HomeMy WebLinkAbout13130RESOLUTION NO. 13130
A RESOLUTION APPROVING A THIRD AMENDMENT TO
EMPLOYMENT AGREEMENT BETWEEN PUEBLO, A
MUNICIPAL CORPORATION AND ROCLA CONCRETE
TIE, INC. RELATING TO A JOB CREATING CAPITAL
IMPROVEMENT PROJECT, AND IN CONNECTION
THEREWITH, DESIGNATING PUEBLO MUNICIPAL RAIL
CORPORATION AS AN AGENCY AND
INSTRUMENTALITY OF THE CITY OF PUEBLO TO
CONSTRUCT, OWN AND OPERATE CERTAIN RAIL
TRACK AND FACILITIES AND APPROVING AN
AGREEMENT BETWEEN PUEBLO, A MUNICIPAL
CORPORATION AND THE PUEBLO MUNICIPAL RAIL
CORPORATION AND AUTHORIZING THE PRESIDENT OF
CITY COUNCIL TO EXECUTE SAID AGREEMENTS AND
TRANSFERRING $600,000 FROM THE 1992-2016 SALES
AND USE TAX CAPITAL IMPROVEMENT PROJECTS
FUND
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The City Council finds and determines that the expenditure of $600,000 for the
job creating capital improvement project with Rocla Concrete Tie, Inc., described in the
attached Third Amendment to Employment Agreement, meets and complies with the
criteria and standards established by Ordinance No. 7836 and will create employment
opportunities justifying the expenditure of public funds.
SECTION 2.
The Third Amendment to Employment Agreement dated as of December 8, 2014
between Pueblo, a municipal corporation and Rocla Concrete Tie, Inc., a Texas
corporation relating to a job creating capital improvement project, a copy of which is
attached hereto (“Third Amended Agreement”), having been approved as to form by the
City Attorney, is hereby approved. The President of City Council is authorized to
execute and deliver the Third Amended 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 3.
The agreement between Pueblo, a municipal corporation and Pueblo Municipal
Rail Corporation, a Colorado non-profit corporation, in substantially the form attached
hereto (the “Rail 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 Rail 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 4.
Funds in the aggregate amount of $600,000 are hereby authorized to be
transferred, expended and made available out of the 1992-2016 Sales and Use Tax
Capital Improvement Projects Fund for the sole purpose of the job creating capital
improvement project authorized herein and in the manner described in the Agreement
and Rail Agreement. The funds 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 $600,000 shall be paid to the Pueblo Municipal Rail
Corporation pursuant to and in accordance with the terms of the Rail Agreement.
SECTION 5.
The officers and staff of the City are directed and authorized to perform any and
all acts consistent with the intent of this Resolution and the attached Third Amended
Agreement and Rail Agreement which are necessary or appropriate to effectuate the
transactions described therein.
SECTION 6.
This Resolution shall become effective immediately upon final passage.
INTRODUCED: December 8, 2014
BY: Dennis Flores
City Clerk’s Office Item # Q-1
Background Paper for Proposed Resolution
COUNCIL MEETING DATE: December 8, 2014
TO: President Stephen G. Nawrocki and Members of City Council
CC: Sam Azad, City Manager
VIA: Gina Dutcher, City Clerk
FROM: Daniel C. Kogovsek, City Attorney
SUBJECT: A RESOLUTION APPROVING A THIRD AMENDMENT TO EMPLOYMENT
AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND
ROCLA CONCRETE TIE, INC. RELATING TO A JOB CREATING CAPITAL
IMPROVEMENT PROJECT, AND IN CONNECTION THEREWITH,
DESIGNATING PUEBLO MUNICIPAL RAIL CORPORATION AS AN AGENCY
AND INSTRUMENTALITY OF THE CITY OF PUEBLO TO CONSTRUCT, OWN
AND OPERATE CERTAIN RAIL TRACK AND FACILITIES AND APPROVING
AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND
THE PUEBLO MUNICIPAL RAIL CORPORATION AND AUTHORIZING THE
PRESIDENT OF CITY COUNCIL TO EXECUTE SAID AGREEMENTS AND
TRANSFERRING $600,000 FROM THE 1992-2016 SALES AND USE TAX
CAPITAL IMPROVEMENT PROJECTS FUND
SUMMARY:
Attached is a Resolution which authorizes the expenditure of $600,000 from the half-cent sales
tax fund to construct a second spur track near the manufacturing facility of Rocla Concrete Tie,
Inc. (“Rocla”). The attached Resolution further approves two agreements, as follows: first, a
Third Amendment to Employment Agreement between Rocla and the City; and second, an
agreement between the City and the Pueblo Municipal Rail Corporation.
