HomeMy WebLinkAbout13241RESOLUTION NO. 13241
A RESOLUTION APPROVING AN EMPLOYMENT AGREEMENT
AND AN AGREEMENT TO SELL AND PURCHASE REAL
ESTATE BETWEEN PUEBLO, A MUNICIPAL CORPORATION,
AND T. R. TOPPERS, INC., AN IDAHO CORPORATION,
RELATING TO A JOB CREATING CAPITAL IMPROVEMENT
PROJECT, AUTHORIZING THE PRESIDENT OF THE CITY
COUNCIL TO EXECUTE SAID AGREEMENTS AND
TRANSFERRING $260,000 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 the expenditure of $260,000 for the job
creating capital improvement project with T.R. Toppers, Inc. (“Toppers”) described in the
attached Employment Agreement, meets and complies with the criteria and standards
established by Section 14-4-85 of the Pueblo Municipal Code and will create employment
opportunities justifying the expenditure of public funds. The City Council further finds and
determines that it is appropriate for the City to enter into the attached Agreement to Sell and
Purchase real estate.
SECTION 2.
The Employment Agreement dated May 26, 2015 between Pueblo, a Municipal
Corporation and Toppers relating to a job creating capital improvement project, a copy of which
is attached hereto ("Employment Agreement"), having been approved as to form by the City
Attorney, is hereby approved. The Agreement to Sell and Purchase real estate between
Pueblo, a Municipal Corporation and Toppers relating to a job creating capital improvement
project, a copy of which is attached hereto ("Real Estate Agreement"), having been approved as
to form by the City Attorney, is hereby also approved. The President of the City Council is
authorized to execute and deliver the Employment Agreement and the Real Estate 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.
Funds in the aggregate amount of $260,000 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 attached agreements. 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 as follows:
a. $175,000 to the Airport Improvement Fund (“541 fund”) for the sale of Lot 41 of the
Pueblo Memorial Airport Industrial Park subdivision;
b. $85,000 to Toppers for expansion and development costs in the manner described in
the Employment Agreement.
SECTION 4.
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 attached Employment Agreement and Real
Estate Agreement which are necessary or desirable to effectuate the transactions described
therein.
SECTION 5.
This Resolution shall become effective immediately upon final passage.
INTRODUCED: May 26, 2015
BY: John Cordova
City Clerk’s Office Item # M-3
Background Paper for Proposed Resolution
COUNCIL MEETING DATE: May 26, 2015
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 AN EMPLOYMENT AGREEMENT AND AN
AGREEMENT TO SELL AND PURCHASE REAL ESTATE BETWEEN PUEBLO,
A MUNICIPAL CORPORATION, AND T. R. TOPPERS, INC., AN IDAHO
CORPORATION, RELATING TO A JOB CREATING CAPITAL IMPROVEMENT
PROJECT, AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO
EXECUTE SAID AGREEMENTS AND TRANSFERRING $260,000 FROM THE
1992-2016 SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS
FUND THEREFOR
SUMMARY:
Attached is a Resolution approving and authorizing the President of the City Council to sign an
Employment Agreement and Agreement to Sell and Purchase Real Estate with T.R. Toppers,
Inc., an Idaho corporation (“Toppers”).
PREVIOUS COUNCIL ACTION:
None.
BACKGROUND:
Toppers manufactures confectionary toppings and processes and packages branded and non-
branded candies, baked goods and other toppings. The company was founded in 1991 by Tim
Rode. His brothers, Greg and Bob later joined him in the management of the company. In
1994, Toppers moved from Ogden, Utah to Pueblo to be more centrally located. The company
currently has 53 employees located at its Airport Industrial Park facility. Through the Pueblo
Economic Development Corporation (“PEDCO”), Toppers has requested half-cent sales tax
funds in the amount of $260,000 to purchase land and to construct a new 5,000 square foot
office and 40,000 square foot warehouse which would allow the Company to expand its Pueblo
operations. Toppers will invest approximately $4.7 million in the project.
FINANCIAL IMPLICATIONS:
Toppers has agreed to add 10 new employees for a 7-year period beginning on February 1,
2018. The $260,000 employment commitment will be personally guaranteed by Topper’s
owners, Tim Rode and Greg Rode. The $260,000 in 1992−2016 Sales and Use Tax Capital
Improvement Projects Fund incentive payments will be paid as follows:
a. $175,000 to the Airport Improvement Fund (“541 fund”) for the sale of Lot 31 of the
Pueblo Memorial Airport Industrial Park to Toppers;
b. Reimbursement to Toppers in the amount of $85,000 for the expansion costs of its
new facility.
