee or transferor. Article 23. Subordination to Mortgage. This Lease shall be and is hereby made subordinate to any mortgage or deeds of trust which may now or hereafter encumber the Leased Premises and to all renewals, modifications, consolidations, replacements and extensions thereof. This clause shall be self - operative and no further instrument of subordination need be required by any mortgagee. This clause shall be for the benefit of any mortgagee. In confirmation of such subordination, however, Lessee shall, at Lessor's request, execute promptly any appropriate certificate, subordination agreement or instrument that Lessor may request. Lessee hereby constitutes and appoints Lessor the Lessee's -10- attorney -in -fact to execute any such certificate, subordination agreement or instrument for and on behalf of Lessee. Notwithstanding the fact that this Lease is and shall be subordinate as provided above, Lessee will as a result of the enforcement of the default or foreclosure provisions of such mortgage or deed of trust, including conveyance by deed in lieu of foreclosure, automatically become the Lessee of the person or party succeeding to the interest of Lessor without change in the terms or other provisions of this Lease and Lessee agrees to attorn to such party; provided, however, that such mortgagee or successor in interest shall not (i) be bound by any amendment or modification to this Lease made without the written consent of such mortgagee or such successor in interest; (ii) be liable for any previous act or omission by Lessor under this Lease; or (iii) be subject to any offset which shall theretofore have accrued to Lessee against Lessor. Lessee further agrees, upon demand, to execute such non - disturbance and attornment agreements as any such mortgagee or successor shall request. The provisions of this Article shall not alter or otherwise affect, alter or modify the option to purchase granted by Articles 16 and 17 of this Lease nor shall the provisions of this Article operate to increase or otherwise alter the purchase price to be paid by Lessee upon exercise of the option in accordance with the provisions of Article 17. Article 24. Estoppel Certificate. At Lessor's request Lessee will execute either an estoppel certificate addressed to Lessor's mortgagee or any prospective successor of Lessor, or a third -party agreement among Lessor, Lessee and said mortgagee or successor, certifying to such facts (if true) regarding the status and terms of this Lease as may be requested, and agreeing to such notice provisions and other matters as such mortgagee or successor may reasonably require in connection with Lessor's financing or the conveyance of the LeasedPremises. • Article 25. Notices. All notices, demands or communications of any kind which may be required or desired to be served, given or made by Lessee upon or to Lessor, under the terms of or in connection with this Lease, shall be sufficiently served, given or made (as an alternative to personal service upon Lessor) if such notice, demand or communication is sent by certified United States mail, addressed to: Pueblo Development Foundation 301 N. Main St., Suite 210 Pueblo, Colorado 81003 (or at such other address as may hereafter from time to time be designated for this purpose by Lessor to Lessee in writing). All notices, demands or communications of any kind which may be required or desired to be served, given or made by Lessor upon or to Lessee, under the terms of or in connection with this Lease, shall be sufficiently served, given or made (as an alternative to personal service upon Lessee) if such notice, demand or communication is sent by certified United States Mail, addressed to: -11- Westwind Wood Specialties, Inc. 33645 United Avenue Pueblo, CO 81001 (or to such other address as may hereafter from time to time be designated for this purpose by Lessee to Lessor in writing). Article 26. Environmental Provisions. 