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RESOLUTION NO. 13889
A RESOLUTION APPROVING A LOAN OF SEVEN HUNDRED
FIFTY THOUSAND DOLLARS ($750,000) TO BIG R
PROPERTIES, LLC, A COLORADO LIMITED LIABILITY
COMPANY AND AN AFFILIATE OF BIG R HOLDINGS, INC., A
COLORADO CORPORATION, RELATING TO A JOB CREATING
CAPITAL IMPROVEMENT PROJECT, TRANSFERRING SEVEN
HUNDRED FIFTY THOUSAND DOLLARS ($750,000) FROM THE
1992-2021 SALES AND USE TAX CAPITAL IMPROVEMENT
PROJECTS FUND AND GRANTING A VARIANCE FROM THE
CRITERIA AND STANDARDS ESTABLISHED BY SECTION 14-4-
85.3 (b) (7) OF THE PUEBLO MUNICIPAL CODE
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The City Council finds and determines that the expenditure of $750,000 for a job creating
capital improvement project with Big R Properties, LLC, a Colorado limited liability company
(“Properties”) and Big R Holdings, Inc, a Colorado Corporation (“Holdings”), is for a public purpose
and in furtherance of a municipal function and will create employment opportunities justifying the
expenditure of public funds.
SECTION 2.
The City Council further finds that the incentives hereby granted to Properties seemingly
fail to meet the criteria and standards established by PMC Sec. 14-4-85.3(b)(7). However, the
City Council further finds and concludes that PMC Sec. 14-4-85.3(c) of the Criteria Ordinance
provides that the City Council “may grant a variance” of the requirements “if the City Council
determines in its sole discretion that the project will create employment for new employees
justifying the expenditure of funds.”
SECTION 3.
The City Council further finds and concludes that good cause exists to grant Properties a
variance from the criteria and standards established by Section 14-4-85.3(b)(7) for the following
two reasons:
1. Properties and Holdings have fully complied with all of previous
employment commitments.
2. The interest payments on the 02-12-18 Promissory Note, at the end of its
ten-year term, shall be approximately $250,000 (subject to reductions for prepayments). The
interest payments can be deposited in the City’s Capital Buildings Fund.
SECTION 4.
Funds in the aggregate amount of $750,000 are hereby authorized to betransferred,
expended and made available out of the 1992-2021 Sales and Use Tax Capital Improvement
Projects Fund for the sole purpose of the job creating capital improvement project authorized
herein. The funds hereby authorized to be transferred and expended shall be released, disbursed
and paid by the City’s Director of Finance as specified herein.
SECTION 5.
The officers and staff of the City are authorized and directed to perform any and all acts
consistent with the intent of this Resolution which are necessary or desirable to implement the
loan transaction described herein.
SECTION 6.
This Resolution shall become effective immediately upon final passage.
INTRODUCED February 12, 2018
BY: Ed Brown
MEMBER OF CITY COUNCIL
APPROVED:
PRESIDENT OF CITY COUNCIL
ATTESTED BY:
ACTING DEPUTY CITY CLERK
City Clerk’s Office Item # Q-1
Background Paper for Proposed
Resolution
COUNCIL MEETING DATE: February 12, 2018
TO: President Christopher A. Nicoll and Members of City Council
CC: Sam Azad, City Manager
VIA: Brenda Armijo, Acting City Clerk
FROM: Daniel C. Kogovsek, City Attorney
SUBJECT: A RESOLUTION APPROVING A LOAN OF SEVEN HUNDRED FIFTY
THOUSAND DOLLARS ($750,000) TO BIG R PROPERTIES, LLC, A COLORADO
LIMITED LIABILITY COMPANY AND AN AFFILIATE OF BIG R HOLDINGS, INC.,
A COLORADO CORPORATION, RELATING TO A JOB CREATING CAPITAL
IMPROVEMENT PROJECT, TRANSFERRING SEVEN HUNDRED FIFTY
THOUSAND DOLLARS ($750,000) FROM THE 1992-2021 SALES AND USE TAX
CAPITAL IMPROVEMENT PROJECTS FUND AND GRANTING A VARIANCE
FROM THE CRITERIA AND STANDARDS ESTABLISHED BY SECTION 14-4-
85.3 (b) (7) OF THE PUEBLO MUNICIPAL CODE
SUMMARY:
Attached is a Resolution approving a loan of $750,000 to Big R Properties, LLC, a Colorado
limited liability company (the “Properties”).
PREVIOUS COUNCIL ACTION:
City Council has approved Employment Agreements with Big R Holdings, Inc., a Colorado
corporation (“Holdings”) an affiliate of Properties, in 2009, 2013 and 2016 as described below.
BACKGROUND:
In 2009, City Council granted Holdings economic incentives in the amount of $564,000 in
exchange for the creation of 40 full-time primary jobs at a distribution center and office building
located at 350 Keeler Parkway in the Pueblo Airport Industrial Park. In 2013, City Council granted
Holdings an additional $600,000 in exchange for the creation of 30 additional full-time primary
jobs at 350 Keeler Parkway. The 2013 Employment Agreement which obligates Holdings to
employ seventy (70) full-time employees, remains in full force and effect.
In 2016, the City Council approved the expansion and relocation of Holdings’ distribution center
and administrative offices from 350 Keeler Parkway to 1 McDonnell Douglas Street (the former
“Boeing Building”) in the Airport Industrial Park. Holdings agreed to hire thirty-three (33) new full-
time employees (for a total of 103). On February 1, 2018, the City sold 1 McDonnell Douglas
Street (n/k/a 100 Big R Street) to Properties and the City purchased 350 Keeler Parkway from
Properties. On February 1, 2018, Properties delivered to the City a Promissory Note in the
amount of $6,856,000 with an adjustable interest rate thereon computed at the “prime rate” of
Wells Fargo Bank, NA plus one percent (1%). The 02-01-18 Promissory Note obligates the
Company to make monthly “interest only” payments for its ten-year term. At the conclusion of the
ten-year term, the entire principal balance is due and payable by Properties to the City. Pursuant
to PMC Sec. 14-4-85.3 (c), on November 28, 2016, by Resolution No. 13572, the City Council
granted Properties a waiver of the requirements of PMC 14-4-85.3 (b) (7), which would have
required that interest on the loan to Properties be calculated by using the “prime rate” of Wells
Fargo Bank, NA plus three percent (3%), rather than the “prime rate” plus one percent (1.0%)
provided for in the 02-01-18 Promissory Note.
FINANCIAL IMPLICATIONS:
The attached Resolution approves a loan from the City to Properties on the following terms and
conditions:
Promissory Note in the principal amount of $750,000 with an adjustable interest rate
computed at the “prime rate” of Wells Fargo Bank, NA plus one and one-half percent
(1.5%). The 02-12-18 Promissory Note shall obligate Properties to make principal and
interest payments for its ten-year term. At the conclusion of the ten-year term, the principal
balance shall be paid in full.
The interest rate shall be adjusted annually to reflect changes in the “prime rate” of Wells
Fargo Bank, N.A. commencing on the first annual anniversary date of the 02-12-18
Promissory Note.
The 02-12-18 Promissory Note (like the 02-01-18 Promissory Note) shall be secured by a
first priority deed of trust to 100 Big R Street, Pueblo, Colorado 81001, which security
interest shall be created through an amendment to the deed of trust on this property filed
in connection with the 02-01-18 Promissory Note. Properties may elect to prepay the 02-
12-18 Promissory Note in full or in part at any time.
PMC Sec.14-4-85.3(b)(7) anticipates that interest on loans made by the City shall be calculated
by using the “prime rate” of Wells Fargo Bank, NA plus three percent (3%) rather than the “prime
rate” plus one and a half percent (1.5%) provided for in the attached 02-12-18 Promissory Note.
However, PMC Sec. 14-4-85.3(c) of the Criteria Ordinance provides that the City Council “may
grant a variance” of these requirements “if the City Council determines in its sole discretion that
the project will create employment for new employees justifying the expenditure of funds.”
City staff is recommending that City Council grant Properties the requested interest rate variance
for two reasons:
1. Properties and Holdings have fully complied with all of its previous employment
commitments.
2. The interest payments on the 02-12-18 Promissory Note, at the end of its ten-year
term shall be approximately $250,000, subject to reductions for prepayments. The interest
payments can be deposited in the City’s Capital Buildings Fund.
BOARD/COMMISSION RECOMMENDATION:
Not applicable to this Resolution.
STAKEHOLDER PROCESS:
Not applicable to this Resolution.
If this Resolution is not approved, the Company will be delayed in its renovation of its distribution
and office center located at the Airport Industrial Park.
RECOMMENDATION:
The Pueblo Economic Development Corporation recommends approval of this Resolution.
Attachments:
Proposed Resolution; proposed Promissory Note; and proposed Amendment to
Deed of Trust.
PROMISSORY NOTE
Principal Amount: U.S. $750,000.00 Date of Note: February 12, 2018
FOR VALUE RECEIVED, the undersigned Big R Properties, LLC, a Colorado
limited liability company, hereinafter referred to as "Borrower" and its successors in
interest, promises to pay to the City of Pueblo, a Municipal Corporation, hereinafter
referred to as the "Note Holder", the principal sum of Seven Hundred Fifty Thousand
and No/100 Dollars (U.S. ($750,000.00), together with per annum interest thereon from
the date hereof until paid in full, calculated at the "prime rate" of Wells Fargo Bank, N.A.
plus one and one-half percent (1.5%). Annual adjustments of the interest rate will
commence on the first anniversary date of this Promissory Note.
Borrower shall make monthly payments of combined principal and interest in the
amounts set forth on the amortization schedule attached hereto as Exhibit A, payable
on the first day of each month while any principal is outstanding hereunder, with the first
such payment to be made March 1, 2018. All payments of principal and interest shall
be paid in full on February 1, 2028 (the "Maturity Date"). All payments of principal and
interest hereunder, provided payment is made in accordance herewith, shall be payable
at the Note Holder's office at 1 City Hall Place, Pueblo, Colorado, 81003, or such other
place as Note Holder may designate.