PREVIOUS COUNCIL ACTION:
On April 9, 2012, the City Council approved a Resolution which authorized the construction of
the first rail spur for the benefit of Rocla.
BACKGROUND:
Rocla is a Texas corporation which relocated its concrete railroad tie manufacturing facility from
the Denver metropolitan area to the City in 2012. In 2012, the City advanced economic
incentives of $2.3 million which were used to construct railroad lead track and switches which
were made available to Rocla and other companies on a non-exclusive basis.
The volume of Rocla’s manufacturing business is such that a second railroad spur track has
become necessary. As with the initial railroad spur, the second spur and switches will be made
available to Rocla and to other companies on a non-exclusive basis.
FINANCIAL IMPLICATIONS:
The expenditure of $600,000 from the City’s Half-Cent Sales Tax Fund.
BOARD/COMMISSION RECOMMENDATION:
Not applicable.
STAKEHOLDER PROCESS:
Not applicable.
ALTERNATIVES:
Failure to approve this Resolution will result in ROCLA continuing to operate its manufacturing
facility with only one rail spur connection.
RECOMMENDATION:
The Pueblo Economic Development Corporation recommends approval of this Resolution.
Attachments:
Agreement, Rail Agreement, Promissory Note and Deed of Trust
THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
THIS THIRD AMENDMENT TO EMPLOYMENT AGREEMENT ("Third
Amendment") entered into this 8th day of December, 2014 between Pueblo, a municipal
corporation (the "City") and Rocla Concrete Tie, Inc., a Texas corporation (the "Company").
WHEREAS, Company and City entered into an original Employment Agreement
("Original Employment Agreement") dated April 9, 2012 which provided, inter alia, for the
construction and installation of a Railroad Lead Track and associated facilities adjacent to the
manufacturing plant owned by Company; and
WHEREAS, Company and City entered into an amendment to the Original Employment
Agreement on February 25, 2013 ("First Amendment to the Original Employment Agreement")
which, inter alia, increased the economic incentives from the City to the Company and extended
the term of the Company's employment commitment; and
WHEREAS, Company and City entered into a second amendment to the Original
Employment Agreement on September 23, 2013 ("Second Amendment to the Original
Employment Agreement") which, inter alia, increased the economic incentives from the City to
the Company and increased the Company's employment commitment by an additional fifty (50)
employees; and
WHEREAS, Company intends to continue to operate its manufacturing facility within the
City through, at least, March 31, 2023; and
WHEREAS, Company has requested that the City advance funds for the construction and
installation of an additional railroad lead track ("Second Railroad Lead Track") and associated
facilities which are adjacent to the existing Railroad Lead Track and which will be capable of
allowing non-exclusive rail service for Company's manufacturing facility.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, City and Company agree as follows:
1. The following terms as used in this Agreement shall have the following meaning
unless the context clearly indicates otherwise:
"Second Railroad Lead Track" means the railroad track which City shall cause to be
constructed and which will be owned by City or its designee from its northerly connection with
existing BNSF Railway mainline railroad track to its southerly connection with said mainline, to
serve the Site and in an alignment and location determined by City with the approval of
Company; and further provided, that the portions of the Second Railroad Lead Track located
between each Clearance Point upon the Second Railroad Lead Track and its connection to the
mainline may be owned by the BNSF Railway.
"Site" means the property at the south end of Pueblo located north of Lime Road and east
of Interstate 25 upon which the Company's manufacturing facility is located.
"Track Agreements" means all of the usual and customary agreements required in
connection with industrial track projects and use of the Second Railroad Lead Track and
connections thereto, including but not limited to Joint Use of Track Agreements, Industry Track
Agreements, track maintenance agreements and similar instruments.