BOARD/COMMISSION RECOMMENDATION:
Not applicable to this Resolution.
STAKEHOLDER PROCESS:
Not applicable to this Resolution.
ALTERNATIVES:
If this Resolution is not approved, Toppers may not be able to add 10 additional employees to
the Pueblo work force.
RECOMMENDATION:
PEDCO recommends approval of this Resolution.
Attachments:
Resolution, Employment Agreement, and Agreement to Sell and Purchase Real Estate.
EMPLOYMENT AGREEMENT
THIS AGREEMENT entered into as of this 26th day of May, 2015 between Pueblo, a
municipal corporation (the "City") and T.R. Toppers, Inc., an Idaho corporation (the
"Company").
WHEREAS, Company has expressed a willingness to expand a manufacturing center and
its business administration offices at the Pueblo Memorial Airport Industrial Park, and in
furtherance thereof has through the Pueblo Economic Development Corporation made
application for funds from the City, and
WHEREAS, the City has approved such application and will make funds available to
Company subject to and upon the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, City and Company agree as follows:
1. The following terms as used in this Agreement shall have the following meaning
unless the context clearly indicates otherwise:
"Construction costs" means the costs of new construction and also includes the cost of
building remodeling, including but not limited to electrical, plumbing, lighting, heating, cooling
and other building improvements, new offices, docks, doors, paint, utility extensions, street
vacation and related site work and other direct improvements to the Facility or to a new facility.
"Continuing Guaranty" means the Continuing Guaranty attached hereto.
"Employment Commitment Date" means February 1, 2018.
"Facility" means the manufacturing center and business administration offices located at
the Pueblo Memorial Airport Industrial Park, having a street address of 320 Fairchild Street,
Pueblo, Colorado, 81001, or such other facility as may be constructed by Company on Lot 41 of
the Pueblo Memorial Airport Industrial Park, wherein Company will conduct its business
operations.
"Full-Time Employee" means a person who actually performs work at the Facility for not
less than thirty-five (35) hours per week whether employed by Company or by an outside entity
acting as an agency to provide Full-Time Employees for Company.
"Quarter" means three consecutive calendar months commencing January 1, April 1, July
1 and October 1 of each calendar year.
"Quarterly Employees" means the sum of the aggregate number of Full-Time Employees
on each business day of a Quarter, divided by the sum of the business days in such Quarter.
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2. If Company is not in default under this Agreement, City will advance to or for the
benefit of Company funds in the amount of $260,000.00 (the "City Funds"), subject to and
contingent upon the following conditions and covenants which Company agrees to perform and
comply with:
(a) City Funds will be advanced by City to Company for the following
purposes: (i) $175,000.00 for the purchase of Lot 41 of the Pueblo Memorial Airport Industrial
Park; and (ii) $85,000.00 in construction costs for the expansion of or improvements to its
Facility or a new facility located on Lot 41 of the Pueblo Memorial Airport Industrial Park.
(b) Company shall file in the office of the City Clerk copies of the following:
(i) Company's certificate or other evidence of authority to transact business in the State of
Colorado issued by the Colorado Secretary of State, (ii) certified copy of the resolution of the
governing board of Company approving this Agreement and authorizing its officers to execute
and deliver this Agreement and related documents in the name of Company, (iii) executed
Continuing Guaranty, and (iv) evidence reasonably satisfactory to City that Company will
expand business operations at the Facility. The date of the last to occur of the filings required
under (i), (ii), (iii) and (iv) of this paragraph 2(b) shall be referred to herein as "Closing." If
Closing does not occur on or before December 31, 2015, or such later date as Company and City
shall mutually agree, City, at its sole option, may terminate this Agreement and City and
Company shall thereafter be released and discharged from all obligations hereunder.
(c) As a conditions precedent to the disbursement of City Funds for the
acquisition of Lot 41 or remodeling or construction costs, Company shall file (i) with the City
Clerk the documents described in Paragraph (b) above, and (ii) with the City's Director of
Finance written request for payment certified to be true and correct by an officer of Company
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 construction or remodeling or for the purchase of Lot
41, identifying the construction or remodeling for which payment is sought, including invoices
therefore and certificates that such construction has occurred. All City Funds, if any, received by
Company shall be deposited in a separate account and held in trust by Company for the sole and
only purpose of paying for construction or remodeling or the purchase of Lot 41.