26.01. For the purpose of this Lease, "Hazardous Materials" means any hazardous or toxic substance, material or waste which is or become regulated by any local government authority, the State of Colorado or the United States government and shall include, but not be limited to (1) substances defined as "hazardous waste," "restricted hazardous waste," "hazardous substance" or "hazardous material" under any applicable federal, state or local law or regulation ( "Environmental Regulations "), (2) asbestos - containing materials, (3) PCBs, (4) petroleum or petroleum based products, and (5) lead. 26.02 Lessee will comply with Environmental Regulations that are applicable to the Lessee and its use of the Leased Premises. No activity shall be undertaken by the Lessee, its employees, agents, licensees, invitees, contractors or subcontractors, on all or any portion of the Leased Premises which would cause or permit: (i) the presence, use, generation, release, • discharge, storage or disposal of any Hazardous Material in, on, under, about, or from the Leased Premises or any part thereof in violation of any Environmental Regulations; (ii) any portion of the Leased Premises to become a hazardous waste treatment, storage or disposal facility without receiving proper governmental authorization, and in compliance with all Environmental Regulations; or (iii) the discharge of pollutants or effluents into any water source or system, or the discharge into the air of any emissions without receiving proper governmental authorization, and in compliance with all Environmental Regulations, including, without limitation, the Federal Water Pollution Control Act, U.S.C. Section 1251 et seq. and the Clean Air Act, 42 U.S.C. Section 7401 et seq. 26.03 Lessee agrees to indemnify and forever hold harmless the Leased Premises, Lessor, its agents, successors, and assigns and Lessor's mortgagee, as their interest may appear, from all claims, losses, damages, expenses and costs, including, but not limited to, attorneys' fees, remedial, and cleanup costs, incurred by reason of the use, storage, generation, release, discharge, maintenance, disposal, or removal of Hazardous Materials in, on, under, about, or from the Leased Premises, or any part thereof, by Lessee, its employees, agents, licensees, invitees, contractors and subcontractors. The provisions of Article 27 shall expressly survive the expiration of the Term or other termination of this Lease. Article 27. Escrow of Funds to Pay Taxes and Insurance. -12- • 27.01 Deposits for Taxes. Payments by Lessee for real property taxes shall be made in accordance with the provisions of Article 12 hereof. The purpose of these monthly deposit payments is to provide Lessor with funds on hand to pay all such taxes in a timely manner. Provided that no default exists under the Lease or under the City Agreement, Lessor will apply the amounts so deposited toward the payment of such taxes, assessments and other charges when due, but in no event will Lessor be liable for any interest on any amount so deposited, and the money so received may be held and commingled with Lessor's own funds. 27.02 Deposits for Premiums. Notwithstanding any other provision of this Lease, on February 1, 2013, Lessee shall deposit with Lessor an amount equal to 1 /12th of the amount that would have been required to make the last most recent annual payments of the premiums for the policies of insurance referred to Sections 10.02 and 11.01 above, multiplied by the number of whole and partial months that have elapsed since the most recent policy anniversary date for each such policy. Thereafter, with each monthly rent payment due under the Lease (or on or before the first day of each month during the period in which Lessee is not required to pay make monthly rent payments pursuant to Section 3.01 above), Lessee shall deposit with Lessor an amount equal to 1 /12th of the amount that would have been sufficient to pay the last most recent annual premium for each insurance policy referred to in Sections 10.02 and 11.01 above. The purpose of these deposits is to provide Lessor with sufficient funds on hand to pay all such premiums 30 days before the date on which they become past due. Provided that no default exists under the Lease or the City Agreement, Lessor will apply the amounts so deposited to the payment of such insurance premiums when due, but in no event will Lessor be liable for any interest on any amount so deposited, and the money so received may be held and commingled with Lessor's own funds. Article 28. Miscellaneous Provisions. 28.01 Colorado Law. This Lease shall be governed by the laws of the State of Colorado and shall be construed in accordance therewith. 28.02 Writing for Waiver or Modification. No provision of this Lease 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. 28.03 Binding Effect. This Lease sets forth the entire and complete understanding and agreement of the parties hereto. Lessee acknowledges and agrees that it has not relied upon any statements, representations, agreements or warranties except such as are expressed herein. This Lease shall be binding on the parties, their successors and approved assigns. The parties agree to do any and all things lawful and necessary to effectuate the purpose of this Lease. 