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RESOLUTION NO. 13528
A RESOLUTION APPROVING AN AGREEMENT BETWEEN
PUEBLO, A MUNICIPAL CORPORATION AND VESTAS
TOWERS AMERICA, INC., A DELAWARE CORPORATION
RELATING TO A CAPITAL IMPROVEMENT PROJECT,
AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO
EXECUTE SAID AGREEMENT AND TRANSFERRING $2,484,000
FROM THE 1992-2021 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 $2,484,000 for the job
creating capital improvement project with Vestas Towers America, Inc., a Delaware corporation
(“Vestas”) described in the attached Agreement meets and complies with the criteria and
standards established by Section 4-4-85 of the Pueblo Municipal Code and will create
employment opportunities justifying the expenditure of public funds.
SECTION 2.
The agreement dated September 26, 2016 between Pueblo, a municipal corporation and
Vestas relating to a job creating capital improvement project, a copy of which is attached hereto
(“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 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 $2,484,000 are hereby authorized to be transferred,
expended and made available out of the 1992-2021 Sales and Use Tax Capital Improvements
Projects Fund for the sole purpose of creating the capital improvement project authorized herein
and in the manner described in the attached Agreement. The funds hereby authorized to be
transferred and expended shall be released, disbursed and paid by the Director of Finance as
specified in the 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 the attached Agreement which are necessary and
desirable to effectuate the transactions described therein.
SECTION 5.
This Resolution shall become effective immediately upon final passage.
INTRODUCED: September 26, 2016
BY: Robert Schilling
City Clerk’s Office Item # Q-1
Background Paper for Proposed
Resolution
COUNCIL MEETING DATE: September 26, 2016
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 AGREEMENT BETWEEN PUEBLO, A
MUNICIPAL CORPORATION AND VESTAS TOWERS AMERICA, INC., A
DELAWARE CORPORATION RELATING TO A CAPITAL IMPROVEMENT
PROJECT, AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO
EXECUTE SAID AGREEMENT AND TRANSFERRING $2,484,000 FROM THE
1992-2021 SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS FUND
SUMMARY:
Attached is a proposed Resolution approving and authorizing the President of City Council to sign
an Agreement with Vesta Towers America, Inc., a Delaware corporation (“Vestas”) for the addition
of 108 new employees at Vestas’ tower manufacturing facility.
PREVIOUS COUNCIL ACTION:
On August 25, 2008, City Council authorized the transfer of $11,813,400 from the half-cent job
creating fund to Vestas in exchange for the creation of 450 new jobs at Vestas’ Tower
manufacturing facility located south of the Minnequa Industrial Park.
On July 27, 2009, City Council authorized the transfer of $2 million to Vestas to employee 150
low and moderate income persons to work at Vestas’ tower manufacturing facility. The $2 million
in funds was a “pass through” of DOLA Energy Mineral Impact Assistance Grant Funds No half-
cent job creating funds were expended.
BACKGROUND:
Vestas plans to begin a $22 million capital expansion program at its Pueblo facility and has
requested $2,484,000 in economic incentives to be spent as follows:
$1.6 million for a new welding system
$884,000 for expansion of Vestas’ manufacturing facility
FINANCIAL IMPLICATIONS:
In exchange for the $2,484,000 in funds, Vestas has agreed to the creation of 108 new jobs, for
a seven year period ending on September 30, 2023. These new jobs will be in addition to the
450 full-time jobs previously agreed to under the 2008 Agreement. The City’s economic incentive
payment is secured by a first Deed of Trust on Vestas’ manufacturing facility located at 100 Tower
Road, Pueblo, Colorado 81004.
BOARD/COMMISSION RECOMMENDATION:
Not applicable to this Resolution.
STAKEHOLDER PROCESS:
Not applicable to this Resolution.
ALTERNATIVES:
If this Resolution is not approved, Vestas may decide not to expand its operations in the City of
Pueblo.