3. Company acknowledges and agrees that the primary purpose of City in entering
into this Agreement and the sole benefit to the City for making City Funds available to Company
hereunder is the creation of jobs. Therefore, Company represents, covenants, and agrees that
Company will on and after the Employment Commitment Date continuously conduct its business
operations at the Facility and employ not less than sixty-three (63) Full-Time Employees at the
Facility whose annual compensation shall average at least $43,388.00, not including benefits.
Company will use good faith efforts in accordance with its sound business practices to employ
residents of the City of Pueblo as Full-Time Employees including, without limitation, engaging
in reasonable programs and posting of employment openings in the City of Pueblo (collectively
the "Employment Commitment").
4. Notwithstanding anything contained in this Agreement to the contrary, if
Company shall for any reason default in its Employment Commitment set forth in paragraph 3,
Company shall repay to City a pro-rata share of the City Funds advanced by City under
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paragraph 2 hereof based upon the number of Full-Time Employees employed by Company at
the Facility (the "Repayment Obligation"), as follows:
(a) During the seven (7) year period starting on the Employment Commitment
Date and ending eighty-four (84) months thereafter (the "Repayment Period") Company shall
pay to City an amount each Quarter equal to the Quarterly Employees less than sixty-three (63)
Full-Time Employees employed at the Facility by Company multiplied by $928.57 (the
"Company's Quarterly Payments"). For example, if for the second Quarter of the third year after
the Employment Commitment Date such Quarterly Employees is 60, the amount payable by
Company to City on or before the fifteenth (15th) day of the next calendar month would be (63 -
60) x $928.57 = $2,785.71.
(b) Company's Quarterly Payments, if any, shall be paid to the City without
notice, demand, deduction or setoff on or before the fifteenth (15th) day of the month after the
end of each Quarter during the Repayment Period and for one month thereafter at the office of
the Director of Finance of City, 1 City Hall Place, Pueblo, Colorado, 81003, or such other person
or location as the City may designate. All past due Company's Quarterly Payments shall bear
interest at the rate of eight percent(8%) per annum ("Default Interest") until paid.
(c) Within fifteen (15) days after the end of each Quarter after the
Employment Commitment Date and for one calendar month after the Repayment Period,
Company will submit to City's Director of Finance Company's statements showing the Quarterly
Employees for the preceding Quarter and their annual salary, together with the basis upon which
Quarterly Employees and Company's Quarterly Payment, if any, were computed certified by an
officer of the Company to be true and correct. For purposes of verifying Company's
employment and salaries, City shall have access to Company's records relating to Company's
employees employed at the Facility.
(d) Notwithstanding anything contained in this Paragraph 4 to the contrary, if
Company defaults in its Employment Commitment and Company's Repayment Obligation, and
such default is not cured within sixty (60) days after written notice specifying the default is given
by City to Company, then in such event, the entire balance of Company's Repayment Obligation
shall become due and payable, without notice, notice being hereby expressly waived, together
with Default Interest from the date of default, and for such purpose, the entire balance of
Company's Repayment Obligation shall be an amount equal to 10 times $928.57 multiplied by
the remaining Quarters of the Repayment Period plus the amount of Company's unpaid Quarterly
Payments, if any, but in no event more than the amount of City Funds advanced by City under
paragraph 2 hereof plus Default Interest as herein provided. Company's Repayment Obligation
is absolute and unconditional and shall not be abated, reduced, diminished, modified, withheld or
otherwise offset for any cause or reason whatsoever
5. Company's Repayment Obligation under this Agreement shall be deemed to be a
debt of Company payable to City until Company performs and discharges its obligations
hereunder including its Employment Commitment contained in Paragraph 3 and its Repayment
Obligation contained in Paragraph 4. Company's obligations under this Agreement including its
Employment Commitment and Repayment Obligation shall be guaranteed by a Continuing
Guarantee individually signed by Tim Rode and Greg Rode, all in form and content approved by
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City's Attorney.
6. (a) Prior to instituting any proceeding to enforce Company's Repayment
Obligation under Paragraph 4, City shall notify Company in writing of its intention to institute
such proceedings. Company may request relief from its Repayment Obligation by delivering to
City within twenty (20) days after date of City's notice, Company's written request for relief
specifying the grounds upon which such relief is sought together with documents supporting said
grounds. Within ninety (90) days after receipt of Company's request, City will schedule a
meeting with the City Council at which Company may appear. City will notify Company of the
time and place of the meeting. Failure of Company to timely deliver its complete written request
for relief or to appear at the scheduled meeting with the City Council shall entitle City to
immediately institute proceedings to enforce Company's Repayment Obligation.