2. (a) City will spend up to $600,000 for the construction of the Second Railroad
Lead Track and will cause same to be constructed and installed in accordance with plans and
specifications approved by the City. Subject to Company's execution of the usual and customary
Track Agreements, the Second Railroad Lead Track will be completed and available for
Company's reasonable and nonexclusive use by June 30, 2015 provided, however, that if by
reason of war, acts of God, casualties, storms, labor strikes or other labor difficulties, shortage or
inability to obtain materials or equipment, inability to obtain necessary easements or road
crossing permits, governmental approvals or restrictions, BNSF Railway requirements and
approvals, Union Pacific Railroad requirements and approvals, contractor delay, or other causes
beyond City's reasonable control, City is prevented from complying with this section, then,
while so prevented, the requirements of this section shall be suspended and City's obligations
under this section shall be extended for so long as it is so prevented from complying with this
section. Upon completion, Company will be granted the non-exclusive right to use the Second
Railroad Lead Track without payment of access charges to City. After its completion, use of the
Second Railroad Lead Track by Company is on an "AS IS" and "WITH ALL FAULTS" basis,
and neither City nor its designee shall have any continuing responsibility to repair or maintain it.
Company shall maintain and keep the portions of the Second Railroad Lead Track which it uses
in good working condition and repair, and in good, clean and safe condition; provided however,
that it will not be responsible for maintenance within the BNSF Railway right of way. Company
shall indemnify, defend and hold City, its officers, employees and agents harmless from and
against any and all claims of liability for any injury or damage to any person or property
resulting from or arising out of the condition of the Second Railroad Lead Track (i) located
within the Rail and Utility Corridor adjacent to the Site, (ii) located upon the Site or (iii) the use
of any portion of the Second Railroad Lead Track by Company or its officers, employees, agents
or contractors.
(b) City may reconvey the Rail and Utility Corridor to third parties or grant
easements therein, in City's sole and absolute discretion, but subject to Company's rights under
this Agreement and the Track Agreements.
(c) If the cost for the construction of the Second Railroad Lead Track exceeds
the $600,000 financial commitment hereby made by the City, Company agrees to pay such
additional sums as will be necessary to cause the Second Railroad Lead Track to be constructed
and installed in accordance with plans and specifications approved by the City.
3. All prior Agreements between the Parties shall remain in full force and effect,
except, as amended, as follows:
a. Section 4 of the Original Employment Agreement and Section 1 of
the First Amendment to the Original Employment Agreement and Section
2 of the Second Amendment to the Original Employment Agreement are
hereby deleted and replaced with the following:
City and Company stipulate and agree that the total economic incentives
provided by City for the benefit of Company under this Agreement is $3.062,621, computed
as follows:
Item Amount
Railroad Lead Track $1,662,621
Second Railroad lead Track 600.000
Lime Road Improvements 100,000
Manufacturing Equipment 700,000
Total $3,062,621
(the "Total Economic Incentives").
b. Section 6(a) of the Original Employment Agreement and Section 2
of the First Amendment to Original Employment Agreement and Section 4
of the Second Amendment to Original Employment Agreement are hereby
deleted and replaced with the following:
Notwithstanding anything contained in this Agreement to the contrary, if
Company shall fail to meet the Employment Commitment, Company shall pay to City
compensating amounts calculated as follows:
(a) During the nine (9) year period starting on the Employment
Commitment Date (April 1, 2014) and ending one hundred eight (108) months thereafter
(March 31 , 2 0 2 3) (the "Commitment Period") Company shall pay to City a compensating
amount for each Quarter in the Commitment Period calculated by subtracting the number of
Quarterly Employees from the commitment of one hundred fifty (150) Full-Time Employees
and then multiplying the result by $567.15. For example, if for the second Quarter of the
third year after the Employment Commitment Date the number of Quarterly Employees is
141 the amount payable by Company to City on or before the fifteenth (15th) day of the next
calendar month would be(150 - 141) x $567.15 = $5,104.35.
(b) Except as specifically modified by this Third Amendment to
Employment Agreement, the Original Employment Agreement a n d the F i r s t
Amendment to Employment Agreement, and the S e c o n d Amendment to Employment
Agreement, shall not be amended or modified hereby. As modified by this Third
Amendment, the Original Employment Agreement and the F i r s t Amendment to
Employment Agreement, and the Second Amendment to Employment Agreement, shall
continue in full force and effect.