RECOMMENDATION:
The Pueblo Economic Development Corporation recommends approval of this Resolution.
Attachments:
Proposed Resolution, Agreement and First Amendment to Deed of Trust
AGREEMENT
THIS AGREEMENT ("2016 Agreement") entered into as of September 26, 2016
between Pueblo, a municipal corporation (the "City") and Vestas Towers America, Inc., a
Delaware corporation authorized to do business in the State of Colorado (the "Company"). The
City and Company may be individually referred to herein as "Party" or collectively referred to as
"Parties."
WHEREAS, the City granted the Company economic incentives to open and operate a
wind tower manufacturing facility in the City pursuant to agreements dated August 25, 2008
("2008 Agreement") and July 27, 2009 ("2009 Agreement") respectively; and
WHEREAS, the Parties desire that the 2008 Agreement and 2009 Agreement remain in
full force and effect according to their terms and conditions; and
WHEREAS, the Company wishes to expand its Pueblo manufacturing operations by
enlarging its manufacturing facility and acquiring new manufacturing equipment; and
WHEREAS, the City Council of the City will make additional funds available to the
Company subject to and upon the terms and conditions of this 2016 Agreement; and
WHEREAS, the Parties wish to enter into this 2016 Agreement to specify the Company's
future employment commitment at its Pueblo plant in exchange for the additional economic
incentives to be provided by the City, as outlined herein.
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:
"Employment Commitment Date" means October 1, 2016.
"Facility" means the buildings and storage area located at 100 Tower Road, Pueblo, CO
81004 where Company conducts its Tower Operations.
"Full-Time Employee" means a person who actually performs work at the Facility for not
less than thirty-two (32) hours per week, whether employed by Company or by an outside entity
acting as an agency to provide Full-Time Employees for Company. For the purposes of this
2016 Agreement only, the term "Full-Time Employee" shall include independent contractors
with a domicile in Pueblo, Colorado, but only to the extent such independent contractors do not
exceed ten percent (10%) of the total number of Full Time Employees, and shall also include
officers of the Company residing in Pueblo, but shall not include any independent contractors in
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excess of ten percent (10%) of the total number of Full Time Employees, nor officers not
residing in Pueblo nor any shareholders of 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 number of business days in such Quarter.
2. So long as Company is not in default hereunder, City will, on or before the
Employment Commitment Date, advance to or for the benefit of Company funds in the amount
of $2,484,000.00 (the "City Funds"), subject to and contingent upon the following conditions
and covenants which Company agrees to perform and comply with:
(a) City Funds shall be used solely for the following purposes:
(i) $884,000.00 will be funded to Company for expansion of the
Facility located at 100 Tower Road, Pueblo, CO 81004;
(ii) $1,600,000.00 will be funded to the Company for the purchase and
installation of a new welding system at the Facility.
(b) Company shall file in the office of the City Clerk the following: (i) copies
of 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 2016 Agreement and the First Amendment to Deed
of Trust and authorizing its officers to execute and deliver this 2016 Agreement and the First
Amendment to Deed of Trust in the name of Company. The date of the last to occur of the filings
required under (i) and (ii) of this Paragraph 2(b) shall be referred to herein as "Closing." If
Closing does not occur on or before December 31, 2016, 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 conditions precedent to disbursement or payment of City Funds,
Company shall file with the City Clerk the documents required by (b) above, and (i) with respect
to the portion of the City Funds described in subsections 2(a), Company shall file with 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 expansion of the Facility and the actual
cost of a new welding system, identifying the work and materials for which payment is sought,
including certificates of the architect and/or contractor that the work and materials for which
payment is sought has been completed and installed. 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 the items described in Paragraph 2(a)(i) or (ii), as applicable.
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(d) Company in awarding contracts for the expansion of the Facility shall
allow local contractors a reasonable opportunity to participate in the competitive bidding, or
other selection procedure used by Company. A similar provision with respect to qualified local
subcontractors and material suppliers shall be included as part of the construction contracts for
the expansion of the Facility. For purposes hereof, the term "local" means having its principal
place of business in the City or County of Pueblo, Colorado, and the term "qualified" means
having all required licenses, experience and bonding capacity to perform the work or supply the
material.