(b) City Council may or may not, in its sole and absolute discretion, relieve
Company, in whole or in part, from Company's Repayment Obligation. Any action taken by the
City Council relating to a request for relief shall be final and binding on Company, and not
subject to judicial review. Any such action by City Council is, and shall constitute, a legislative
measure. Nothing contained in this paragraph 6 shall grant or be construed to grant to Company
any right or claim to relief from its Repayment Obligation or a hearing with respect thereto.
(c) No delay by the City in scheduling a meeting, or failure by City to
exercise its right to enforce this Agreement, including Company's Repayment Obligation, and no
partial or single exercise of that right, shall constitute a waiver of that right.
7. In the event of any litigation arising under this Agreement, the court shall award
to the prevailing party its costs and reasonable attorney fees. Exclusive venue for any such
litigation shall be Pueblo County, Colorado. All such litigation shall be filed in the District
Court, County of Pueblo, State of Colorado and each party submits to the jurisdiction of such
District Court. To the extent allowed by law, each party waives its right to a jury trial.
8. This Agreement expresses the entire understanding of the parties and supersedes
and abrogates any and all prior dealings and commitments, whether oral or written, with respect
to the subject matter of this Agreement and 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 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.
9. 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.
10. 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 S. Main Street, Pueblo, CO
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81003 with a copy to City Attorney, 1 City Hall Place, Third Floor, Pueblo, Colorado 81003, or
(b) if to the Company, Chief Operating Officer, 320 Fairchild Street, Pueblo,
Colorado, 81001
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 paragraph 10.
11. Time is of the essence hereof. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors and assigns, provided Company may not
assign this Agreement or any interest herein without the express written consent of the City,
which consent may be arbitrarily withheld, conditioned or delayed. Any assignment or
attempted assignment of this Agreement by Company without such consent shall be null and
void. However, if Company proposes to assign this Agreement to a purchaser of its business, the
transaction is an arms-length transaction, the purchaser assumes and agrees to perform
Company's obligations under this Agreement, and the assignment shall not waive, release or
discharge Guarantor's obligations under the Continuing Guaranty, then, in such events, the
assignment may be made with the express written consent of the City, which consent may not be
unreasonably withheld. The City shall have the right to determine that said proposed purchaser
is credit worthy, has sufficient business experience in the manufacturing sector, and is capable of
performing Company's obligations under this Agreement.
12. 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.
13. Company represents and warrants that no person, entity, or organization has been
employed or retained or will receive or be paid, directly or indirectly, any commission,
percentage, contingent fee or any other remuneration, payment or receipt of which is contingent
upon approval of this Agreement or City's advancement of City Funds to Company hereunder.
For breach or violation of this warranty, City shall have the right to terminate this Agreement, or
recover the full amount of such commission, percentage, contingent fee or other remuneration,
and/or to seek such other remedies legally available to City, which remedies shall be cumulative.
14. In no event shall City, its officers, agents or employees be liable to Company for
damages, including without limitation, compensatory, punitive, indirect, special or consequential
damages, resulting from or arising out of or related to this Agreement or the performance or
breach thereof by City or the failure or delay of City in the performance of any covenant or
provision under this Agreement on its part to be performed. In consideration of City entering
into this Agreement, Company hereby waives and discharges City, its officers, agents and
employees from 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 Repayment Obligation under paragraph 4 hereof with respect to the amount of City
Funds actually advanced or paid by City to or for the benefit of Company pursuant to paragraph
2 hereof.
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Notwithstanding the above, in the event of breach of this Agreement by the City,
Company shall have the right to request specific performance of this Agreement by the City, but
not damages.
15. 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.
16. Neither party shall be, or hold itself out as, agent of the other or as joint venturers
or partners under this Agreement.
17. 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.
18. 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.
19. 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 original.
Executed effctive the day and year first above written.
[ SEAL] Pueblo, a Municipal Corpor. '•
Attest: By —�_�►''�
City Jerk Preside he City Council
[ SEAL ] T.R. Toppers, Inc
an Idaho corporation
Attest: By
Name: Name:
Title: Title:
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Notwithstanding the above, in the event of breach of this Agreement by the City,
Company shall have the right to request specific performance of this Agreement by the City, but
not damages.
15. 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.
16. Neither party shall be, or hold itself out as, agent of the other or as joint venturers
or partners under this Agreement.
17. 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.
18. 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.
19. 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 original.
Executed effctive the day and year first above written.