This Promissory Note and all principal and interest payable hereunder are
secured by that certain First Amendment to Deed of Trust ("Deed of Trust") of even date
herewith upon real property, and all improvements thereon, situated in the County of
Pueblo, State of Colorado and described more particularly as:
Lots 46 and 47, Pueblo Memorial Airport Industrial Park Subdivision, Pueblo
County, State of Colorado, according to the recorded plat thereof filed in the
records of the Pueblo County Clerk and Recorder,
also known by street and number as 100 Big R Street (formerly known as 1 McDonnell
Douglas Street), Pueblo, CO 81001.
The Borrower reserves the right to prepay all or any part of the principal owing on
this Note at any time or times prior to maturity without notice or payment of any
premium or penalty. Upon any such prepayments, the amortization schedule for this
Note shall be updated as necessary to reflect the then-outstanding payments of
principal and interest.
In the event the Borrower fails to make any payment or principal or interest under
this Promissory Note within ten (10) days after receipt of written notice from the Note
Holder (such failure, a "Default"), then the entire unpaid principal hereof, together with
all accrued interest thereon, shall, at the option of the Note Holder, and without notice,
become at once due and payable and shall accrue interest at the default rate of eight
percent (8%) per annum thereafter until paid in full, and no failure by the Note Holder to
—1—
exercise such option shall be deemed or construed as a waiver of the right to exercise
the same in the event of any subsequent default or breach.
If after an uncured Default, the Note Holder deems it necessary to place this
Promissory Note in the hands of an attorney for collection by proceedings in a court of
competent jurisdiction or other action is taken by the Note Holder to enforce the
provisions of this Promissory Note, then the Borrower agrees to pay all such costs of
collection or enforcement, including but not limited to reasonable attorney fees, court
costs and all other reasonable expenses incurred in connection with such enforcement
and collection.
The Borrower hereby waives presentment, dishonor, notice of dishonor, protest
and delay. Borrower further agrees that except upon payment in full of this Promissory
Note, no release of any security for the indebtedness or extension of time for payment
of same, or any installment thereof, and no alteration, amendment or waiver of any
provision of this Promissory Note or the Deed of Trust shall in any manner, release,
discharge, modify or affect the obligations of Borrower under this Promissory Note.
This Promissory Note is made in and shall be governed by and interpreted in
accordance with the laws of the State of Colorado. The invalidity or unenforceability of
any provision of this Promissory Note or the Deed of Trust shall not affect or impair any
other provision, it being the intent of the parties in such circumstances that the
remainder of this Promissory Note or Deed of Trust be enforced to the greatest extent
practicable, and that the indebtedness be repaid.
In the event of any litigation arising under this Promissory Note or the Deed of
Trust, exclusive venue for any such litigation shall be Pueblo County, Colorado. All
such litigation shall be filed in the District Court and Borrower submits to the jurisdiction
of such District Court. Borrower hereby waives trial by jury in any action or proceeding,
or any matters whatsoever arising out of or in any way connected with this Promissory
Note or the Deed of Trust.
REST OF THIS PAGE IS LEFT INTENTIONALLY BLANK
SIGNATURE PAGE TO FOLLOW
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Executed and delivered and effective the date first above written.
BORROWER:
Big RPr..e
By: �'
Bryce favid Blain, Jr., a Manager
STATE OF COLORADO )
ss.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before me this io2 day of
/rc44to9AY 2018, by Bryce David Blain, Jr., a Manager of Big R Properties,
LLC, a Colorado limited liability company.
My commission expires: Witness my hand - d official se :
i8
NOTARY PUBLIC
MICHAEL B. GARNISH
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20144024286
MY COMMISSION EXPIRES JUNE 18,2018
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DEED OF TRUST
THIS INDENTURE ("Deed of Trust"), with an effective date of February 1, 2018,
is made between Big R Properties, LLC, a Colorado limited liability company, whose
address is 100 Big R Street (or, alternatively 1 McDonnell Douglas Street), Pueblo, CO
81001 hereinafter referred to as ("Grantor"), and the Public Trustee of the County of
Pueblo, State of Colorado hereinafter referred to as ("Public Trustee") for the benefit of
the City of Pueblo, a municipal corporation whose address is One City Hall Place,
Pueblo, CO 81003 ("City of Pueblo"or"beneficiary");
WITNESSETH THAT, WHEREAS, pursuant to an agreement dated October 1,
2009, the City of Pueblo advanced funds in the amount of $564,000.00 to Big R of
Lamar, Inc., a Colorado corporation affiliated with the Grantor, for a job creating capital
improvement project;
AND WHEREAS, Big R Holdings, Inc., a Colorado corporation affiliated with the
Grantor ("Big R Holdings") and the City of Pueblo are parties to that certain Agreement
dated December 23, 2013, a true, complete and correct copy of which is attached and
incorporated herein by reference, as Exhibit A hereto (the "2013 Agreement"), whereby
Big R Holdings agreed to comply with certain employment requirements enumerated in
the 2013 Agreement in consideration of the $564,000.00 advanced in 2009 and
additional funds in the amount of $600,000.00 subsequently advanced from the City of
Pueblo to Big R Holdings;
AND WHEREAS, the Grantor is desirous of securing payment of the Repayment
Obligation of Big R Holdings pursuant to Section 4 of the 2013 Agreement (the "2013
Repayment Obligation").
AND WHEREAS, Big R Holdings and the City of Pueblo are parties to that
certain Agreement dated November 28, 2016, a true, complete and correct copy of
which is attached and incorporated herein by reference, as Exhibit B hereto (the "2016
Agreement"), whereby Big R Holdings agreed to comply with certain employment
requirements enumerated in the 2016 Agreement in consideration of additional funds in
the amount of$1,194,000.00 advanced from the City of Pueblo to Big R Holdings;
AND WHEREAS, the Grantor is desirous of securing payment of the Repayment
Obligation of Big R Holdings pursuant to Section 4 of the 2016 Agreement (the "2016
Repayment Obligation");
AND WHEREAS, the Grantor has executed a Promissory Note, hereinafter
referred to as the "Note", dated the 1st day of February, 2018 (the "2-01-18 Note") for
the principal sum of Six Million Eight Hundred Fifty Six Thousand and No/100 Dollars
(U.S. $6,856,000.00), payable to the order of the City of Pueblo, a Municipal
Corporation, which amount is an indebtedness of Grantor payable with interest in
accordance with the terms of said Note; and,
1
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DEED OF TRUST
THIS INDENTURE ("Deed of Trust"), with an effective date of February 1, 2018,
is made between Big R Properties, LLC, a Colorado limited liability company, whose
address is 100 Big R Street (or, alternatively 1 McDonnell Douglas Street), Pueblo, CO
81001 hereinafter referred to as ("Grantor"), and the Public Trustee of the County of
Pueblo, State of Colorado hereinafter referred to as ("Public Trustee") for the benefit of
the City of Pueblo, a municipal corporation whose address is One City Hall Place,
Pueblo, CO 81003 ("City of Pueblo" or "beneficiary");
WITNESSETH THAT, WHEREAS, pursuant to an agreement dated October 1,
2009, the City of Pueblo advanced funds in the amount of $564,000.00 to Big R of
Lamar, Inc., a Colorado corporation affiliated with the Grantor, for a job creating capital
improvement project;
AND WHEREAS, Big R Holdings, Inc., a Colorado corporation affiliated with the
Grantor ("Big R Holdings") and the City of Pueblo are parties to that certain Agreement
dated December 23, 2013, a true, complete and correct copy of which is attached and
incorporated herein by reference, as Exhibit A hereto (the "2013 Agreement"), whereby
Big R Holdings agreed to comply with certain employment requirements enumerated in
the 2013 Agreement in consideration of the $564,000.00 advanced in 2009 and
additional funds in the amount of $600,000.00 subsequently advanced from the City of
Pueblo to Big R Holdings;
AND WHEREAS, the Grantor is desirous of securing payment of the Repayment
Obligation of Big R Holdings pursuant to Section 4 of the 2013 Agreement (the "2013
Repayment Obligation").
AND WHEREAS, Big R Holdings and the City of Pueblo are parties to that
certain Agreement dated November 28, 2016, a true, complete and correct copy of
which is attached and incorporated herein by reference, as Exhibit B hereto (the "2016
Agreement"), whereby Big R Holdings agreed to comply with certain employment
requirements enumerated in the 2016 Agreement in consideration of additional funds in
the amount of$1,194,000.00 advanced from the City of Pueblo to Big R Holdings;
AND WHEREAS, the Grantor is desirous of securing payment of the Repayment
Obligation of Big R Holdings pursuant to Section 4 of the 2016 Agreement (the "2016
Repayment Obligation");
AND WHEREAS, the Grantor has executed a Promissory Note, hereinafter
referred to as the "Note", dated the 1st day of February, 2018 (the "2-01-18 Note") for
the principal sum of Six Million Eight Hundred Fifty Six Thousand and No/100 Dollars
(U.S. $6,856,000.00), payable to the order of the City of Pueblo, a Municipal
Corporation, which amount is an indebtedness of Grantor payable with interest in
accordance with the terms of said Note; and,
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AND WHEREAS, the Grantor is desirous of securing performance of its
payment obligations under the 02-01-18 Note and payment of the indebtedness and
interest thereon as specified therein.