28.04 Construction. Throughout this Lease, 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. 28.05 Text to Control. The headings of sections are included solely for convenience of -13- reference. If any conflict between any heading and the text of this Lease exists, the text shall control. 28.06 Severability. If any provisions of this Lease 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 shall be construed and enforced as if such invalid provisions had never been inserted in the Lease. 28.07 Venue and Jury Trial. Lessor and Lessee agree that the venue for all actions or causes of action relating to this Lease or the Leased Premises 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. 28.08 Lessee's Warranties. The persons signing this Lease 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 and that this Lease 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 on the day and year first above written. PUEBLO DEVELOPMENT FOUNDATION WESTWIND WO • • SPECIALTIES, INC. B / - By .c./ Title: A(GS /,0 Title /--�� i>#-4 [SEAL] [SEAL] Attest: / Attes ,...:�►...�; Name: v c _ s h , Name: `(1ke, Title: Tic ,,p Title: _ ....1.��'�Adik, -14- Reception 1937763 03/22/2013 10 AM 1 2 DEED OF TRUST 3 4 5 THIS DEED OF TRUST is made this / ( day of February, 2013, between Pueblo Development Foundation, 6 a Colorado nonprofit corporation (Grantor), «hose address is 301 North Main Street, Pueblo, CO 81003; and the 7 Public Trustee of County of Pueblo, Colorado (Trustee); for the benefit of City of Pueblo, a municipal corporation 8 (Beneficiary), whose address is: 200 South Main Street, Pueblo CO 81003, Attn: City Manager. 9 10 Grantor and Beneficiary covenant and agree as follows: 11 12 1. Property in Trust. Grantor, in consideration of the indebtedness and other obligations herein recited and the 13 trust herein ,created, hereby grants and conveys to Trustee in trust, with power of sale, the following legally described 14 property located in the County of Pueblo , State of Colorado: 15 16 Lot 58, Pueblo. Memorial Airport Industrial Park Subdivision 17 18 known as No. 33645 United Avenue, Pueblo CO 81001, (Property Address), 19 Street Address, City, State, Zip 20 21 together with all its appurtenances (Property). 22 23 2. Obligations Secured. This Deed of Trust is given to secure to Beneficiary: 24 A. the obligations of Grantor under that certain Amended and Restated Agreement dated February 11, 25 2013, nunc pro tunc February 1, 2013 between Grantor And Beneficiary (Agreement), pursuant to which Grantor agreed 26 to perform certain covenants with respect to the Property as described therein. Grantor agreed to secure the performance 27 of its obligations under the Agreement by this Deed of Trust. Grantor and Beneficiary agree the Agreement is an 28 obligation other than an evidence of debt of the type described in C.R.S. §38 -39 -102 (5). For purposes of clarity, this 29 deed of trust may be released pursuant to C.R.S. 38 -39 -102 (5) as in effect as of the date hereof, upon: the (1) receipt by 30 the public trustee of the written request of Beneficiary or its assignee, duly executed and acknowledged; (ii) presentation 31 to the public trustee of an affidavit of such Beneficiary or assignee stating that the purpose of the deed of trust has been 32 fully or partially satisfied; and (iii) payment of the prescribed fee. 33 B. the payment of all sums disbursed by Beneficiary in accordance with this Deed of Trust to protect the 34 security of this Deed of Trust; and 35 C. the performance of the covenants and agreements of Grantor herein contained. 36 37 3. Title. Grantor covenants that Grantor owns and has the right to grant and convey the Property, and warrants 38 title to the same, subject to general real estate taxes for the current year, easements of record or in existence, and recorded 39 declarations, restrictions, reservations and covenants, if any, as of this date; and subject to easements, rights of way, 40 conditions, restrictions and reservations of record. 41 42 4. Payment of Principal and Interest. INTENTIONALLY DELETED. 43 44 5. Application of Payments. INTENTIONALLY DELETED. 