[ SEAL ] Pueblo, a Municipal Corporation
Attest: By
City Clerk President of the City Council
[ SEAL ] T.R. Toppers, Inc
an Idaho corporation
Attest: j ,o:A By
Name: Mari 0, L- ( 16'1 Name: 0,62,
Title: No- P1,,3)11 C. Title: 1/, A
rncomirN ssion expires ig , aoll0
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CONTINUING GUARANTY
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, and as inducement to the City of Pueblo, a municipal corporation (the "City") to
enter into the attached Agreement dated May 26, 2015 between City and T.R. Toppers, Inc., an
Idaho corporation (the "Company") (the "Agreement") the undersigned Tim Rode and Greg
Rode (the "Guarantors"), individually and jointly, unconditionally guarantee and promise to pay
to City, or order, on demand, in lawful money of the United States, the full amount of Company's
Repayment Obligation described in and in accordance with the terms and provisions of
Paragraph 4 of the Agreement (the "Indebtedness").
The liability of Guarantors under this Guaranty shall not exceed at any one time the
principal sum of$260,000.00, plus default interest, if any, owed pursuant to Section 4(b) of the
Agreement. This is a continuing irrevocable guaranty relating to the Indebtedness, including
successive transactions which shall either continue the Indebtedness or from time to time modify
or renew it. Any payment by Guarantors shall reduce their maximum obligation hereunder.
The obligations of Guarantors hereunder are independent of the obligations of Company,
and a separate action or actions may be brought and prosecuted against Guarantors, individually
or jointly, whether action is brought against Company or whether Company be joined in any
such action or actions. Guarantors acknowledge that the payment of the Indebtedness may
extend beyond six (6) years from the date of this Agreement. Guarantors hereby waive any
defense to the enforcement of this Guaranty based upon laches or any statutory or other period of
limitation, provided, however, that any such action to enforce this Guaranty shall be commenced
on or before January 31, 2031.
Guarantors authorize the City, without notice or demand and without affecting their
liability hereunder, from time to time to (a) renew, compromise, extend, accelerate or otherwise
change the time for payment of, or otherwise change or modify the terms of the Indebtedness or
any part thereof; (b) take and hold security for the payment of this Guaranty or the Indebtedness
guaranteed, and exchange, enforce, waive and release any such security; (c) apply such security
and direct the order or manner of sale thereof as City in its discretion may determine; and (d)
release or substitute any one or more of the Guarantors. City may without notice assign this
Guaranty in whole or in part.
Guarantors waive any right to require City to (a) proceed against Company; (b) proceed
against or exhaust any security held from Company; or (c) pursue any other remedy in City's
power whatsoever. Guarantors waive any defense arising by reason of any disability or other
defense of Company or by reason of the cessation from any cause whatsoever of the liability of
Company. Until the Indebtedness of Company to City shall have been paid in full, Guarantors
shall have no right of subrogation, and waive any right to enforce any remedy which City now
has or may hereafter have against Company, and waive any benefit of, and any right to
participate in any security now or hereafter held by City. Guarantors waive all presentments,
demands for performance, notices of non-performance, protests, notices of protest, notice of
dishonor, and notices of acceptance of this Guaranty.
Any debts or other financial obligations of Company now or hereafter held by Guarantors
are hereby subordinated to the Indebtedness of Company to City and such debts or other financial
obligations of Company to Guarantors, if City so requests, shall be collected, enforced and
received by Guarantors as trustee for City and be paid over to City on account of the Indebtedness
of Company to City but without reducing or affecting in any manner the liability of Guarantors
under the other provisions of this Guaranty.
Guarantors agree that it is not necessary for City to inquire into the powers of Company or
the officers, directors, or agents acting or purporting to act on its behalf, and the Indebtedness
made or created in reliance upon the professed exercise of such powers is guaranteed hereunder.
Guarantors agree to pay a reasonable attorney fee and all other costs and expenses which
may be incurred by City in the enforcement of this Guaranty.
Guarantors agree that this Guaranty is a contract entered into and to be performed in
Pueblo County, Colorado. The District Court for the County of Pueblo, State of Colorado shall
have exclusive jurisdiction over any suit or action which involves this Guaranty and exclusive
venue for any such suit or action shall be Pueblo County, Colorado. Guarantors consent to the
personal jurisdiction of that Court and agree that service of process may be made upon Guarantors
either within or without the State of Colorado. To the extent permitted by law, Guarantors waive
all rights to jury trial.
Any notice 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, CO
81003, with a copy to City Attorney, 1 City Hall Place, Third Floor, Pueblo, CO 81003, or
(b) if to Guarantors, 320 Fairchild Street, Pueblo, CO 81001
or to such other addresses as any party hereto shall specify in written notice to the other parties.
Time is of the essence hereof This Guaranty shall be binding upon and inure to the
benefit of City and Guarantors and their respective heirs, personal representatives, successors and
assigns. The plural shall include the singular.