3. Company acknowledges and agrees that the primary purpose of City in entering
into this 2016 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, other than during the duration of a delay caused by a Force Majeure Event (as
hereinafter defined) which prohibits or materially interferes with the contemplated Tower
Operation; provided, that over the life of this 2016 Agreement, all such delays, when taken
together in the aggregate, cannot exceed 12 months, it will continuously conduct its business
operations and employ Full-Time Employees at the Facility as follows: (i) during the period from
date of this Agreement to the Employment Commitment Date, Company shall diligently use
commercially reasonable efforts in good faith to employ as many Full-Time Employees as are
reasonably required by its Tower Operation, and (ii) on and after the Employment Commitment
Date, Company shall employ not less than one hundred eight (108) Full-Time Employees at the
Facility until the end of the Repayment Period (the "Employment Commitment") or it shall
comply with the Repayment Obligation set forth below. The one hundred and eight (108) Full-
Time Employees must be new employees employed in reference to the capital dollars identified
in section 2(a) (i) and (ii) of this Agreement
4. Notwithstanding anything contained in this 2016 Agreement to the contrary, if
Company shall for any reason default in its Employment Commitment set forth in Paragraph
3(ii) above, Company shall repay to City a pro-rata share of the City Funds advanced by City
under Paragraph 2 hereof based upon the number of Full-Time Employees employed by
Company at the Facility (the "Repayment Obligation"), as follows:
(a) During the seven (7) year period starting on the Employment Commitment
Date and ending eighty-four (84) months thereafter (the "Repayment Period"), Company shall
pay to City an amount each Quarter equal to the Quarterly Employees less than one hundred
eight (108) Full-Time Employees employed at the Facility by Company multiplied by $821.43
(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 100, the amount payable
by Company to City on or before the fifteenth (15th) day of the next calendar month would be
(108 - 100) x $821.43 = $6,571.44.
(b) Company's Quarterly Payments, if any, shall be paid to the City without
notice, demand, deduction or setoff on or before the forty-fifth (45th) day after the end of each
Quarter during the Repayment Period and for one month thereafter at the office of the Director of
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Finance of City, 1 City Hall Place, 2nd Floor, 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(8) percent per annum ("Default Rate") until paid.
(c) Within forty-five (45) days after the end of each Quarter after the
Employment Commitment Date until the last Quarter of the Repayment Period, Company will
submit to City's Director of Finance Company's statements showing the Quarterly Employees for
the preceding Quarter and the basis upon which Quarterly Employees and Company's Quarterly
Payment, if any, were computed certified by an officer of the Company to be true and correct.
For purposes of verifying such employment, City shall have access, upon reasonable prior
written notice to the Company and during regular working hours, to Company's records relating
to Company's employees employed at the Facility to the extent necessary to verify such
employment. Except with respect to the number of Quarterly Employees or in the event of any
action filed by City to enforce this Agreement, City shall treat such information as confidential
and shall not disclose (except pursuant to a subpoena or court order) such information to any
party other than those City employees who have a need to know such information.
(d) Notwithstanding anything herein to the contrary, if Company defaults for
any reason in the payment of its 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, City may declare the entire balance of the Company's Repayment Obligation due
and owing together with interest thereon from the date of default at the Default Rate, and for
such purpose, the entire balance of Company's Repayment Obligation shall be an amount equal
to 108 times $821.43 multiplied by the remaining Quarters of the Repayment Period plus the
amount of Company's previously past due and unpaid Quarterly Payments, if any. 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.