NOW THEREFORE, the Grantor, in consideration of the premises and for the
purpose aforesaid, does hereby grant, bargain, sell and convey unto the said Public
Trustee in trust until the full payment and performance of the contractual and payment
obligations of Big R Holdings under the 2013 Agreement and until the full payment and
performance of the contractual and payment obligations of Big R Holdings under the
2016 Agreement, as aforesaid, and until the full payment of Grantor's payment
obligations under the 02-01-18 Note as aforesaid, the following described real property,
to wit:
Lots 46 and 47, Pueblo Memorial Airport Industrial Park Subdivision, Pueblo
County, State of Colorado, according to the recorded plat thereof filed in the
records of the Pueblo County Clerk and Recorder,
Except and subject to: ❑ none; or ® the following matters:
See Exhibit C attached hereto
also known by street and number as 100 Big R Street (or, alternatively, 1 McDonnell
Douglas Street), Pueblo, CO 81001 (the "Real Property")
TO HAVE AND TO HOLD the same, together with all and singular privileges and
appurtenances thereunto belonging (collectively, such Real Property, privileges and
appurtenances, the "Property"), in trust nevertheless, that in case of a default by: (a) Big
R Holdings in the payment of its 2013 Repayment Obligation; (b) Big R Holdings in the
payment of its 2016 Repayment Obligation; or (c) Grantor's payment obligations under
the 02-01-18 Note, including payment of the indebtedness as specified therein or of any
interest thereon according to the tenor and effect of said Note, any of which payment
defaults are not cured within sixty (60) days after written notice specifying the default is
given by the City of Pueblo to Grantor, the beneficiary hereunder or the legal holder of
the indebtedness secured hereby may declare a violation of any of the covenants herein
contained and, subject to any statutory rights of Grantor, may elect to advertise said
property for sale and demand such sale by filing a notice of election and demand for
sale with the Public Trustee. Upon receipt of such notice of election and demand for
sale, the Public Trustee shall cause such notice to be recorded in the recorder's office
of the county in which said property is situated.
The Public Trustee shall then give public notice of the time and place of sale by
advertisement to be published for four weeks (once each week for four successive
weeks) in some newspaper of general circulation at that time published in the county or
counties in which said property is located. A copy of such notice shall be mailed to all
persons entitled to receive notice as provided by law. It shall and may then be lawful for
the Public Trustee to sell said property for the highest and best price the property will
bring in cash and to dispose of the said property (en masse or in separate parcels, as
2
the said Public Trustee may think best), together with all the right, title and interest of
the Grantor therein, at public auction at any place as may be specified by statute and
designated in the notice of sale.
The Public Trustee shall make and give to the purchaser of such property at such
sale, a certificate of purchase as required by law (a "Certificate of Purchase"). Unless
the property is redeemed, the public trustee shall execute and record a confirmation
deed to the holder of the Certificate of Purchase no less than fifteen days after the
expiration of all redemption periods and the receipt of all statutory fees and costs.
The Public Trustee shall, out of the proceeds of such sale and after first paying
and retaining all fees, charges and costs of making said sale, pay to the beneficiary
hereunder any amounts due pursuant to the 2013 Agreement signed Big R Holdings,
the 2016 Agreement signed Big R Holdings, or under the 02-01-18 Note signed by
Grantor, as applicable, and all moneys advanced by such beneficiary for insurance,
taxes and assessments, with interest thereon at eight per cent per annum, rendering the
overplus, if any, unto those persons entitled thereto as a matter of law. Said sale as
evidenced by the confirmation deed executed and recorded by the Public Trustee shall
operate as a perpetual bar, both in law and equity, against the Grantor and all other
persons claiming the said property, or any part thereof, by, from, through or under the
Grantor. The City of Pueblo may purchase said property or any part thereof; and it shall
not be obligatory upon the purchaser at any such sale to see to the application of the
purchase money.
The Grantor covenants with and warrants to the beneficiary that on the date of
execution of this Deed of Trust, the Grantor has good title to the Real Property in fee
simple and has all right, power, and authority required to grant, bargain, sell and convey
the same in the manner and form as aforesaid; hereby fully and absolutely waiving and
releasing all rights and claims the Grantor may have in or to said Property as a
Homestead Exemption, or other exemption, under and by virtue of any act of the
General Assembly of the State of Colorado or of the United States Congress, now
existing or which may hereafter be passed in relation thereto, and that the same are
free and clear of all liens and encumbrances whatever as of the date hereof except
liens, easements, conditions, restrictions, covenants and reservations of record and
except the Permitted Exceptions listed on Exhibit C which is attached hereto and
incorporated herein by reference.
The Grantor shall timely pay all taxes and assessments levied on the Property;
any and all amounts due on account of principal and interest or other sums on any
junior encumbrances, if any; and will keep all improvements that may be on said Real
Property insured against any casualty loss, including extended coverage, with a
company or companies licensed to authorized to conduct business in the State of
Colorado with an A.M. Best rating of B+ or higher, in an amount which will yield to the
holder of the indebtedness, after reduction by co-insurance provisions of the policy, if
any, not less than the then-total indebtedness as aforesaid. Each policy shall contain a
loss payee endorsement naming the beneficiary as mortgagee and shall further provide
that the insurance may not be canceled upon less than ten days written notice to the
beneficiary. Should the Grantor fail to insure and deliver a certificate evidencing the
3
required coverage under the policies or to pay taxes or assessments as the same fall
due, or to pay any amounts payable upon junior encumbrances, if any, the beneficiary
may make any such payments or procure any such insurance, and all monies so paid
with interest thereon at the rate of eight per cent per annum shall be added to and
become a part of the indebtedness secured by this Deed of Trust and may be paid out
of the proceeds of the sale of the property if not paid by the Grantor. In addition, and at
its option, the beneficiary may declare the indebtedness secured hereby and this Deed
of Trust to be in default for failure to procure insurance or make any of the payments
required by this paragraph, to the extent such default continues for a period of thirty (30)
days after written notice thereof is delivered by beneficiary to Grantor.
If the Grantor, without beneficiary's prior written consent, hereafter sells or
transfers all or any part of the property or an interest therein, excluding a Permitted
Transfer (as defined herein) or the creation of a lien or encumbrance subordinate to this
Deed of Trust, beneficiary may, at beneficiary's option, declare all the sums secured by
this Deed of Trust to be immediately due and payable. The foregoing notwithstanding,
Grantor has the right to transfer and assign the Property upon written notice to the
beneficiary and Public Trustee to any entity that is an affiliate of Grantor, provided that (i)
Grantor shall notify the beneficiary and Public Trustee in writing of the occurrence of
such assignment prior to the assignment and shall provide a true and correct copy of
assignment and assumption agreement, together with such other documentation
supporting or evidencing said assignment as may be reasonably requested by the
beneficiary and (ii) the assignee assumes all of the assets and/or liabilities of the
Grantor by written agreement and agrees to perform all of the obligations of the Grantor
under this Deed of Trust. For purposes of this Deed of Trust, an "affiliate" shall mean
any entity controlling, controlled by, or under common control with the Grantor, whether
control is by ownership, voting rights, or through contractual rights.
IN CASE OF ANY DEFAULT hereunder that is not cured within the time
provided for cure thereof, whereby the right of foreclosure occurs hereunder, the holder
of a Certificate of Purchase shall at once become entitled to the possession, use and
enjoyment of the property aforesaid, and to the rents, issues and profits thereof, from
the accruing of such right and during the pendency of foreclosure proceedings and the
period of redemption, if any. Such possession shall at once be delivered to the holder
of said Certificate of Purchase on request. Upon refusal, delivery of such possession
may be enforced by the holder of said certificate of purchase by any appropriate civil
suit or proceeding. The holder of said Certificate of Purchase shall be entitled to seek a
Receiver for said property and of the rents, issues and profits thereof, after such
uncured default, including the time covered by foreclosure proceedings and the period
of redemption, if any. Such Receiver may be appointed by any court of competent
jurisdiction upon written notice to Grantor, and all rents, issues and profits, income and
revenue therefrom shall be applied by any Receiver appointed to the payment of the
indebtedness as aforesaid, hereby secured, according to the law and the orders and
directions of the court.
IN THE CASE OF ANY DEFAULT by Big R Holdings in the payment of its 2013
Repayment Obligation or its 2016 Repayment Obligation, or default by Grantor in
4
Grantor's payment obligations under the 02-01-18 Note and payment of the
indebtedness as specified therein, or in the payment of any interest thereon, or of a
breach or violation of any of the covenants or agreements herein by the Grantor, any of
which defaults is not cured within sixty (60) days after written notice specifying the
default is given by the City of Pueblo to Grantor, then the whole of said obligations
hereby secured and the interest thereon to the time of the sale may at once, at the
option of the legal holder thereof, become due and payable, and the said property be
sold in the manner and with the same effect as if said indebtedness had matured. If
foreclosure be made by the Public Trustee, attorney's fees in a reasonable amount for
services in the supervision of said foreclosure proceedings shall be allowed by the
Public Trustee as a part of the cost of foreclosure; and if foreclosure be made through
the courts, a reasonable attorney's fee shall be taxed by the court as a part of the cost
of such foreclosure proceedings.
ANYTHING ELSE IN THIS DEED OF TRUST TO THE CONTRARY
NOTWITHSTANDING, all tangible and intangible personal property, including without
limitation all computers, cabling, furniture, goods, inventory, racks, racking and related
equipment, other equipment, including without limitation all trade fixtures (including
items bolted to walls or flooring) (collectively, "Personal Property") located at the Real
Property is excluded from the Property secured by this Deed of Trust. All Personal
Property, whether now owned or hereafter acquired, shall remain the sole property of
Big R Holdings or Grantor, and Big R Holdings or Grantor, as applicable, shall have the
right to install or remove Trade Fixtures from the Real Property at their sole discretion at
any time and from time to time, provided that Grantor shall promptly repair any damage
associated with such removal. Grantor shall, in the event of a Default not cured within
the time provided for cure thereof and upon written demand by beneficiary or the Public
Trustee, at Grantor's sole cost and expense, remove the Trade Fixtures prior to any
sale of the Property by the Public Trustee hereunder.
REST OF THIS PAGE LEFT INTENTIONALLY BLANK
SIGNATURE PAGE TO FOLLOW
5
Executed to be effective the date first above written.