IN WITNESS WHEREOF the undersigned Guarantors have executed this Guaranty with
an effective date of May 26, 2015.
Name: Tim Rode Name: Greg Rode
Signature: - Signature: }.!/'" —
Address: 320 Fairchild Street Address: 320 Fairchild Street
Pueblo, CO 81001 Pueblo, CO 81001
2
• -
STATE OF Co1.Orati0 )
) ss.
COUNTY OF PUS021 p )
The foregoing instrument was acknowledged before me this day of r ,
2015 by Tim Rode and Greg Rode.
Witness my hand and official seal.
My commission expires: (p` (q Loi (p
[ SEAL ] `•1' I IOAAaiQ)
Notary Public
r^1 �
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AGREEMENT TO SELL AND PURCHASE
THIS AGREEMENT is made the 26th day of May, 2015, between Pueblo, a Colorado
municipal corporation, 200 S. Main St., Pueblo, CO 81003, hereinafter called the Seller, and,
T.R. Toppers, Inc., an Idaho corporation, 320 Fairchild St., Pueblo, CO 81001, hereinafter called
the Purchaser.
1. Property Defined. The Seller agrees to sell and convey and the Purchaser agrees
to purchase, all that certain unimproved plat, piece, or parcel of land, consisting of 4.71 acres,
located on the south east corner of Reyes Street and Walt Bassett Avenue, in the Pueblo
Memorial Airport Industrial Park, having the legal description of Lot 41, Pueblo Memorial
Airport Industrial Park, Pueblo County, Colorado, as described in Exhibit A attached hereto (the
"Property"). The Property shall be conveyed by Special Warranty Deed ("Deed") a form of
which, marked as Exhibit 1, is attached hereto and incorporated herein by reference. The
Property shall be conveyed subject to the conditions listed in Paragraph 4 of this Agreement and
the exceptions listed in Exhibit B, which is attached hereto and incorporated herein by reference
("Permitted Exceptions").
2. Purchase Price. Purchaser shall pay the total purchase price of One Hundred
Seventy-Five Thousand Dollars (U.S. $175,000)(the"Purchase Price").
3. Payment of Purchase Price. The Purchase Price shall be payable in full at Closing
in cash,certified funds or immediately available wire transferred funds.
4. The premises are sold and are to be conveyed subject to:
(a) Zoning and subdivision regulations and ordinances of the City of Pueblo.
(b) Encroachments if any, upon the Property or abutting property.
(c) Any statement of facts an accurate survey may show.
(d) Covenants, reservations,rights of way, easements and restrictions of record,
if any.
Purchaser acknowledges that, at Closing, it shall accept the Property subject to those items
contained in subparagraphs (a) through (d) together with other Permitted Exceptions, which
provisions shall survive the Closing and shall not be merged with the Deed.
5. Contingency. The Purchase and Sale transaction contemplated by this Agreement
is expressly contingent upon the express written approval of same by the Federal Aviation
Administration ("FAA"). In the event that such approval is not received from the FAA by
December 31, 2015, this Agreement shall be rendered null and void and the Purchaser and Seller
shall be relieved of further performance hereunder.
1
6. Closing Time and Place. Closing of the transaction contemplated hereby
("Closing") shall be held at the offices of Fidelity National Title Company in Pueblo, CO at a
date and time as agreed by Seller and Purchaser. The Closing shall not occur until the Seller
receives the approval of the FAA for this purchase and sale transaction pursuant to Section 5 of
this Agreement.
7. Closing Costs. All costs and expenses incident to this transaction and the Closing
thereof shall be paid by the party incurring same.
8. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT
AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR
CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS
TO HABITABILITY, MERCHANTABILTY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE (OTHER THAN SELLER'S WARRANTY OF TITLE TO BE SET FORTH IN THE
DEED), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL
CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION,
GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH
GOVERNMENTAL LAWS, OR ANY OTHER MATTER OR THING REGARDING THE
PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING
SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL
ACCEPT THE PROPERTY"AS IS, WHERE IS, WITH ALL FAULTS."
9. Seller and Purchaser agree that the provisions of Section 8 of this Agreement shall
survive Closing and the recording of the Deed.
10. All understandings and agreements heretofore had between the parties hereto are
merged into this Agreement, which alone fully and completely expresses their agreement, and
this Agreement is entered into after full investigation, neither party relying upon any statement or
representation,not embodied in this Agreement, made by the other.
11. This Agreement may not be changed or terminated orally.
12. The stipulations in this Agreement are to apply to and bind the heirs, executors,
administrators, successors, and assigns of the respective parties.