4. This Agreement may not be amended or modified except in writing signed by City
and Company. Any waiver of any provision of this Agreement must be in writing and signed by
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the party whose rights are being waived. No waiver of any breach of any provision hereof shall
be or be deemed to be a waiver of any preceding or subsequent breach of the same or any other
provision of this Agreement. The failure of either party to enforce or seek enforcement of the
terms of this Agreement following any breach shall not be construed as a waiver of such breach.
5. This Agreement shall be construed in accordance with and be governed by the
laws of the State of Colorado without regard to conflict of law principles.
6. Any notices hereunder shall be sufficiently given if given in writing personally or
mailed by first class, registered, or certified mail, postage prepaid, addressed:
(a) if to City, City Manager, City of Pueblo, 200 South Main Street, Pueblo,
Colorado, 81003, or
(b) if to the Company, Rocla Concrete Tie, Inc., 701 West 48th Avenue,
Denver, Colorado, Attention: Peter Urquhart, President, or to such other person or address as
either party shall specify in written notice given to the other party pursuant to the provisions of
this section 11.
7. Time is of the essence hereof. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors and assigns, provided Company may not
assign this Agreement or any interest herein without the express written consent of City, which
consent shall not be unreasonably withheld. Any assignment or attempted assignment of this
Agreement by Company without such consent shall be null and void. No such assignment nor
City's consent thereto shall release or discharge Company from any obligation or liability under
this Agreement.
8. 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 legally binding
obligation of Company enforceable against Company in accordance with its terms.
9. 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. 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, and/or to seek such other remedies legally available to
City, which remedies shall be cumulative.
10. 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
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a • •
into this Agreement, Company hereby waives and discharges City, its officers, agents and
employees from 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, discharge or release of
Company's obligations. Notwithstanding the foregoing, City acknowledges that if City defaults
in any material covenant of this Agreement, Company will suffer injury which cannot be
adequately remedied by an action at law for monetary damages and in such event Company shall
have the right, without the showing of any special damages or posting of bond, to seek and be
granted specific enforcement thereof, but not damages of any type or nature.
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. Neither party shall be, or hold itself out as, agent of the other or as joint venturers
under this Agreement.
13. Each party acknowledges that this Agreement was fully negotiated by the parties
and, therefore, no provision of this Agreement shall be interpreted against any party because
such party or its legal representative drafted such provision.
14. The provisions of this Agreement are for the exclusive benefit of the parties
hereto and their successors and permitted assigns, and no third party shall be a beneficiary, or
have any rights by virtue of this Agreement.
15. This Agreement may be executed in any number of counterparts, and each such
counterpart shall be deemed for all purposes to be an original, and all such counterparts shall
together constitute but one and the same Agreement.
Executed at Pueblo, Colorado, the day and year first above written.
[ SEAL ] Pueblo, a '-'::moo .oratio
Attest: ►�r�.—_.:_
City rk President of the City Council
[ SEAL ] ROCLA CONCRETE TIE,INC.,
a Texas corporation
Attest: By
Name: Peter Urquhart
Title: President
5
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. ,. , ...• 70 (,/ ,k ,
Attest: i /)
-:-j,:•' ' i %, By -
Name:....LCAv L(4 thCil lkirri S Peter Urquhart
Title: rti'l(itin4./L'i:C:kikcii ' 4+ President
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insurance, flagging and safety and compliance with rail requirements.
3. Conditions to Advancement of City Funds. City Funds will be advanced and
paid for the purposes set forth in paragraph 2 hereof, subject to and contingent upon the
following conditions and covenants which Corporation agrees to meet and comply with:
(a) All contracts, except those to be performed by BNSF Railway, for the
construction of the Second Railroad Lead Track and associated switches shall be awarded after
competitive proposals which allow qualified local contractors to participate in the competitive
proposal procedures.
(b) As a condition precedent to the disbursement of City Funds, Corporation
shall file with the City's Director of Finance written requests for payment certified to be true and
correct by an officer of Corporation 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 items generally described in paragraph 2, identifying the cost incurred and purpose thereof,
including closing statements for the purchase of real estate; certificates of the architect or
contractor that the work for which payment is sought has been completed and, if the request is
for payment of A&E Fees, identifying the services performed, including invoices therefor. City
may make payments on behalf of Corporation as disburser.