(e) Except as otherwise provided in Paragraphs 7 and 13 hereof, City's
damages for breach of Company's Employment Commitment set forth in Paragraph 3(ii) above
or Repayment Obligation and the Company's total Repayment Obligation shall not exceed
$2,484,000.00 (plus interest in the event of a late payment as described in Paragraph 4(b) or in
the event of acceleration as provided in Paragraph 4(d)), provided, however, that such maximum
$2,484,000.00 amount shall be reduced by $88,714.29 for each Quarter Company meets its
Repayment Obligation during the Repayment Period by either (i) employing one hundred eight
(108) Quarterly Employees at the Facility, or (ii) paying Company's Quarterly Payments as
provided in Paragraph 4(a) above for such Quarter. The maximum $2,484,000.00 as such
amount may be reduced on a Quarter by Quarter basis as set forth in this Paragraph 4(e), plus
interest, if any, shall be referred to herein as the "Outstanding City Funds Obligation".
(f) If the amount of City funds advanced by City to or for the benefit of
Company on or before the Employment Commitment Date pursuant to Paragraph 2 above is less
than $2,484,000.00, Company's Repayment Obligation, Company's Quarterly Payments, and the
$821.43 per Quarter Employee will be proportionately reduced.
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5. The Outstanding City Funds Obligation shall be deemed to be a debt of Company
payable to City pursuant to the terms and conditions of this 2016 Agreement. As further
consideration for entering into this 2016 Agreement, Company agrees to execute and deliver to
the City the First Amendment to Deed of Trust attached hereto.
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 thirty (30) 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 at least ten (10) days before 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 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, and the prevailing party shall recover its costs together with all internal and out-of-pocket
expenses of any kind relating to the litigation including, but not limited to, reasonable attorney
fees. Venue for any such litigation shall be in the United States District Court for the District of
Colorado. All such litigation shall be filed in such Federal District Court and each party submits
to the jurisdiction of such Federal District Court. To the extent allowed by law, each party
waives its right to a jury trial.
8. Except for the 2008 Agreement and the 2009 Agreement, this 2016 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
2016 Agreement and may not be amended or modified except in writing signed by City and
Company. Any waiver of any provision of this 2016 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
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other provision of this 2016 Agreement. The failure of either party to enforce or seek
enforcement of the terms of this 2016 Agreement following any breach shall not be construed as
a waiver of such breach.
9. This 2016 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, 1 City Hall Place, 2nd Floor,
Pueblo, Colorado, 81003, with copy to City Attorney, 1 City Hall Place, 3rd Floor, Pueblo,
Colorado, 81003, or
(b) if to the Company, Anthony J. Knopp, President, 100 Tower Road,
Pueblo, CO 81004
or to such other person or address within the State of Colorado as either party shall specify in
written notice given to the other party pursuant to the provisions of this Paragraph 10. Notice
shall be effective (i) upon receipt, if delivered personally, or (ii) three (3) business days after
deposit in the mails, if mailed.
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 except to an affiliate without the express written
consent of the City which shall not be unreasonably withheld, conditioned or delayed. Any
assignment or attempted assignment of this Agreement by Company without such consent shall
be null and void. No assignment of this Agreement or any interest herein by Company shall
release or discharge Company from any of its obligations under this Agreement unless otherwise
agreed by City at the time consent to assignment is given.
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 and legally binding
obligation of Company enforceable against Company in accordance with its terms. The persons
signing this Agreement in the name of and on behalf of City represent and warrant that they and
the City have the requisite power and authority to enter into, execute, and deliver this
Agreement, and that this Agreement is a valid and legally binding obligation of the City
enforceable against the City in accordance with its terms.
13. Company represents and warrants that, except as contemplated by City and
Company with respect to the persons to be hired in connection with the Tower Operation, 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
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receipt of which is contingent upon approval of this Agreement by City 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 from Company 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.
14. In no event shall either party hereto or their respective officers, agents or
employees be liable to the other party hereto for punitive, indirect, special or consequential
damages, resulting from or arising out of or related to this Agreement or the performance or
breach thereof by such party or the failure or delay of such party in the performance of any
covenant or provision under this Agreement on its part to be performed. In consideration of each
party entering into this Agreement, the other party hereby waives and discharges such party and
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 Outstanding City Funds Obligation. Notwithstanding the foregoing, Company and/or City
may institute an action in specific performance to enforce the performance of the other party's
obligations under this Agreement.