GRANTOR:
Big R Properties, LLC
t
B4/ /7y:
Adam Carroll, as Agent/Attorney-In-Fact
for Bryce David Blain, Jr., Manager
STATE OF COLORADO )
ss.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before me this ( day of
LI The
2018, by Adam Carroll, as Agent/Attorney-In-Fact for Bryce David
Blain, Jr., aManager of Big R Properties, LLC, a Colorado limited liability company.
My commission expires: Witness my hand and official seal:
1
N TARY PUBL' N AND FOR
THE STATE OF COLORADO
KRISTIE L. BACA
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID N 20114038606
MY COMMISSION EXPIRES JUNE 13,2019
6
EXHIBIT A
2013 Agreement
See attached.
7
AGREEMENT
THIS AGREEMENT entered into as of December 23, 2013 between Pueblo, a municipal
corporation(the "City") and Big R Holdings, Inc., a Colorado corporation (the "Company").
WHEREAS, Company has expressed a willingness to expand a distribution center and its
business administration offices within the City of Pueblo or the Pueblo Memorial Airport
Industrial Park, and in furtherance thereof has through the Pueblo Economic Development
Corporation made application for funds with the City, and
WHEREAS, the City has approved such application and will make funds available to
Company subject to and upon the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, City and Company agree as follows:
1. The following terms as used in this Agreement shall have the following meaning
unless the context clearly indicates otherwise:
"Continuing Guaranty" means the Continuing Guaranty attached hereto.
"Employment Commitment Date" means January 1, 2017.
"Equipment" means new business personal property and trade fixtures (including, but not
limited to forklifts, trucks, trailers, pickups, fixtures, racking, computers, office furniture, fax
machines, scanners, copiers, and other tangible personal property installed, kept, maintained and
used by Company in or in conjunction with the Facility, or a new facility, having an exhaustible
useful life of more than five (5) years which can be determined or estimated with reasonable
accuracy. "Equipment" does not mean computer software or computer software development
costs. "Equipment" 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 and other direct improvements to the Facility.
"Facility" means the distribution center and business administration offices located at the
Pueblo Memorial Airport Industrial Park, having a street address of 350 Keeler Parkway, Pueblo,
Colorado, 81001, or such other facility located within the City of Pueblo or 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.
EXHIBIT
4811-8237.5446.6
"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.
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 $600,000.00 (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 expansion of or
improvements to its Facility or a new facility or for the acquisition of Equipment by Company at
fair market value from a reputable vendor in an arms-length transaction. Acquisition of
equipment from any person or entity related to or a subsidiary of Company is not an arms-length
transaction.
(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(s) of the
governing board of Company approving this Agreement and the First Amendment to Deed of
Trust, and authorizing its officers to execute and deliver this Agreement and the First
Amendment to Deed of Trust 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 March 31, 2014, 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 Equipment 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 Equipment,
identifying the construction or remodeling or Equipment for which payment is sought, including
invoices therefore and certificates that such construction has occurred or the delivery and
installation of Equipment in the Facility, together with documentation, satisfactory to City,
establishing such Equipment has an exhaustible useful life of five (5) or more years. 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 Equipment.
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 seventy (70) Full-Time Employees at the
Facility whose annual compensation shall average at least $48,416.00. Company will use good
2
4811-8237-5446.6
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
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 seventy (70)
Full-Time Employees employed at the Facility by Company multiplied by $593.88 (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 (70 -
60)x$593.88 =$5,938.80.
(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 70 times $593.88 multiplied by
the remaining Quarters of the Repayment Period from and after the default date 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.
Except as may be agreed by the City Council in its/their sole discretion (as contemplated under
3
4811.8237-5446.6
paragraph 6(b) hereof), 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, if any is owed, 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 secured by an
appropriate Deed of Trust to real estate owned by the Company. Contemporaneously with the
execution of this Agreement, Company shall execute and deliver to City, a second mortgage
security interest in the Facility, evidenced by a First Amendment to Deed of Trust, all in form
and content approved by City's Attorney (the "First Amendment to Deed of Trust").
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
4
4811-8237-5446.6
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
81003 with a copy to City Attorney, 1 City Hall Place, Pueblo, Colorado 81003, or
(b) if to the Company, 350 Keeler Parkway, Pueblo, Colorado, 81001,
attention Adam Carroll.
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 (except for assignments to entities controlling,
controlled by or under common control of the Company, which the Company can do solely upon
providing written notice to the City) 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 retail 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,
5
4811-8237-5446.6
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.
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.
20. Company hereby assumes and agrees to pay the obligations of Big R of Lamar,
Inc. in the Agreement between the City and Big R of Lamar, Inc. dated October 1, 2009.
Company further agrees to be bound by all conditions and covenants in the Agreement between
the City and Big R of Lamar, Inc. dated October 1, 2009.
Executed at Pueblo, Colorado,the day and year first above written.
[ SEAL] Pueblo, a Municipal Corporation
6
4811-8237.5446.6
[S,E A 1.—]; - Pueblo,a Mu •_- _'.rla. :tion
• Attest:'".... I' nit` By - •! +►,
... .-y:.«.-
Cy.Clerk +e City Council
[SEAL] BIG R HOLDI GS, INC.,
a Colorado c ration
41110.`. , t By /,- ---
Name: Karla Blain Name: Bryce David Blain
Title: Secretary Title: President
7
4811.8237-5446,7
EXHIBIT B
2016 Agreement
See attached.
8
AGREEMENT
THIS AGREEMENT("2016 Agreement") entered into as of November 28, 2016
between Pueblo, a municipal corporation (the "City") and Big R Holdings, Inc., a Colorado
corporation (the "Company") and Pueblo Development Foundation, a Colorado nonprofit
corporation ("PDF").The City and Company and PDF 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
distribution center and administrative offices at the Pueblo Memorial Airport Industrial Park
pursuant to an agreement dated December 23, 2013 ("2013 Agreement");and
WHEREAS, the Parties desire that the 2013 Agreement remain in full force and effect
according to its terms and conditions;and
WHEREAS, Company has expressed a willingness to expand and relocate its distribution
center and its business administration offices within the Pueblo Memorial Airport Industrial Park
and in furtherance thereof has through the Pueblo Economic Development Corporation made
application for additional funds from the City, and
WHEREAS, in connection with its application, the Company has committed that (i)
either it or Properties shall invest not less than One Million Eight Hundred Forty Thousand
Dollars ($1,840,000) in fixed assets and other investment in a relocated distribution facility and
administrative offices within the Pueblo Memorial Airport Industrial Park and (ii)the Company
shall provide the employment described in Section 4 of this Agreement.
WHEREAS, the City has approved such application and will make additional 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:
"Effective Date"means the date of approval of this Agreement by City Council of City.
"Employment Commitment Date" means January 1,2020.
"Facility" means the distribution center and business administration offices located at the
Pueblo Memorial Airport Industrial Park, having a street address of 1 McDonnell Douglas St.,
Pueblo, Colorado,81001.
"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.
1 EXHIBIT
1 E3
"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.
"Salary" means direct compensation payable to an employee including vacation pay,
bonuses, overtime compensation and the amount of any pretax benefits paid by the employee
under flexible spending or other qualified plans. The term does not include employer paid
payroll taxes nor benefits such as employer paid health insurance.
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 Seven Million Dollars ($7,000,000.00) (the "City
Funds"),subject to and contingent upon the following conditions and covenants which Company
agrees to perform and comply with:
• Pay to the Company's affiliate, Big R Properties, LLC,a Colorado limited
liability company ("Properties"), the sum of Three Million Dollars
($3,000,000) for the purchase of the distribution center and business
administration offices located at the Pueblo Memorial Airport Industrial
Park, having a street address of 350 Keeler Parkway, Pueblo, CO 81001
("Keeler Property");
.. Disburse to PDF, for the benefit of Company, funds in an amount not to
exceed Four Million Dollars ($4,000,000) for the actual costs and
expenses of remodeling and renovating the Facility, including the costs of
design,engineering and construction services.
The disbursement for the purchase of the Keeler Property and remodeling and renovation of the
Facility are hereinafter referred to as the "City Funds." City, PDF and the Company agree to
perform and comply with the following conditions:
(a)(i) Purchase of the Keeler Property. The City agrees to disburse the above
funds after submission of the Company's written request for payment, if such request is
accompanied by any supporting documentation as required herein. The purchase of the Keeler
Property shall be governed by the Contract to Buy and Sell Real Estate,pertaining to the Keeler
Property, of even date herewith.The"closing"of the sale of the Keeler Property by Properties to
the City shall take place within thirty (30) days of the issuance of a Certificate of Occupancy for
the Facility following the remodeling and renovation of the Facility as set forth herein and the
seller's obligation to close on such sale is conditioned upon the mutual closing of the transaction
referenced in the following paragraph.
(ii) Sale of the Facility.City agrees to sell the Facility to Properties in
accordance with the terms and conditions of the Contract to Buy and Sell Real Estate pertaining
to the Facility of even date herewith.Properties will lease the Facility to the Company for use by
the Company as the Company's business administration offices and distribution center. The
"closing" of the sale of the Facility by City to Properties shall take place within thirty(30)days
2
}
of the issuance of a Certificate of Occupancy for the Facility following the remodeling and
renovation of the Facility as set forth herein and simultaneously with the closing of the
transaction referenced in the preceding paragraph.
(iii) Properties Promissory Note. At the closing of real estate transactions
referenced in clauses(ii)and (iii)above, Properties shall deliver to City a promissory note in the
principal amount of Six Million Eight Hundred Fifty Six Thousand Dollars($6,856,000.00)with
an adjustable interest rate thereon computed at the"prime rate"of Wells Fargo Bank,N.A.plus
one(1)percent.The promissory note shall obligate Properties to make monthly"interest only"
payments for its ten year term.At the conclusion of the ten year term,the entire principal balance
shall be due and payable by Properties to the City.The interest rate shall be adjusted annually to
reflect changes in the"prime rate"of Wells Fargo Bank,N.A.commencing on the first annual
anniversary date of the promissory note.The promissory note shall be secured by a first-priority
Deed of Trust to the Facility from Properties.