(c) City Funds will not be disbursed or made available to Corporation under
this Agreement until after(i) Corporation has acquired marketable fee simple title to the Land;
(ii) Rocla and City have entered into an agreement which has been approved by Resolution of the
City Council (the "Second Amendment to Employment Agreement"), and Corporation has
executed and delivered to City the Promissory Note and Deed of Trust described in(d) below.
(d) The entire amount of City Funds to be advanced by City to Corporation
hereunder shall be and constitute a debt of Corporation to City and evidenced by Corporation's
promissory note ("Promissory Note"). The Promissory Note and Corporation's obligations
thereunder shall be secured by a first deed of trust or mortgage lien upon the Land superior to all
other liens and claims, and shall be approved by the City Attorney of City as to both form and
content. The Promissory Note and Deed of Trust shall provide that Corporation's obligation in
respect to the indebtedness secured thereby shall be limited solely to the value of the Land and
improvements encumbered thereby, without right to any deficiency claim or judgment against
Corporation.
(e) Corporation shall cause the Second Railroad Lead Track and associated
facilities to be constructed in accordance with plans and specifications approved by the City, and
it shall undertake and perform all obligations of the City under the Second Lead Track
Agreement between City and Rocla. Corporation shall enter into all Track Agreements with
BNSF Railway necessary for the connection and use of the Second Railroad Lead Track, as well
as any Track Agreements with Rocla which are necessary or desirable to enable Rocla to enjoy
non-exclusive reasonable use of the Second Railroad Lead Track.
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(f) Corporation shall manage, maintain and control the use of the Second
Railroad Lead Track, and is hereby authorized to enter into additional Track Agreements with
other users and to charge all users thereof use and maintenance fees to cover the cost of
operation, maintenance and repair of the Second Railroad Lead Track.
4. Inalienability of Land. Corporation will not voluntarily or involuntarily
mortgage, encumber, lease or sublease, or extend or renew any lease or sublease, assign, sell or
otherwise transfer the Land or improvements thereon, or any part thereof, without the prior
written consent of the City Council of City. Any such mortgage, encumbrance, lease or sublease
or renewal or extension, assignment, sale or other transfer without the prior written consent of
the City Council of City shall be void and unenforceable. The City Council of City does hereby
consent to Corporation entering into Track Agreements for use of the Second Railroad Lead
Track. Upon City's request to Corporation, Corporation will convey marketable fee simple title
to the Land and improvements to City, or such person or entity as City may designate, by special
warranty deed free of all liens and encumbrances, except the Deed of Trust, general taxes for the
year in which such conveyance takes place, and liens and encumbrances created or caused by the
acts or defaults of City. The covenants of this paragraph shall be and shall be construed to be
covenants running with the land, and Corporation shall at the request of City execute and record
an instrument to that effect in form and substance approved by the City Attorney.
5. Events of Default. The following shall be "events of default" under this
Agreement and the term "event of default" and "default" shall mean any one or more of the
following events: Failure of Corporation to observe and perform any covenant, condition or
agreement on its part to be observed or performed under this Agreement, Promissory Note, Deed
of Trust, or a Track Agreement for a period of sixty (60) days after written notice specifying
such failure and requesting that it be remedied is given to Corporation by City; provided,
however, that if the failure stated in the notice cannot be corrected within the sixty day period
and corrective action is instituted by Corporation within the sixty day period and diligently
pursued until the failure is corrected, no event of default shall have happened.
6. Remedies on Default. Whenever any event of default shall have happened and be
continuing, City shall have the right, at its option, without any further notice or demand, to take
whatever action at law or in equity may appear necessary or desirable to enforce its rights and
Corporation's obligations hereunder, including without limitation, foreclosure of the Deed of
Trust. No remedy herein conferred or reserved to City is intended to be exclusive and every such
remedy shall be cumulative and shall be in addition to every other remedy given under this
Agreement and the Deed of Trust or now or hereafter existing at law or in equity. No delay or
omission to exercise any right or power occurring upon any default shall impair any such right or
power or shall be construed to be a waiver thereof, but any such right or power may be exercised
from time to time and as often as may be deemed expedient.
7. Prior Agreements. All prior Agreements between the Parties shall remain in full
force and effect.
8. Applicable Law. This Agreement shall be construed in accordance with and
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governed by the laws of the State of Colorado, without regard to conflict of laws principles.