45 46 6. Charges; Liens. Grantor shall perform all of Grantor's obligations under any prior deed of trust and any 47 other prior liens. Grantor shall pay all taxes, assessments and other charges, fines and impositions attributable to the 48 Property which may have or attain a priority over this Deed of Trust by Grantor making payment when due, directly to 49 the payee thereof. Despite the foregoing, Grantor shall not be required to make payments otherwise required by this 50 paragraph if Grantor, after notice to Beneficiary, shall in good faith contest such obligation by, or defend enforcement of 51 such obligation in, legal proceedings which operate to prevent the enforcement of the obligation or forfeiture of the 52 Property or any part thereof, only upon Grantor making all such contested payments and other payments as ordered by 53 the court to the registry of the court in which such proceedings are filed. 54 55 7. Property Insurance. Grantor shall keep the improvements now existing or hereafter erected on the Property 56 insured against loss by fire or hazards included within the term "extended coverage" in an amount at least equal to the 57 insurable value of the Property. 58 59 8. Preservation and Maintenance of Property. Grantor shall keep the Property in good repair and shall not 60 commit waste or permit impairment or deterioration of the Property. Grantor shall perform all of Grantor's obligations 6 I under any declarations, covenants, by-laws, rules, or other documents governing the use, ownership or occupancy of the 62 ., :; Property. 63 64 9. Protection of Beneficiary's Security. Except when Grantor has exercised Grantor's rights under paragraph 65 6 above, if Grantor fails to perform the covenants and agreements contained in this Deed of Trust, or if any action or 66 proceeding is commenced which materially affects Beneficiary's interest in the Property, then Beneficiary, at 67 Beneficiary's option, with notice to Grantor if required by law, may make such appearances, disburse such sums and 68 take such action as is necessary to protect Beneficiary's interest, including, but not limited to: 69 (a) any general or special taxes or ditch or water assessments levied or accruing against the Property; 70 (b) the premiums on any insurance necessary to protect any improvements comprising a part of the 71 Property; 72 (c) the reasonable costs and expenses of defending, protecting, and maintaining the Property and 73 Beneficiary's interest in the Property, including repair and maintenance costs and expenses, costs and expenses of 74 protecting and securing the Property, receiver's fees and expenses, inspection fees, appraisal fees, court costs, attorney Page 1 of3 Initia 2035312.1 1937763 TD 03/22/2013 10:03:26 AM Page: 2 of 3 R 21.00 D 0.00 T 21.00 �'`•r' Gilbert Ortiz Clerk /Recorder, Pueblo County, Co 1111 S' G 'IA'hM:1411. 11111 75 fees and costs, and fees and costs of an attorney in the employment of Beneficiary or holder of the certificate of 76 purchase; 77 (f) all other costs and expenses allowable by this Deed of Trust; and 78 (g) such other costs and expenses which may be authorized by a court of competent jurisdiction. 79 Any amounts disbursed by Beneficiary pursuant to this paragraph 9, shall become additional indebtedness of 80 Grantor secured by this Deed of Trust. Such amounts shall be payable upon notice from Beneficiary to Grantor 81 requesting payment thereof, and Beneficiary may bring suit to collect any amounts. Nothing contained in this paragraph 82 9 shall require Beneficiary to incur any expense or take any action hereunder. 83 84 10. Inspection. Beneficiary may make or cause to be made reasonable entries upon and inspection of the 85 Property, provided that Beneficiary shall give Grantor notice prior to any such inspection specifying reasonable cause 86 therefore related to Beneficiary's interest in the Property. 87 88 11. Condemnation. INTENTIONALLY DELETED. 89 90 12. Grantor Not Released. INTENTIONALLY DELETED. 91 92 13. Forbearance by Beneficiary Not a Waiver. Any forbearance by Beneficiary in exercising any right or 93 remedy hereunder, or otherwise afforded by law, shall not be a waiver or preclude the exercise of any such right or 94 remedy. 95 96 14. Remedies Cumulative. Each remedy provided in the Agreement and this Deed of Trust is distinct from and 97 cumulative to all other rights or remedies under the Agreement and this Deed of Trust or afforded by law or equity, and 98 may be exercised concurrently, independently or successively. 99 100 15. Successors and Assigns Bound; Joint and Several Liability; Captions. The covenants and agreements 101 herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of Beneficiary 102 and Grantor, subject to the provisions of paragraph 24 (Transfer of the Property; Assumption). The captions and 103 headings of the paragraphs in this Deed of Trust are for convenience only and are not to be used to interpret or define the 104 provisions hereof. 