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 ventures
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 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.
20. (a) "Force Majeure Event" shall mean any cause beyond the reasonable
control of, and not due to the fault or negligence of the Company or which by the exercise of due
diligence by Company, it is unable to overcome, including, as applicable, acts of the non-
affected party, drought, flood, landslide, earthquake, hurricane, tornado, storm or other unusually
adverse weather condition, fire, lightning, epidemic, war, blockade, riot, civil disturbance,
famine, accident, sabotage, explosions, theft, casualty, recall, embargo, injunction, shortages of
rolling stock, third party strikes, lockouts or other third party labor difficulties, restrictions or
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restraints imposed by a change in the law by the federal, state or local government or regulatory
authority that would prohibit or materially interfere with the contemplated Tower Operation
upon all or any material portion of the Facility, a release of a hazardous material by a party other
than Company which prohibits or materially interferes with the contemplated Tower Operation,
unforeseen subsurface conditions, orders or judgments of any governmental entity, the absence,
suspension, termination, interruption, delay in issuance, denial, or failure of renewal of any
permit, or any changes in law which prohibits or materially interferes with the contemplated
Tower Operation. Force Majeure includes an act or failure of a third party to furnish materials or
equipment to Company, if such failure arises as a result of a Force Majeure Event which
prohibits or materially interferes with the contemplated Tower Operation.
(b) If Company is affected by any event described in Paragraph 20(a) which prohibits
or materially interferes with the contemplated Tower Operation, Company shall promptly upon
learning of such event, give written notice to City stating the nature of the event, its anticipated
duration, how and in what manner the event prohibits or materially interferes with the
contemplated Tower Operation, and any action taken by Company to amend or minimize its
effect.
(c) Upon the occurrence of a Force Majeure Event, the Employment Commitment
Date, the Repayment Period, or both may be extended by the duration of delay caused by the
Force Majeure Event. Over the life of this Agreement, all of the extensions, when taken together
in the aggregate, cannot exceed 12 months. The period of time attributable to each such
extension shall be tacked to the end of the Repayment Period and each party's performance, and
each milestone or deadline, contemplated hereunder shall be adjusted accordingly. Without
limiting the generality of the foregoing and by way of example only, if, as a result of a Force
Majeure Event, Company has extended the Repayment Period by 2 months, the commencement
date of each remaining Quarter will be delayed by 2 months. Consequently, each remaining
"Quarter" may not follow calendar quarters (i.e., January to March, April to May, June to
September, etc.). As another example, if, during construction of the wind turbine tower
manufacturing facility, Company experiences a Force Majeure Event, it may delay the
Employment Commitment Date in accordance herewith. As used herein throughout, the terms
"Repayment Period" and"Quarter" shall include any extensions made thereto.
21. Notwithstanding this 2016 Agreement, the terms and conditions of the 2008
Agreement and 2009 Agreement between the Parties, shall remain in full force and effect.
Executed at Pueblo, Colorado, the day and year first above written.
Pueblo, a Munici r.1 Corpora
[ SEAL ]
Attest: Pe ' ; � By I1II1I ►.0i1 — ` __
City rk 444-�Lo,�;.� o the City Council
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VESTAS TOWERS AMERICA, INC.
a Delaware Corporation
By C/ /�
STATE OF COLORADO )
) ss.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before me this 26th day of September, 2016
by Stephen G. Nawrocki as President of the City Council and Gina Dutcher as City Clerk of
Pueblo, a municipal corporation.
Witness my hand and official seal.