(b) fianund.Biddi,ng.
(i) The Company and Properties, in consultation with PDF shall
determine their needs for remodeling and renovation of the Property, and PDF (in consultation
with Company and/or Properties) shall cause plans and specifications to be prepared for the
work. The plans and specifications shall be filed with the City, but work shall not be performed
until and unless the same are approved by City, which approval shall not be unreasonably
withheld, conditioned or delayed. Additionally, PDF shall obtain the written approval of the
Company prior to any presentation of the plans and specifications to the City for the City's
approval. The remodeling and renovation of the Property in accordance with the approved plans
and specifications is hereafter referred to as the"Project".
(ii) All construction contracts for the work contemplated by the
approved plans and specifications ("Construction Contracts") shall be awarded by competitive
bidding. PDF shall invite general contractors holding Building Contractors-A (General
Unlimited) licenses having their principal place of business in the City or County of Pueblo who
are qualified and experienced to perform construction work for the Project("Local Contractors")
to submit bids. PDF may invite other qualified general contractors with their principal place of
business outside of Pueblo County, Colorado to submit bids. PDF shall assure that the same
scope of work to be bid is timely furnished to each general contractor invited to bid. For"design-
build" or other contractual arrangements, this requirement may be accomplished by a pre-bid
conference or other acceptable competitive bidding procedure which allows Local Contractors a
reasonable opportunity to participate in the competitive bidding procedures. All bids will be
received and opened publicly. PDF will use its best efforts in good faith to award the
construction contract to the lowest qualified bidder. A similar provision with respect to local
subcontractors and suppliers shall be included as part of the construction contract with the
general contractor who shall use its best efforts in good faith to engage local subcontractors and
suppliers for such construction. If the Company, its employees or agents had negotiated with a
general contractor, subcontractor or supplier with respect to the Project prior to competitive
bidding, neither the Company nor PDF shall not enter into any Construction Contract with such
general contractor, subcontractor or supplier for the Project. "Negotiate" means to discuss,
confer upon, or arrange the terms and conditions of a Construction Contract including, without
limitation, obtaining estimates of construction costs. After award, PDF shall enter into one or
3
•
more Construction Contracts for the work and cause the remodeling and renovation to be
expeditiously completed, and PDF shall timely pay all contractors for work upon the Facility.
PDF shall not allow nor suffer any mechanics liens to be filed upon the Facility and in the event
any such liens are filed, shall cause same to be promptly removed.
(iii) City Funds will be disbursed by City to PDF solely for the costs of
design, renovation and remodeling of the Property in accordance with the plans and
specifications approved by City. In the event the cost of the design, remodeling and renovation
exceeds $4,000,000 of available City Funds, such costs shall be promptly paid by Company or
Properties and not by City.
(c) Company shall file in the office of the City Clerk copies of the following:
(i)a certificate or other evidence of authority to transact business in the State of Colorado issued
by the Colorado Secretary of State for each of the Company and Properties, together with
certificates of good standing issued by the governmental jurisdiction of each of Company's and
Properties' formation, (ii)certified copies of the resolutions of the governing board of Company
(or managers, as it relates to Properties) approving (A)this Agreement; (B) the Contract to Buy
and Sell Real Estate for the Facility; and (C) the Contract to Buy and Sell Real Estate for the
Keeler Property,and authorizing its officers or manager to execute and deliver said documents in
the name of Company or Properties,as applicable, and (iii) (A)this Agreement; (B)the Contract
to Buy and Sell Real Estate for the Facility; and(C)the Contract to Buy and Sell Real Estate for
the Keeler Property executed by authorized officers of Company(or the manager of Properties).
The date of the last to occur of the filings required under (i), (ii) and (iii) of this Section 2(c)
shall be referred to herein as "Closing". If the Closing does not occur on or before March 1,
2017, or such later date as Company and City shall mutually agree, the Company and the City,
each, at its sole option, may terminate this Agreement and the Contracts to Buy and Sell Real
Estate referenced in clauses (B) and (C) above, and City and Company shall thereafter be
released and discharged from all obligations hereunder.
(d) As conditions precedent to the disbursement of City Funds for the
renovation and remodeling of the Facility (i)Company and PDF shall have obtained City's
written approval of the plans and specifications for the renovation and remodeling of the Facility,
which shall not be unreasonably withheld, conditioned or delayed; (ii)Company shall file with
the City Clerk the documents described in subsection(c) above; and (iii)PDF shall file with the
City's Director of Finance periodic written requests for payment, certified to be true and correct
by an officer of Company or PDF, representing 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
remodeling the Facility, identifying the specific work for which payment is sought, including
paid invoices therefor and certificates of delivery and installation in the Facility. PDF shall not
submit requests for payment which exceed in the aggregate$4,000,000.
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 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 thirty-three (33) new Full-Time Employees at the Facility
whose annual compensation shall average at least $51,452 in Salary and at least $64,315
including benefits. Company will use good faith efforts in accordance with its sound business
4
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"). The thirty-three (33) Full-Time
Employees must be new employees employed at the Facility, i.e. in addition to the number of
Full Time Employees employed by the Company as of the date of this Agreement.
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 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 new Quarterly Employees less than thirty-three
(33) Full-Time Employees employed at the Facility by Company multiplied by $1,616.88 (the
"Company's Quarterly Payments"). For example, if for the second Quarter of the third year after
the Employment Commitment Date such new Quarterly Employees is 30,the amount payable by
Company to City on or before the fifteenth (15th)day of the next calendar month would be(33 -
30)x$1,616.88=$4,850.64.
(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 33 times$1,616.88 multiplied by
the remaining Quarters of the Repayment Period from and after the default date plus the amount
of Company's unpaid Quarterly Payments, if any, but in no event more than $1,494,000 plus
Default Interest as herein provided Except as may be agreed by the City Council in its/their sole
5
discretion (as contemplated under paragraph 6(b) hereof), 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, if any is owed, 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 secured by a first-
in-priority Deed of Trust to the Facility.
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 hereby 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 and PDF. 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
6
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, 1 City Hall Place, 2nd Floor,
Pueblo, CO 81003 with a copy,to City Attorney, 1 City Hall Place, 3`d Floor, Pueblo, Colorado
81003,or
(b) if to the Company, 350 Keeler Parkway, Pueblo, Colorado, 81001,
attention Adam Carroll, with a copy to Maynes, Bradford, Shipps & Sheftel, LLP, Attn: Sherri
Way, 1331 Seventeenth Street, Suite 410, Denver,Colorado,80202,or
(c) if to the PDF,301 N.Main Street, Suite 210,Pueblo,Colorado 81003.
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. Company may not assign
this Agreement or any interest herein (except for assignments to entities controlling, controlled
by or under common control of the Company,which the Company can do solely upon providing
written notice to the City)without the express written consent of the City, which consent may be
arbitrarily withheld,conditioned or delayed. PDF 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 or PDF without such consent shall be null and void. However, if Company
proposed 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, then in such events,the assignment may be made with the express consent of the
City, which consent may not be unreasonably withheld. The City shall have the right to
determine that said proposed purchaser is creditworthy, has sufficient business experience in the
retail 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
and PDF represent and warrant that they and Company and PDF 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 and PDF enforceable 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 hereunder. For breach or
violation of this warranty, City shall have the right to terminate this Agreement, or recover the
7
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 any Party, its officers, agents or employees (collectively, the
"First Party") be liable to any other Party 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 the First Party or the
failure or delay of any Party other than the First 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 Parties hereby waive and discharge one another, and each
of their 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.
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.
20. Notwithstanding this 2016 Agreement, the terms and conditions of the 2013
Agreement between the City and the Company shall remain in full force and effect in accordance
with its terms.
REST OF THIS PAGE LEFT INTENTIONALLY BLANK
SIGNATURE PAGE TO FOLLOW
S
Executed at Pueblo, Colorado,the day and year first above written.
[ SEAL] Pueblo, a Municipal Corporation
Attest: By
City Clerk President of the City Council
[ SEAL ] BIG R HOLDINGS, INC.,
a Colorado corporation
Attest: By
Name: Karla Blain Name: Bryce David Blain, Jr.
Title: Secretary Title: President
PUEBLO DEVELOPMENT FOUNDATION
A Colorado Non-profit Corporation
By: ,�', ''�
Robert L. Root, President
Attest:.
•cretary
9
Executed at Pueblo, Colorado,the day and year first above written.
[ S E AL.] Pueblo r 'oi== ,0•:.:,'.
Attest: � 4. 1� By
City rk President of the City Council
[ SEAL] BIG R ! DINGS, INC.,
a Color,•o c.rporation
A 4-41911111 By
Name: Karla B -rn Name: Bryce David Blain,Jr.
Title: Secretary Title: President
PUEBLO DEVELOPMENT FOUNDATION
A Colorado Non-profit Corporation
By:
Robert L. Root, President
Attest:
Secretary
9
EXHIBIT C
Permitted Exceptions
Taxes and assessments for the year 2018 and subsequent years.
Water rights, claims or title to water.
Title to all minerals within and underlying the premises, together with all mining and drilling rights and
other rights, privileges and other immunities relating thereto. The Company makes no representation as
to the present ownership of any such interests. There may be leases, grants, exceptions or reservations
of interests that are not listed.
Any and all existing roads, highways, ditches, canals, reservoirs, wells, railroad tracks, pipelines, water
lines, power lines, telephone lines, and any and all unrecorded rights of way or easements therefore.
Easement and Right of Way Agreement in favor of Colorado Eastern Telephone and Telegraph Co.
recorded May 7, 1908 in Book 321 at Page 477 as Reception No. 158891. Partial Release recorded
September 30, 2011 as Reception No. 1887019.
License Agreement granted to The Colorado Postal - Cable Company recorded December 30, 1913 in
Book 390at Page 188 as Reception No. 202661.