105 106 16. Notice. Except for any notice required by law to be given in another manner, (a) any notice to Grantor 107 provided for in this Deed of Trust shall be in writing and shall be given and be effective upon (1) delivery to Grantor or 108 (2) mailing such notice by first class U.S. mail, addressed to Grantor at Grantor's address stated herein or at such other 109 address as Grantor may designate by notice to Beneficiary as provided herein, and (b) any notice to Beneficiary shall be 110 in writing and shall be given and be effective upon (1) delivery to Beneficiary or (2) mailing such notice by first class 111 U.S. mail, to Beneficiary's address stated herein or to such other address as Beneficiary may designate by notice to 112 Grantor as provided herein. Any notice provided for in this Deed of Trust shall be deemed to have been given to Grantor - 1'13 - or Beneficiary when given in any manner designated herein. 114 115 17. Governing Law; Severability. The Agreement and this Deed of Trust shall be governed by the law of 116 Colorado. In the event that any provision or clause of this Deed of Trust or the Agreement conflicts with the law, such 117 conflict shall not affect other provisions of this Deed of Trust or the Agreement which can be given effect without the 118 conflicting provision, and to this end the provisions of the Deed of Trust and Agreement are declared to be severable. 119 120 18. Acceleration; Foreclosure; Other Remedies. Except as provided in paragraph 24 (Transfer of the 121 Property; Assumption), upon Grantor's breach of any covenant or agreement of Grantor in the Agreement, or in this 122 Deed of Trust (unless Grantor has exercised Grantor's rights under paragraph 6 above), at Beneficiary's option, 123 Beneficiary may invoke the power of sale and any other remedies permitted by law. Beneficiary shall be entitled to 124 collect all reasonable costs and expenses incurred in pursuing the remedies provided in this Deed of Trust, including, but 125 not limited to, reasonable attorney's fees. 126 If Beneficiary invokes the power of sale, Beneficiary shall give written notice to Trustee of such election. Trustee 127 shall give such notice to Grantor of Grantor's rights as is provided by law. Trustee shall record a copy of such notice as 128 required by law. Trustee shall advertise the time and place of the sale of the Property, for not less than four weeks in a 129 newspaper of general circulation in each county in which the Property is situated, and shall mail copies of such notice of 130 sale to Grantor and other persons as prescribed by law. After the lapse of such time as may be required by law, Trustee, 131 without demand on Grantor, shall sell the Property at public auction to the highest bidder for cash at the time and place 132 (which may be on the Property or any part thereof as permitted by law) in one or more parcels as Trustee may think best 133 and in such order as Trustee may determine. Beneficiary or Beneficiary's designee may purchase the Property at any 134 sale. It shall not be obligatory upon the purchaser at any such sale to see to the application of the purchase. money.. 135 - - Trustee apply the proceeds of the sale in the following order: (a) to all reasonable costs and expenses of the 136 sale, including, but not limited to reasonable Trustee's and attorney's fees and costs of title evidence; (b) to all sums '137 ' secured by this Deed of Trust; and (c) the excess, if any, to the person or persons legally entitled thereto. 138 139 19. Grantor's Right to Cure Default. Whenever foreclosure is commenced for nonpayment of any sums due 140 hereunder, the owners of the Property or parties liable hereon shall be entitled to cure said defaults by paying all 141 delinquent principal and interest payments due as of the date of cure, costs, expenses, late charges, attorney's fees and 142 other fees all in the manner provided by law. Upon such payment, this Deed of Trust and the obligations secured hereby 143 shall remain in full force and effect, and the foreclosure proceedings shall be discontinued. 144 Page2of3 • Initi 2035312.1 1937763 TD 03/22/2013 10:03:26 AM Page: 3 of 3 R 21.00 D 0.00 T 21.00 AO: .