9. Notices. Any notices hereunder shall be sufficiently given if given personally or
mailed by certified mail, postage prepaid, addressed:
(a) if to City: City Manager, City of Pueblo, 200 S. Main Street, Pueblo,
Colorado, 81003, with a copy to City Attorney, 1 City Hall Place, Third Floor, Pueblo, Colorado,
81003, or
(b) if to the Corporation: Pueblo Municipal Rail Corporation, 200 S. Main
Street, Pueblo, Colorado, 81003, Attention: President, or to such other address as either party
shall specify in written notice given to the other party.
10. Representations of Corporation.
(a) The persons signing this Agreement, Promissory Note and Deed of Trust
in the name of and on behalf of Corporation represent and warrant that they and Corporation
have the requisite power and authority to enter into, execute, and deliver this Agreement,
Promissory Note and Deed of Trust, and that this Agreement, Promissory Note and Deed of
Trust are valid and legally binding obligations of Corporation enforceable against Corporation in
accordance with their terms.
(b) Corporation 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 by City or City's advancement of City Funds to Corporation
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.
11. City's Liability. In no event shall City, its officers, agents or employees be liable
to Corporation 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, Corporation hereby waives and discharges City, its officers,
agents and employees from any and all claims for any and all such damages. City shall not be
liable for the acts of Corporation, nor for any liability whatsoever arising under any Track
Agreement entered into by Corporation.
12. Severability. 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.
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13. No Third Party Beneficiary. The provisions of this Agreement are and will be for
the benefit of City and Corporation 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.
14. Binding Effect. Time is of the essence hereof. This Agreement shall be binding
up and inure to the benefit of the City and Corporation and their respective successors.
Corporation may not assign this Agreement nor any of its rights hereunder.
15. Execution in Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
Executed at Pueblo, Colorado, the day and year first above written.
PUEBLO, A MUNICIPAL CORPORATION PUEBLO MUNICIPAL RAIL
CORPORATION
By . 'm. .. c• By
Presi•- • the City Council President
Attest:
Attest:
City Clerk Secretary
Approved as to form:
• •17- 070114 --C.I.C_
City Attorney
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Official Records of Pueblo County Clerk& Recorder 1995361
01/29/2015 01:56:32 PM Page 1 of 4
Deed Of Trust R: $26.00 D: $0.00 Gilbert Ortiz
DEED OF TRUST
THIS INDENTURE (the "Deed of Trust")is made this 23rd day of January, 2015,
by and between Pueblo Municipal Rail Corporation, a Colorado nonprofit corporation,
whose address is 200 S. Main Street, Pueblo, CO, CO 81003 (hereinafter referred to as
"Borrower") and the Public Trustee of Pueblo County, State of Colorado (hereinafter
referred to as 'Trustee"), for the benefit of Pueblo, a Colorado municipal corporation
("Lender").
WITNESSETH:
WHEREAS, Borrower has executed a Promissory Note payable to Lender, dated
December 8, 2014 for a principal sum in the amount of Six Hundred Thousand Dollars
($600,000)("Payment Obligation'); and
WHEREAS, Borrower desires to secure the prompt payment of the aforesaid
Payment Obligation;
NOW, THEREFORE, in consideration of Six Hundred Thousand Dollars
($600,000) and other good and valuable consideration and for the purpose aforesaid,
Borrower hereby grants, bargains, sells and conveys unto Trustee in trust the real
property located in the City of Pueblo, Pueblo County, Colorado, described in Exhibit A
attached hereto and incorporated by reference herein, and all of Borrower's right, title
and interest therein.
This Deed of Trust includes, and Borrower hereby grants, bargains, sells and
conveys unto Trustee in trust, all buildings, structures and improvements now or
hereafter placed thereon, all fixtures now or hereafter attached thereto and all the rights
(ineluding water rights), permits, hereditaments and appurtenances thereto belonging or
in any way appertaining, together with any after acquired property interest in the above
described property and real estate which Borrower may at any time hereafter have or
acquire, and also all of the rents, issues, uses, profits and income of the above
described personal property and real estate from now until the Payment Obligation
secured hereby is paid in full. All the above described property is herein referred to as
the "Mortgaged Property".