Utility Easement in favor of Colorado Postal Telegraph-Cable Company recorded January 21, 1938 in
Book 849 at Page 247 as Reception No. 584415.
Quit Claim Deed in favor of United States America for the purpose of a utility easement recorded
December 11, 1942 in Book 940 at Page 63 as Reception No. 694374.
Easements, restrictions, reservations covenants, conditions, provisions and agreements set forth and
more fully described in the Quit Claim Deed recorded July 31, 1948 in Book 1074 at Page 87 as
Reception No. 189072.
Easement to Colorado Interstate Gas Company, a Delaware corporation, it's successors or assigns,
recorded February 18, 1950 in Book 1116 at Page 427 as Reception No. 859157. If found to intersect the
subject property.
Reservation as contained in Deed of Release from The United States of America, acting by and through
the Administrator of Civil Aeronautics to The City of Pueblo, a bod politic under the laws of the State of
Colorado, as recorded September 20, 1956 in Book 1309 at Page 146 as Reception No. 24198.
Reservation as contained in the Release from The United States of America, acting by the Federal
Aviation Administration to The City of Pueblo, as body corporate and politic, under the laws of the State of
Colorado, as recorded September 25, 1970 in Book 1678 at Page 155 as Reception No. 397115, and in
Deed recorded September 25, 1970 in Book 1678 at Page 159 as Reception No. 397116.
Pueblo County Board of County Commissions Resolution No. 86-Z-60 approving plat for Subdivision
Exemption No. 86-9 recorded October 30, 1986 in Book 2314 at Page 01 as Reception No. 815855.
All matters as depicted on the filed plat for Subdivision Exemption No. 86-9 recorded October 30, 1986 in
Map Book S at Page 226 as Reception No. 815856.
9
Pueblo County Board of County Commissioners Resolution No. 87-Z-8 approving the plat Subdivision
Exemption No. 87-1 recorded March 16, 1987 in Book 2337 at Page 692 as Reception No. 828001.
All matters as depicted on the filed plat for Subdivision Exemption No. 87-1 recorded March 16, 1987 in
Map Book S at Page 230 as Reception No. 828002.
Easements, restrictions, reservations covenants, conditions, provisions and agreements set forth and
more fully described in the Warranty Deed recorded July 25, 1988 in Book 2406 at Page 361 as
Reception No. 867863.
The effect of Annexation into the City of Pueblo as evidenced by Plat recorded April 6, 1990 in Book 2492
at Page 622 as Reception No. 915966.
Easements, restrictions, reservations covenants, conditions, provisions and agreements set forth and
more fully described in the Warranty Deed recorded June 6, 1994 in Book 2737 at Page 560 as
Reception No. 1046763.
Matters as depicted on the plat for Pueblo Memorial Airport Industrial Park Subdivision recorded October
11, 1995 in Book 2836 at Page 665 as Reception No. 1096136.
Note: Ratification of Plat recorded October 11, 1995 in Book 2836 at Page 683 as Reception No.
1096149.
Terms and Conditions as disclosed in the Subdivision Improvements Agreement for Pueblo Memorial
Airport Industrial Park Subdivision recorded October 11, 1995 in Book 2836 at Page 705 as Reception No.
1096167.
Easements, restrictions, reservations covenants, conditions, provisions and agreements set forth and
more fully described in the Warranty Deed recorded August 25, 2006 as Reception No. 1690590.
The affect, if any, of Assessments that may be levied by the Pueblo Conservancy District, per Notice of
an Order Approving the Amended Official Plan for the Pueblo Conservancy District, recorded August 1,
2007 as Reception No. 1736292 and Map recorded December 31, 2009 as Reception No. 1829096.
Order for Appointment of Commissioners to Serve as Board of Appraisers and Order Amending Previous
Order recorded October 9, 2012 as Reception No. 1921465.
Pueblo County Board of County Commissioners Resolution No. P&D 18-004 approving the change of
address recorded January 24, 2018 as Reception No. 2094810.
10
Reception 2096974
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FIRST AMENDMENT TO DEED OF TRUST
THIS FIRST AMENDMENT TO DEED OF TRUST ("First Amendment"), with an
effective date of February 12, 2018, is made between Big R Properties, LLC, a
Colorado limited liability company, whose address is 100 Big R Street (or, alternatively 1
McDonnell Douglas Street), Pueblo, CO 81001 hereinafter referred to as ("Grantor"),
and the Public Trustee of the County of Pueblo, State of Colorado hereinafter referred
to as ("Public Trustee") for the benefit of the City of Pueblo, a municipal corporation
whose address is One City Hall Place, Pueblo, CO 81003 ("City of Pueblo" or
"beneficiary"), and amends that certain Deed of Trust dated effective as of February 1,
2018 executed by Grantor for the benefit of the City of Pueblo and recorded at
Reception Number 2095923 in the Records of the County of Pueblo, State of Colorado
on February 5, 2018 (the "Deed of Trust"). Terms not otherwise defined in this First
Amendment to Deed of Trust shall have the meanings assigned to them in the Deed of
Trust.
WITNESSETH THAT, WHEREAS, pursuant to a Resolution adopted by the City
of Pueblo on February 12, 2018, the City of Pueblo agreed to make a loan to Grantor in
the principal amount of$750,000.00 (the "$750,000 Loan");
AND WHEREAS, the $750,000 Loan is evidenced by a promissory note dated as
of February 12, 2018 made by Grantor to the City of Pueblo in the principal amount of
$750,000 (the "02-12-18 Note")
AND WHEREAS, the Grantor is desirous of securing performance of its payment
obligations under the 02-12-18 Note and payment of the indebtedness and interest
thereon as specified therein (the "02-12-18 Repayment Obligations").
NOW THEREFORE, in consideration of the premises and for the purpose
aforesaid, the Grantor does by this First Amendment to Deed of Trust add the 02-12-18
Repayment Obligations to the existing obligations secured by the Property and the
Deed of Trust, such that from and after the date hereof until the full payment of
Grantor's payment obligations under the 02-12-18 Note as aforesaid:
In addition to any other defaults set forth in the Deed of Trust, in the case of a
default by Grantor of Grantor's payment obligations under the 02-12-18 Note (including
payment of the indebtedness as specified therein or of any interest thereon according to
the tenor and effect of said Note), which payment default is not cured within sixty (60)
days after written notice specifying the default is given by the City of Pueblo to Grantor,
the beneficiary hereunder or the legal holder of the indebtedness secured hereby may
declare a violation of any of the covenants contained hereunder or under the Deed of
Trust and, subject to any statutory rights of Grantor, may elect to take any of the actions
set forth herein or in the Deed of Trust as the same are available to the beneficiary or
the legal holder of the indebtedness secured hereby including, subject to any statutory
rights of Grantor, the election to advertise said property for sale and demand such sale
1
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Gilbert Ortiz Clerk/Recorder, Pueblo County, Co
• 11111 Fa PM, MIAMI 04I%1.0111.4 Ill 111
by filing a notice of election and demand for sale with the Public Trustee. Upon receipt
of such notice of election and demand for sale, the Public Trustee shall cause such
notice to be recorded in the recorder's office of the county in which said property is
situated.
The Public Trustee shall then give public notice of the time and place of sale by
advertisement to be published for four weeks (once each week for four successive
weeks) in some newspaper of general circulation at that time published in the county or
counties in which said property is located. A copy of such notice shall be mailed to all
persons entitled to receive notice as provided by law. It shall and may then be lawful for
the Public Trustee to sell said property for the highest and best price the property will
bring in cash and to dispose of the said property (en masse or in separate parcels, as
the said Public Trustee may think best), together with all the right, title and interest of
the Grantor therein, at public auction at any place as may be specified by statute and
designated in the notice of sale.
The Public Trustee shall make and give to the purchaser of such property at such
sale, a certificate of purchase as required by law (a "Certificate of Purchase"). Unless
the property is redeemed, the public trustee shall execute and record a confirmation
deed to the holder of the Certificate of Purchase no less than fifteen days after the
expiration of all redemption periods and the receipt of all statutory fees and costs.
The Public Trustee shall, out of the proceeds of such sale and after first paying
and retaining all fees, charges and costs of making said sale, pay to the beneficiary
hereunder any amounts due pursuant to the 2013 Agreement signed Big R Holdings,
the 2016 Agreement signed Big R Holdings, under the 02-01-18 Note signed by
Grantor, or under the 02-12-18 Note signed by Grantor, as applicable, and all moneys
advanced by such beneficiary for insurance, taxes and assessments, with interest
thereon at eight per cent per annum, rendering the overplus, if any, unto those persons
entitled thereto as a matter of law. Said sale as evidenced by the confirmation deed
executed and recorded by the Public Trustee shall operate as a perpetual bar, both in
law and equity, against the Grantor and all other persons claiming the said property, or
any part thereof, by, from, through or under the Grantor. The City of Pueblo may
purchase said property or any part thereof; and it shall not be obligatory upon the
purchaser at any such sale to see to the application of the purchase money.
The Grantor hereby covenants that (a) the warranties made to the beneficiary
under the Deed of Trust remain true as of the date of this First Amendment to Deed of
Trust; (b) the Grantor shall timely make all payments of (i) taxes and assessments
levied on the Property; (ii) any and all amounts due on account of principal and interest
or other sums on any junior encumbrances, if any; and (iii) will keep all improvements
that may be on said Real Property insured in accordance with the requirements for
insurance set forth in the Deed of Trust.
IN THE CASE OF ANY DEFAULT by the Grantor in Grantor's payment
obligations under the 02-12-18 Note and payment of the indebtedness as specified
therein, or in the payment of any interest thereon, or of a breach or violation of any of
2
the covenants or agreements herein by the Grantor, any of which defaults is not cured
within sixty (60) days after written notice specifying the default is given by the City of
Pueblo to Grantor, then the whole of said obligations hereby secured and the interest
thereon to the time of the sale may at once, at the option of the legal holder thereof,
become due and payable, and the said property be sold in the manner and with the
same effect as if said indebtedness had matured. If foreclosure be made by the Public
Trustee, attorney's fees in a reasonable amount for services in the supervision of said
foreclosure proceedings shall be allowed by the Public Trustee as a part of the cost of
foreclosure; and if foreclosure be made through the courts, a reasonable attorney's fee
shall be taxed by the court as a part of the cost of such foreclosure proceedings.