13. If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall nonetheless
remain in full force and effect.
14. Applicable Law. THIS AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF COLORADO. SELLER AND PURCHASER HEREBY IRREVOCABLY
2
SUBMIT TO THE JURISDICTION OF THE DISTRICT COURT, PUEBLO COUNTY,
STATE OF COLORADO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND HEREBY IRREVOCABLY AGREE THAT ALL
CLAIMS WITH RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD AND
DETERMINED IN THE DISTRICT COURT OF PUEBLO COUNTY, STATE OF
COLORADO. PURCHASER AND SELLER AGREE THAT THE PROVISIONS OF THIS
PARAGRAPH 14 SHALL SURVIVE THE CLOSING OF THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT AND THE RECORDING OF THE DEED
HEREUNDER. TO THE EXTENT PERMITTED BY LAW, PURCHASER AND SELLER
WAIVE THEIR RIGHTS TO A TRIAL BY JURY.
15. The provisions of this Agreement and of the documents to be executed and
delivered at Closing are and will be for the benefit of Seller and Purchaser only and are not for
the benefit of any third party, and accordingly, no third party shall have the right to enforce the
provisions of this Agreement or of the documents to be executed and delivered at Closing.
16. The following schedules or exhibits attached hereto shall be deemed to be an
integral part of this Agreement:
(a) Exhibit 1 —Form of Special Warranty Deed
(b) Exhibit A—Legal Description
(c) Exhibit B—Permitted Exceptions
17. The section headings appearing in this Agreement are for convenience of
reference only and not intended, to any extent and for any purpose, to limit or define the text of
any section or any subsection hereof.
18. The parties acknowledge that the parties and their counsel have reviewed and
revised this Agreement and that the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the interpretation of this
Agreement or any exhibits or amendments hereto.
19. The waiver or failure to enforce any provision of this Agreement shall not operate
as a waiver of any future breach of any such provision or any other provision hereof.
20. Purchaser shall not record this Agreement or any short form memorandum of this
Agreement.
Executed effective the day and year first above written.
3
SELLER:
CITY OF PUEBLO, CO
A MUNICIPAL CORPORATION
By: __..t
ATTESTED BY: _.
CIT LERK
PURCHASER:
T.R. TOPPERS,INC.
An Idaho corporation
By:
Print name:
Print title:
STATE OF )
) SS.
COUNTY OF )
The foregoing instrument was acknowledged before me on this day of May,
2015, by , as of T.R. Toppers,Inc. an Idaho corporation.
Witness my official hand and seal.
My Commission Expires:
Notary Public
4
r / , I
SELLER:
CITY OF PUEBLO, CO
A MUNICIPAL CORPORATION
By:
City Council President
ATTESTED BY:
CITY CLERK
PURCHASER:
T.R. TOPPERS, INC.
An Idaho corporation
By:
Print name: M... Opo" P
Print title: fri P�
STATE OF adOraAo )
SS.
COUNTY OF PuQbt D )
The foregoing instrument was acknowledged before me on this e(044.1 day of May,
2015, by Gr. Rock_ , as V jC2.P!'esi clen-4- of T.R. Toppers, Inc. an Idaho corporation.
Witness my official hand and seal.
My Commission Expires: (),
Q, Id 1 d0(D
'1/4-MaAkai. c3, ab°AA
Notary Public
4
2024956 WD 12/28/2015 03:30:18 PM
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Gilbert Ortiz Clerk/Recorder, Pueblo County, Cc
III rJ I DMOIN: L � 1 IVAt i1AMI A
SPECIAL WARRANTY DEED
THIS DEED, made this 9[ � day of 12E C f M _3 9'R 2015 between Pueblo,
a Colorado municipal corporation (hereinafter referred to as "Grantor"), and T.R. Toppers, Inc.,
an Idaho corporation, whose legal address is 320 Fairchild Street, Pueblo, CO 81001 (hereinafter
referred to as "Grantee"):
WITNESSESTH, that the Grantor, for and in consideration of the sum of ONE
HUNDRED SEVENTY-FIVE THOUSAND DOLLARS ($175,000.00), and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, has
granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell, convey,
and confirm, unto the Grantee, its heirs, successors and assigns forever, all the real property,
together with improvements, if any, situate, lying and being in Pueblo County, State of Colorado,
described on Exhibit A attached hereto and made a part hereof, for all purposes, together with all
and singular the rights, benefits, privileges, easements, tenements, hereditaments and
appurtenances thereto belonging, or in anywise appertaining, and the reversion and reversions,
remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest,
claim and demand whatsoever of the Grantor, either in law or equity, of, in and to the above
bargained premises, with the hereditaments and appurtenances;
This conveyance is made subject and subordinate to those encumbrances and
exceptions (the "Permitted Exceptions") set forth on Exhibit B attached hereto and made a part
hereof for all purposes.