My commission expires: 7/ 0/c'70
TAMMY A MARTINEZ ,.....„._4_94-(.4410t.L.�9 a.� .7A-
[ SEAL ] NOTARY PUBLIC
STATE OF COLORADO Notary Public (2
NOTARY ID 20184028200
MY COMMISSION EXPIRES 01/2612020
STATE OF C D )
COUNTY OF Qu e.soi )
The foregoing instrument was acknowledged before me this I S' day of
Ec-kgm,1,0a( , 2016 by Antony J. Knopp as President of Vestas Towers America, Inc, a
Delaware corporation.
Witness my hand and official seal.
My commission expires J.)11110°1.9
-;)[ SEAL ] KELLY SARTOR NO
ET
ARY PUBLIC
STA OF COLORADO Notary Pu/lic
NOTARY ID#20154023838
MY COMMISSION EXPIRES JUNE 17,2019
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Reception 2049679
09/29/2016 03:31:02 PM
FIRST AMENDMENT TO DEED OF TRUST
This First Amendment to Deed of Trust ("First Amendment") dated effective as of
September 26, 2016, amends to the extent provided herein that certain Deed of Trust ("Deed of
Trust") dated February 27, 2009, granted by Vestas Towers America, Inc., a Delaware
corporation(the "Grantor") to the public trustee of the county in which the following property
(the "Subject Property") is situated, in the State of Colorado:
See attached Exhibit A.
The Deed of Trust was recorded in the records of the Pueblo County Clerk and Recorder on
March 5, 2009 at Reception No. 1797882.
RECITALS
WHEREAS, as referenced therein, the Deed of Trust was granted by Grantor to secure
Vestas Towers America, Inc.'s performance of all obligations under that certain agreement dated
August 25, 2008 between Vestas Towers America, Inc. and the City of Pueblo (the "2008
Agreement"). The City of Pueblo is the beneficiary under the Deed of Trust and this First
Amendment; and
WHEREAS Vestas Towers America, Inc. and the City of Pueblo have entered into an
agreement dated September 26, 2016 (the "2016 Agreement") whereby the City of Pueblo (also
referred to as "Pueblo, a Municipal Corporation" or the "City") will advance to and for the
benefit of Vestas Towers America, Inc. funds in the amount of$2,484,000 (referenced in the
2016 Agreement as the "City Funds"), subject to and contingent upon the conditions and
covenants set forth in the 2016 Agreement with which Vestas Towers America, Inc. agrees to
comply and perform; and
WHEREAS, this First Amendment is hereby executed by Grantor to secure the
obligations of Vestas Towers America, Inc. to the City of Pueblo under the 2016 Agreement.
NOW THEREFORE, Grantor hereby agrees as follows:
1. The Deed of Trust, as amended by this First Amendment, shall continue to secure
the obligations of Vestas Towers America, Inc. to the City of Pueblo under the 2008 Agreement.
2. The Deed of Trust, as amended by this First Amendment, shall also secure the
obligations of Vestas Towers America, Inc. to the City of Pueblo under the 2016 Agreement.
3. Except as modified in this First Amendment, all other terms and provisions of the
Deed of Trust shall remain in full force and effect as written.
2049679 TD 09/29/2016 03:31:02 PM
Page: 2 of 2 R 16.00 D 0.00 I 16.00
Gilbert Ortiz Clerk/Recorder, Pueblo County. Co
®III l�I � � i'tI?II�LR?,eUI 4ILII't II
Grantor: Vestas Towers America, Inc., a Delaware corporation
By
:..ia.IFP7 oopp, P -sic
STATE OF 6 O )
) ss.
COUNTY OF2v eb 1D
The foregoing instrument was acknowledged before me this 1 day of Sep-1-es be
, 2016 by Anthony J. Knopp, as President of Vestas Towers America, Inc., a Delaware
corporation.
Witness my hand and official seal.
My commission expires: t 7 apt 9.
KELLY SARTOR ' '� A
SEAL NOTARY PUBLIC , / w- �-�
y
STATE OF COLORADO Notary 'u.lj
NOTARY ID#20154023838
MY COMMISSION EXPIRES JUNE 17,2019