ANYTHING ELSE IN THIS FIRST AMENDMENT TO DEED OF TRUST TO THE
CONTRARY NOTWITHSTANDING, the Deed of Trust shall remain in full force and
effect in accordance with its terms, except as expressly modified by the terms of this
First Amendment to Deed of Trust.
REST OF THIS PAGE LEFT INTENTIONALLY BLANK
SIGNATURE PAGE TO FOLLOW
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Gilbert Ortoiz ClerRk/R00ecorderD 0.00 T 138.00
. Pueblo County, Co
1111 lMrr r11,�Zi�li f 'c14�'.Pkti.i1 ".f I ,Rhf',I kaki III II
3
Executed to be effective the date first above written.
GRANTOR:
Big R Properties, LLC
By: ��
Y /
Bryce David Blain, Jr.,;-1V-1 _,anager
STATE OF COLORADO )
ss.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before me this 42 day of
Aggq,gey 2018, by Bryce David Blain, Jr., a Manager of Big R Properties,
LLC, a Colorado limited liability company.
My commission expires: Z 0o ir3 Witness my hand and official seal:
4%1
NOTARY PUBLIC IN AND FOR
THE STATE OF COLORADO
MICHAEL B.GARNISH
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20144024286
MY COMMISSION EXPIRES JUNE 18,2018
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Gilbert Ortiz7;lerk/Recorder Pueblo Conty, co
■111�1r.t/2 "���1�1I41%1P, 4lic: �1pftwarlyi, •I III
4
EXHIBIT A
2013 Agreement
See attached.
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Gilbert Ortiz Clerk/Recorder. Pueblo County, Co
VIII [MI6' 116141; 11,111,Iii'a' tiK'evW1',tyi1I III
5
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Gilbert Ortofiz2Clerk/R138ecorder00D, Pueblo Count13y, Co
VIII RP'rkr+fL40111 ill?Ai iVkaMYL�h
AGREEMENT
THIS AGREEMENT entered into as of December 23, 2013 between Pueblo, a municipal
corporation(the "City") and Big R Holdings, Inc., a Colorado corporation (the "Company").
WHEREAS, Company has expressed a willingness to expand a distribution center and its
business administration offices within the City of Pueblo or the Pueblo Memorial Airport
Industrial Park, and in furtherance thereof has through the Pueblo Economic Development
Corporation made application for funds with the City, and
WHEREAS, the City has approved such application and will make funds available to
Company subject to and upon the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, City and Company agree as follows:
1. The following terms as used in this Agreement shall have the following meaning
unless the context clearly indicates otherwise:
"Continuing Guaranty" means the Continuing Guaranty attached hereto.
"Employment Commitment Date" means January 1, 2017.
"Equipment" means new business personal property and trade fixtures (including, but not
limited to forklifts, trucks, trailers, pickups, fixtures, racking, computers, office furniture, fax
machines, scanners, copiers, and other tangible personal property installed, kept, maintained and
used by Company in or in conjunction with the Facility, or a new facility, having an exhaustible
useful life of more than five (5) years which can be determined or estimated with reasonable
accuracy. "Equipment" does not mean computer software or computer software development
costs. "Equipment" 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 and other direct improvements to the Facility.
"Facility" means the distribution center and business administration offices located at the
Pueblo Memorial Airport Industrial Park, having a street address of 350 Keeler Parkway, Pueblo,
Colorado, 81001, or such other facility located within the City of Pueblo or 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.
EXHIBIT
1 A
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1111 h011111;i'M'NIAIVillimi li 'Ii. ', �ail �YI�'� 11111
"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.
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 $600,000.00 (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 expansion of or
improvements to its Facility or a new facility or for the acquisition of Equipment by Company at
fair market value from a reputable vendor in an arms-length transaction. Acquisition of
equipment from any person or entity related to or a subsidiary of Company is not an arms-length
transaction.
(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(s) of the
governing board of Company approving this Agreement and the First Amendment to Deed of
Trust, and authorizing its officers to execute and deliver this Agreement and the First
Amendment to Deed of Trust 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 March 31, 2014, 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 Equipment 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 Equipment,
identifying the construction or remodeling or Equipment for which payment is sought, including
invoices therefore and certificates that such construction has occurred or the delivery and
installation of Equipment in the Facility, together with documentation, satisfactory to City,
establishing such Equipment has an exhaustible useful life of five (5) or more years. 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 Equipment.
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 seventy (70) Full-Time Employees at the
Facility whose annual compensation shall average at least $48,416.00. Company will use good
2
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.111 ��'FA''"1i4,rigerfAie 11'6 11111
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
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 seventy (70)
Full-Time Employees employed at the Facility by Company multiplied by $593.88 (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 (70 -
60)x $593.88 =$5,938.80.
(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 70 times $593.88 multiplied by
the remaining Quarters of the Repayment Period from and after the default date 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.
Except as may be agreed by the City Council in its/their sole discretion (as contemplated under
3
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paragraph 6(b) hereof), 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, if any is owed, 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•secured by an
appropriate Deed of Trust to real estate owned by the Company. Contemporaneously with the
execution of this Agreement, Company shall execute and deliver to City, a second mortgage
security interest in the Facility, evidenced by a First Amendment to Deed of Trust, all in form
and content approved by City's Attorney (the "First Amendment to Deed of Trust").
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
4
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11111 Kirgirif11111Lii9'11InIVI11 1101011:1 kirk�Lr�� 111 II I
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
81003 with a copy to City Attorney, 1 City Hall Place, Pueblo, Colorado 81003, or
(b) if to the Company, 350 Keeler Parkway, Pueblo, Colorado, 81001,
attention Adam Carroll.
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 (except for assignments to entities controlling,
controlled by or under common control of the Company, which the Company can do solely upon
providing written notice to the City) 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 retail 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,
5
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liii
bert Ortiz Clerk/Recorder. Pueblo County Co
I4!��l � �:1111011111C11:111111141 IN NO II I
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.
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.
20. Company hereby assumes and agrees to pay the obligations of Big R of Lamar,
Inc. in the Agreement between the City and Big R of Lamar, Inc. dated October 1, 2009.
Company further agrees to be bound by all conditions and covenants in the Agreement between
the City and Big R of Lamar, Inc. dated October 1, 2009.
Executed at Pueblo, Colorado,the day and year first above written.
[ SEAL] Pueblo, a Municipal Corporation
6
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Gilbert Orti2 Clerk/Recorder Pueblo County Co
liII IPi!p I'1l11lati1111341011. l'l+l � .W���� 11111
[S,E A IA - Pueblo,a Mu • _ •r :tion
Attyest: , By . ■+-,
C y.Clerk •e City Council
[ SEAL ] BIG RHOLD! GS, INC.,
a Colorado c ration
At — By
Name: Karla Blain Name: Bryce David Blain
Title: Secretary Title: President
7
4211-8237-5446.7
•
EXHIBIT B
2016 Agreement
See attached.
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Ell Nilr11'1FlirFtrlIW1,1, 11111
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Gilbert Ortiz Clerk/Recorder, Pueblo Count,. Co
11111 Meant!IIr1'1iilm*,1,111:1 . Pali',1:1111111,4, 11111
EXHIBIT B
2016 Agreement
See attached.
8
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Gilbert Ortiz Clerk/Recorder, Pueblo County. Co
lIII RIV'!:Uii'INhiALVI4P 'F,N0 iR iAi'111I III
AGREEMENT
THIS AGREEMENT("2016 Agreement") entered into as of November 28, 2016
between Pueblo, a municipal corporation (the "City") and Big R Holdings, Inc., a Colorado
corporation (the "Company") and Pueblo Development Foundation, a Colorado nonprofit
corporation ("PDF"). The City and Company and PDF 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
distribution center and administrative offices at the Pueblo Memorial Airport Industrial Park
pursuant to an agreement dated December 23, 2013 ("2013 Agreement");and
WHEREAS, the Parties desire that the 2013 Agreement remain in full force and effect
according to its terms and conditions;and
WHEREAS,Company has expressed a willingness to expand and relocate its distribution
center and its business administration offices within the Pueblo Memorial Airport Industrial Park
and in furtherance thereof has through the Pueblo Economic Development Corporation made
application for additional funds from the City, and
WHEREAS, in connection with its application, the Company has committed that (i)
either it or Properties shall invest not less than One Million Eight Hundred Forty Thousand
Dollars ($1,840,000) in fixed assets and other investment in a relocated distribution facility and
administrative offices within the Pueblo Memorial Airport Industrial Park and (ii)the Company
shall provide the employment described in Section 4 of this Agreement.
WHEREAS, the City has approved such application and will make additional 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:
"Effective Date"means the date of approval of this Agreement by City Council of City.
"Employment Commitment Date" means January I,2020.
"Facility" means the distribution center and business administration offices located at the
Pueblo Memorial Airport Industrial Park, having a street address of 1 McDonnell Douglas St.,
Pueblo, Colorado,81001.
"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.
EXHIBIT
B
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Gilbert Ortiz Clerk/Recorder, Pueblo County; Co
1111 k►rjI'fi����,ih� �k►, rr Miii .1111
"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.
"Salary" means direct compensation payable to an employee including vacation pay,
bonuses, overtime compensation and the amount of any pretax benefits paid by the employee
► under flexible spending or other qualified plans. The term does not include employer paid
payroll taxes nor benefits such as employer paid health insurance.