Trustee shall have and hold the Mortgaged Property, together with all the
privileges and appurtenances thereunto belonging: In trust nevertheless, in case of
default by Borrower hereunder, then upon notice and demand in writing filed with the
Trustee as provided by law,it shall and may be lawful for Trustee to foreclose this Deed
of Trust, and to sell and dispose of the Mortgaged Property (or any part thereof as may
be designated in the notice of such sale) and all the right, title and interest of Borrower
therein, in the manner as may then be provided by law, and to issue, execute and
-1-
3S0338'59 tt-
DEED OF TRUST
THIS INDENTURE (the "Deed of Trust") is made this 23rd day of January, 2015,
by and between Pueblo Municipal Rail Corporation, a Colorado nonprofit corporation,
whose address is 200 S. Main Street, Pueblo, CO, CO 81003 (hereinafter referred to as
"Borrower") and the Public Trustee of Pueblo County, State of Colorado (hereinafter
referred to as "Trustee"), for the benefit of Pueblo, a Colorado municipal corporation
("Lender").
WITNES SETH:
WHEREAS, Borrower has executed a Promissory Note payable to Lender, dated
December 8, 2014 for a principal sum in the amount of Six Hundred Thousand Dollars
($600,000) ("Payment Obligation"); and
WHEREAS, Borrower desires to secure the prompt payment of the aforesaid
Payment Obligation;
NOW, THEREFORE, in consideration of Six Hundred Thousand Dollars
($600,000) and other good and valuable consideration and for the purpose aforesaid,
Borrower hereby grants, bargains, sells and conveys unto Trustee in trust the real
property located in the City of Pueblo, Pueblo County, Colorado, described in Exhibit A
attached hereto and incorporated by reference herein, and all of Borrower's right, title
and interest therein.
This Deed of Trust includes, and Borrower hereby grants, bargains, sells and
conveys unto Trustee in trust, all buildings, structures and improvements now or
hereafter placed thereon, all fixtures now or hereafter attached thereto and all the rights
(including water rights), permits, hereditaments and appurtenances thereto belonging or
in any way appertaining, together with any after acquired property interest in the above
described property and real estate which Borrower may at any time hereafter have or
acquire, and also all of the rents, issues, uses, profits and income of the above
described personal property and real estate from now until the Payment Obligation
secured hereby is paid in full. All the above described property is herein referred to as
the "Mortgaged Property".
Trustee shall have and hold the Mortgaged Property, together with all the
privileges and appurtenances thereunto belonging: In trust nevertheless, in case of
default by Borrower hereunder, then upon notice and demand in writing filed with the
Trustee as provided by law, it shall and may be lawful for Trustee to foreclose this Deed
of Trust, and to sell and dispose of the Mortgaged Property (or any part thereof as may
be designated in the notice of such sale) and all the right, title and interest of Borrower
therein, in the manner as may then be provided by law, and to issue, execute and
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deliver a certificate of purchase, trustee's deed or certificate of redemption all as then
may be provided by law. Trustee shall, out of the proceeds or avails of such sale, after
first paying and retaining all fees, charges, the costs of making said sale and advertising
the Mortgaged Property, and attorney's fees as herein provided, pay to Lender the
amount of such proceeds to be applied against the Payment Obligation, and all moneys
advanced by Lender for any purpose authorized herein or by law, with interest thereon
at the Applicable Interest Rate as set forth in the Promissory Note, rendering the over
plus, if any, as provided by applicable law. The sale or sales and said deed or deeds so
made shall be a perpetual bar, both in law and equity, against Borrower and all other
persons claiming the Mortgaged Property or any part thereof by, from, through, over or
under Borrower. The legal holder of the indebtedness may purchase the Mortgaged
Property or any part thereof and it shall not be obligatory upon the purchaser or
purchasers at any such sale to see to the application of the purchase money. If a
release deed is required, Borrower hereby agrees to pay all the expenses thereof.
Borrower hereby,warrants title to the Mortgaged Property, subject to taxes not
yet due and payable.
Borrower hereby further covenants, acknowledges and agrees to perform the
Payment Obligation.
Borrower agrees to and shall promptly pay all costs, charges and expenses
incurred by Lender, including reasonable attorneys' fees arising out of or in connection
with any action, proceeding or hearing, in any way affecting or relating to the Mortgaged
Property and the above described Promissory Note.