> Gilbert Ortiz Clerk /Recorder, Pueblo County, Co ° 1it 111.1VICWIRVAI, fin 10,111F1Piliiii 11111 145 20. Assignment of Rents; Appointment of Receiver; Beneficiary in Possession. As additional security 146 hereunder, Grantor hereby assigns to Beneficiary the rents of the Property; however, Grantor shall, prior to Grantor's 147 breach of any covenant or agreement of Grantor in the Agreement, or in this Deed of Trust, or abandonment of the 148 Property, have the right to collect and retain such rents as they become due and payable. 149 Beneficiary or the holder of the Trustee's certificate of purchase shall be entitled to a receiver for the Property 150 upon breach by Grantor, and shall also be so entitled during the time covered by foreclosure proceedings and the period 151 of redemption, if any; and shall be entitled thereto as a matter of right without regard to the solvency or insolvency of 152 Grantor or of the then owner of the Property, and without regard to the value thereof. Such receiver may be appointed by 153 any Court of competent jurisdiction upon ex parte application and without notice; notice being hereby expressly waived. 154 Upon abandonment of the Property, Beneficiary, in person, by agent or by judicially- appointed receiver, shall be 155 entitled to enter upon, take possession of and manage the Property and to collect the rents of the Property including those 156 past due. All rents collected by Beneficiary or the receiver shall be applied, first to payment of the costs of preservation 157 and management of the Property, second to payments due upon prior liens, and then to the sums secured by this Deed of 158 Trust. Beneficiary and the receiver shall be liable to account only for those rents actually received. 159 160 21. Release. Upon satisfaction of the obligations of Grantor under the Agreement, Beneficiary shall cause 161 Trustee to release this Deed of Trust. Grantor shall pay all costs of recordation and shall pay the statutory Trustee's fees. 162 163 22. Waiver of Exemptions. Grantor hereby waives all right of homestead and any other exemption in the 164 Property under state or federal law presently existing or hereafter enacted. 165 166 23. Escrow Funds for Taxes and Insurance. INTENTIONALLY DELETED. 167 168 24. Transfer of the Property; Assumption. The following events shall be referred to herein as a "Transfer" if 169 they occur without the prior written consent of Beneficiary: (i) a transfer or conveyance of title (or any portion thereof, 170 legal or equitable) of the Property (or any part thereof or interest therein), (ii) the execution of a contract or agreement 171 creating a right to title (or any portion thereof, legal or equitable) in the Property (or any part thereof or interest therein), 172 (iii) the reorganization, liquidation or dissolution of Grantor. Not to be included as a Transfer is the creation of a lien or 173 encumbrance subordinate to this Deed of Trust. At the election of Beneficiary, in the event of each and every Transfer: 174 (a) Grantor shall have breached this Deed of Trust and, at Beneficiary's option, Beneficiary may invoke the 175 power of sale and any other remedies permitted by law. 176 (b) If a Transfer occurs and should Beneficiary not exercise Beneficiary's option pursuant to this paragraph 177 24 to foreclose, Transferee shall be deemed to have assumed all of the obligations of Grantor under this Deed of Trust 178 including all sums secured hereby whether or not the instrument evidencing such conveyance, contract or grant expressly 179 so provides. This covenant shall run with the Property and remain in full force and effect until the obligations of Grantor 180 under the Agreement have been satisfied. 181 (c) Should Beneficiary not elect to foreclose upon the occurrence of such Transfer then, subject to (b) 182 above, the mere fact of a lapse of time or the acceptance of payment subsequent to any of such events, whether or not - 183 ' Beneficiary had actual or constructive notice of such Transfer, shall not be deemed a waiver of Beneficiary's right to 184 make such election nor shall Beneficiary be estopped therefrom by virtue thereof. 185 186 EXECUTED BY GRANTOR 187 188 PUEBLO DEVELOPMENT FOUNDATION 189 190 191 By: 192 President 193 194 ATTEST: 195 196 • j 4 4,0._ 197 Secr-tary 198 199 STATE OF S ORADO 200 201 County of Pueblo }ss. 202 .&e 203 The foregoing instrument was acknowledged before me this/ ' day of / 4V e! 6/ , 2013, by 204 Robert Root as President of Pueblo Development Foundation, a Colorado nonprofit corporation. _ 205 Y:_ - -- — - - -- _ . .206 iTh r s' � and and official seal. -7 rtI H11'' Icy o 11.2 '�J go '3My 101 tong .ires: / / / ' 2 S u , .04 1 Ft 1j b- � 4 y Mfr / 41„ f , Not. • � .lic y !'p1i1 Page 3 of 3 Initia 2035312.1