TO HAVE AND TO HOLD the said premises, subject to the Permitted
Exceptions, above bargained and described, with the appurtenances, unto the Grantee, its heirs,
successors and assigns forever. The Grantor, for itself, its successors and assigns does covenant
and agree that it shall and will WARRANT AND FOREVER DEFEND the above -bargained
premises in the quiet and peaceable possession of the Grantee, its heirs, successors and assigns,
against all and every person or persons claiming the whole or any part thereof, by, through or
under the Grantor.
IN WITNESS WHEREOF, this Special Warranty Deed is executed by Grantor
to be effective the day and year first above written.
GRANTOR:
Pueblo, a Colorado municipal corporation
By:
Step en i, President
Pueblo City Council
/a��r'OGot
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Gilbert Ortiz Clerk/Recorder, Pueblo County Cc
ill �� I�qirmviv
STATE OF COLORADO)
) SS.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before me on this hL
day of
DF' C F 111 95 E A, 2015, by Stephen G. Nawrocki, as President of the Pueblo City Council.
Witness my official hand and seal.
My Commission Expires: 0 3 — O 1� — . D 160
DANIEL C. KOGOVSEK
NOTARY PUBLIC Notary Public
STATE OF COLORADO
NOTARY ID 20084004631
My COMMOSION EXPIRES 0310012016
EXHIBIT A
LEGAL DESCRIPTION
Lot 41, Pueblo Memorial Airport Industrial Park, Pueblo County, Colorado
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Gilbert Ortiz Clerk/Recorder, Pueblo County, Cc
III V OK, FUN 1114& 11111
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Gilbert Ortiz ClerklRecorder, Pueblo County, Co
Mill FAMOMIM0111 AVIV MAO: FMM K'"AA ff II
SCHEDULE B
Exceptions
1. Any facts, rights, interests or claims that are not shown by the Public Records but which could be
ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land.
2. Easements, liens or encumbrances, or claims thereof, not shown by the Public Records.
3. Any encroachments, encumbrances, violation, variation, or adverse circumstance affecting the Title that
would be disclosed by an accurate and complete land survey of the Land and not shown by Public
Records.
4. Any lien or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by
law and not shown by the Public Records.
5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the Public
Records or attaching subsequent to the effective date hereof but prior to the date the proposed Insured
acquires of record for the value the estate or interest or mortgage thereon covered by this Commitment.
6. Water rights, claims of title to water, whether or not these matters are shown by the Public Records.
7. All taxes and assessments, now or heretofore assessed, due or payable.
NOTE: This tax exception will be amended at policy upon satisfaction and evidence of payment of taxes.
8. Covenants, conditions, restrictions and easements set forth in the Quitclaim Deed recorded July 31, 1948
in Book 1074 at Page 87 as amended by Deed Of Release recorded June 1, 2005 at Reception No.
1622490.
9. An easement for gas, petroleum or any of its products and water pipe line and incidental purposes granted
to Colorado Interstate Gas Company by the instrument recorded February 16, 1950 in Book 1116 at Page
427.
10. Easements, Notes and notices as set forth on and/or created by the plat of PUEBLO MEMORIAL
AIRPORT INDUSTRIAL PARK SUBDIVISION recorded October 11, 1995 in Book 2836 at Page 665.
H. Terms, conditions, provisions, agreements and obligations contained in the Subdivision Improvements
Agreement For Pueblo Memorial Industrial Park Subdivision recorded October 11, 1995 in Book 2836 at
Page 705,
12. Easements, notes and notices as set forth on the Subdivision Exemption No. 86-6 map recorded
September 29, 1968 in Book 2309 at Page 328 and Subdivision Exemption No. 86-6 Amended map
recorded November 27, 1991 in Book 2568 at Page 568.
13. Terms, conditions, provisions, agreements and obligations contained in the Notice of Pueblo Conservancy
District Notice as set forth below:
Recording Date: August 1, 2007
Recording No.: Rece tion No. 1736292
14. Any existing leases or tenancies, and any and all parties claiming by, through or under said lessees.
END OF EXCEPTIONS
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Gilbert Ortiz Clerk/Recorder, Pueblo County, Co
®III I�IP81'1115k rfl �i�M ���[Af N `:�I 11,141W 1114, 1111111