Upon the occurrence of default in the timely performance of Borrower's Payment
Obligations, the outstanding amount of the indebtedness secured hereby and the
interest thereon may at once, at the option of Lender, be declared immediately due and
payable, and the Mortgaged Property may be sold in the manner and with the same
effect as if the indebtedness had matured and remained unpaid after maturity. If
foreclosure is made by Trustee, a reasonable attorney's fee for services in the
supervision of such foreclosure proceedings shall be allowed and added by Trustee as
a part of the cost of foreclosure. If foreclosure be by action in court, reasonable
attorneys' fees shall be taxed by the court as part of the cost of such foreclosure
proceedings. All such reasonable attorneys' fees as well as the costs, charges and
expenses, shall be and become a part of the indebtedness secured hereby.
If the Mortgaged Property, or any part thereof, is sold (whether by land contract
or otherwise), conveyed or transferred, the outstanding indebtedness secured hereby
shall become immediately due and payable, at Lender's option, unless written consent
for such sale, conveyance or transfer has been obtained from Lender.
Time is of the essence hereof.
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This Deed of Trust shall be interpreted, construed and enforced according to
the laws of the State of Colorado.
IN WITNESS WHEREOF, Borrower has executed this Deed of Trust on the day
and year first appearing above.
BORROWER:
PUEBLO MUNICIPAL RAIL CORPORATION
a Colorado nonprofit corporation
By �',rMJ C
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Earl Wilkinson, President
COUNTY OF PUEBLO )
ss.
STATE OF COLORADO )
The foregoing instrument was acknowledged before me in the County of Pueblo,
State of Colorado this 23rd day of January, 2015 by Earl Wilkinson, as President of
Pueblo Rail Corporation, a Colorado nonprofit corporation.
Witness my hand and official seal.
My commission expires: 03 O!, . D
[ SEAL] 1� •� C 70t/42)
DANIEL C:KOGOVSEK —
NOTARYNotary Public
PUBLIC
STATE OF COLORADO
NOTARY ID 20014004.31
MY COMMISSION EXPIRES 02108!3018
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EXHIBIT A
A PARCEL OF LAND LOCATED IN A PORTION OF THE E 1 OF SECTION 36,TOWNSHIP 21 SOUTH,RANGE 65 WEST OF
THE 6TH P.M.IN THE COUNTY OF PUEBLO AND STATE OF COLORADO.
CONSIDERING THE NORTH LINE OF LOT 1,BLOCK 1 IN ST.CHARLES INDUSTRIAL PARK,FILING NO. 1 TO BEAR N.88
DEGREES 25 MINUTES 10 SECONDS W.AND ALL BEARINGS CONTAINED HEREIN BEING RELATIVE THERETO.
BEGINNING AT THE NORTHWEST CORNER OF LOT 1,BLOCK 1 IN ST.CHARLES INDUSTRIAL PARK,FILING NO, 1 AS
FILED FOR RECORD AT RECEPTION NO. 1909383 IN THE PUEBLO COUNTY RECORDS,SAID POINT BEING ON THE
SOUTH LINE OF THE E 1 OF SECTION 36,TOWNSHIP 21 SOUTH,RANGE 65 WEST AND ALSO BEING THE SOUTHEAST
CORNER OF PARCEL A IN SAID ST.CHARLES INDUSTRIAL PARK,FILING NO. 1;THENCE N.03 DEGREES 00 MINUTES
08 SECONDS E,ALONG THE EAST LINE OF SAID PARCEL A AND THE CURRENT CITY LIMITS LINE OF THE CITY OF
PUEBLO,A DISTANCE OF 5495.06 FEET TO THE NORTH LINE OF SAID SECTION 36;THENCE S 89 DEGREES 19 MINUTES
24 SECONDS E.ALONG SAID NORTH LINE OF SECTION 36,A DISTANCE OF 45.04 FEET;THENCE S.03 DEGREES 00
MINUTES 08 SECONDS W.,A DISTANCE OF 5495.77 FEET TO A PONT ON THE SAID NORTH LINE OF LOT I,BLOCK 1 IN
ST.CHARLES INDUSTRIAL PARK,FILING NO.1;THENCE N.88 DEGREES 25 MINUTES 10 SECONDS W.,ALONG SAID
NORTH LINE OF LOT 1,A DISTANCE OF 45.01 FEET TO THE POINT OF BEGINNING.
Form 13773 10/2010 swd.open.rev.odt Special Warranty Deed Open(Photographic) PBC35033852 (20883042}