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 Seven Million Dollars ($7,000,000.00) (the "City
Funds"),subject to and contingent upon the following conditions and covenants which Company
agrees to perform and comply with:
I Pay to the Company's affiliate, Big R Properties, LLC,a Colorado limited
liability company ("Properties"), the sum of Three Million Dollars
($3,000,000) for the purchase of the distribution center and business
administration offices located at the Pueblo Memorial Airport Industrial
Park, having a street address of 350 Keeler Parkway, Pueblo, CO 81001
("Keeler Property");
•. Disburse to PDF, for the benefit of Company, funds in an amount not to
exceed Four Million Dollars ($4,000,000) for the actual costs and
expenses of remodeling and renovating the Facility, including the costs of
design,engineering and construction services.
The disbursement for the purchase of the Keeler Property and remodeling and renovation of the
Facility are hereinafter referred to as the "City Funds." City, PDF and the Company agree to
perform and comply with the following conditions:
(a)(i) purchase of the Keeler Property. The City agrees to disburse the above
funds after submission of the Company's written request for payment, if such request is
accompanied by any supporting documentation as required herein. The purchase of the Keeler
Property shall be governed by the Contract to Buy and Sell Real Estate, pertaining to the Keeler
Property, of even date herewith.The"closing"of the sale of the Keeler Property by Properties to
the City shall take place within thirty(30) days of the issuance of a Certificate of Occupancy for
the Facility following the remodeling and renovation of the Facility as set forth herein and the
seller's obligation to close on such sale is conditioned upon the mutual closing of the transaction
referenced in the following paragraph.
(ii) Sal;ofthgFacility. City agrees to sell the Facility to Properties in
accordance with the tarns and conditions of the Contract to Buy and Sell Real Estate pertaining
to the Facility of even date herewith. Properties will lease the Facility to the Company for use by
the Company as the Company's business administration offices and distribution center. The
"closing"of the sale of the Facility by City to Properties shall take place within thirty(30)days
2
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■IllR1Qllrl;I0:l111,41'faTl FOrt ErlifikWiiii 11111
of the issuance of a Certificate of Occupancy for the Facility following the remodeling and
renovation of the Facility as set forth herein and simultaneously with the closing of the
transaction referenced in the preceding paragraph.
(iii) Properties Promissory Note. At the closing of real estate transactions
referenced in clauses(ii)and(iii)above, Properties shall deliver to City a promissory note in the
principal amount of Six Million Eight Hundred Fifty Six Thousand Dollars($6,856,000.00)with
an adjustable interest rate thereon computed at the"prime rate"of Wells Fargo Bank,N.A.plus
one(1)percent.The promissory note shall obligate Properties to make monthly"interest only"
payments for its ten year term.At the conclusion of the ten year term,the entire principal balance
shall be due and payable by Properties to the City. The interest rate shall be adjusted annually to
reflect changes in the"prime rate"of Wells Fargo Bank,N.A.commencing on the first annual
anniversary date of the promissory note. The promissory note shall be secured by a first-priority
Deed of Trust to the Facility from Properties.
(b) ElaniandAdding.
(i) The Company and Properties, in consultation with PDF shall
determine their needs for remodeling and renovation of the Property, and PDF (in consultation
with Company and/or Properties) shall cause plans and specifications to be prepared for the
work. The plans and specifications shall be filed with the City, but work shall not be performed
until and unless the same are approved by City, which approval shall not be unreasonably
withheld, conditioned or delayed. Additionally, PDF shall obtain the written approval of the
Company prior to any presentation of the plans and specifications to the City for the City's
approval. The remodeling and renovation of the Property in accordance with the approved plans
and specifications is hereafter referred to as the"Project".
(ii) All construction contracts for the work contemplated by the
approved plans and specifications ("Construction Contracts") shall be awarded by competitive
bidding. PDF shall invite general contractors holding Building Contractors-A (General
Unlimited) licenses having their principal place of business in the City or County of Pueblo who
are qualified and experienced to perform construction work for the Project("Local Contractors")
to submit bids. PDF may invite other qualified general contractors with their principal place of
business outside of Pueblo County, Colorado to submit bids. PDF shall assure that the same
scope of work to be bid is timely furnished to each general contractor invited to bid. For"design-
build" or other contractual arrangements, this requirement may be accomplished by a pre-bid
conference or other acceptable competitive bidding procedure which allows Local Contractors a
reasonable opportunity to participate in the competitive bidding procedures. All bids will be
received and opened publicly. PDF will use its best efforts in good faith to award the
construction contract to the lowest qualified bidder. A similar provision with respect to local
subcontractors and suppliers shall be included as part of the construction contract with the
general contractor who shall use its best efforts in good faith to engage local subcontractors and
suppliers for such construction. If the Company, its employees or agents had negotiated with a
general contractor, subcontractor or supplier with respect to the Project prior to competitive
bidding, neither the Company nor PDF shall not enter into any Construction Contract with such
general contractor, subcontractor or supplier for the Project. "Negotiate" means to discuss,
confer upon, or arrange the terms and conditions of a Construction Contract including, without
limitation, obtaining estimates of construction costs. After award, PDF shall enter into one or
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1111 �l1?��ll�,�� , � ���P���;I" 11111
more Construction Contracts for the work and cause the remodeling and renovation to be
expeditiously completed, and PDF shall timely pay all contractors for work upon the Facility.
PDF shall not allow nor suffer any mechanics liens to be filed upon the Facility and in the event
any such liens are filed, shall cause same to be promptly removed.
(iii) City Funds will be disbursed by City to PDF solely for the costs of
design, renovation and remodeling of the Property in accordance with the plans and
specifications approved by City. In the event the cost of the design, remodeling and renovation
exceeds $4,000,000 of available City Funds, such costs shall be promptly paid by Company or
Properties and not by City.
(c) Company shall file in the office of the City Clerk copies of the following:
(i)a certificate or other evidence of authority to transact business in the State of Colorado issued
by the Colorado Secretary of State for each of the Company and Properties, together with
certificates of good standing issued by the governmental jurisdiction of each of Company's and
Properties' formation, (ii)certified copies of the resolutions of the governing board of Company
(or managers, as it relates to Properties) approving (A)this Agreement; (B)the Contract to Buy
and Sell Real Estate for the Facility; and (C) the Contract to Buy and Sell Real Estate for the
Keeler Property, and authorizing its officers or manager to execute and deliver said documents in
the name of Company or Properties,as applicable, and (iii) (A)this Agreement; (B)the Contract
to Buy and Sell Real Estate for the Facility; and (C)the Contract to Buy and Sell Real Estate for
the Keeler Property executed by authorized officers of Company(or the manager of Properties).
The date of the last to occur of the filings required under (i), (ii) and (iii) of this Section 2(c)
shall be referred to herein as "Closing". If the Closing does not occur on or before March 1,
2017, or such later date as Company and City shall mutually agree, the Company and the City,
each, at its sole option, may terminate this Agreement and the Contracts to Buy and Sell Real
Estate referenced in clauses (B) and (C) above, and City and Company shall thereafter be
released and discharged from all obligations hereunder.
(d) As conditions precedent to the disbursement of City Funds for the
renovation and remodeling of the Facility (i)Company and PDF shall have obtained City's
written approval of the plans and specifications for the renovation and remodeling of the Facility,
which shall not be unreasonably withheld, conditioned or delayed; (ii)Company shall file with
the City Clerk the documents described in subsection(c) above; and (iii) PDF shall file with the
City's Director of Finance periodic written requests for payment, certified to be true and correct
by an officer of Company or PDF, representing 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
remodeling the Facility, identifying the specific work for which payment is sought, including
paid invoices therefor and certificates of delivery and installation in the Facility. PDF shall not
submit requests for payment which exceed in the aggregate$4,000,000.
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 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 thirty-three (33) new Full-Time Employees at the Facility
whose annual compensation shall average at least $51,452 in Salary and at least $64,315
including benefits. Company will use good faith efforts in accordance with its sound business
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Gilbert Ortiz Clerk/Recorder. Pueblo County, Co 1
VIII�lr11 aNil I:I '�i?r!A'1041 �'V W' ASG�1�f. 111111
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"). The thirty-three (33) Full-Time
Employees must be new employees employed at the Facility, i.e. in addition to the number of
Full Time Employees employed by the Company as of the date of this Agreement.
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 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 new Quarterly Employees less than thirty-three
(33) Full-Time Employees employed at the Facility by Company multiplied by $1,616.88 (the
"Company's Quarterly Payments"). For example, if for the second Quarter of the third year after
the Employment Commitment Date such new Quarterly Employees is 30, the amount payable by
Company to City on or before the fifteenth(15th)day of the next calendar month would be(33 -
j 30)x$1,616.88=$4,850.64.
(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 33 times $1,616.88 multiplied by
the remaining Quarters of the Repayment Period from and after the default date plus the amount
of Company's unpaid Quarterly Payments, if any, but in no event more than $1,494,000 plus
Default Interest as herein provided Except as may be agreed by the City Council in its/their sole
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• Gilbert Ortiz Clerk/Recorder: Pueblo County. Co
gri1 111 II1
discretion (as contemplated under paragraph 6(b) hereof), 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, if any is owed, 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 secured by a first-
in-priority Deed of Trust to the Facility.
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 shalt 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 hereby 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 and PDF. 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
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Gilbert Ortiz Clerk/Recorder: Pueblo County. Co
{ 11111 IrA'11111111102141L1h:1111L U+ P:IIARII111111i i 11111
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, 1 City Hall Place, 2nd Floor,
Pueblo, CO 81003 with a copy.;to IC:ity Attorney, 1 City Hall Place, 314 Floor, Pueblo, Colorado
81003,or
(b) if to the Company, 350 Keeler Parkway, Pueblo, Colorado, 81001,
attention Adam Carroll, with a copy to Maynes, Bradford, Shipps & Sheftel, LLP, Attn: Sherri
Way, 1331 Seventeenth Street, Suite 410, Denver,Colorado,80202,or
(c) if to the PDF,301 N. Main Street, Suite 210,Pueblo,Colorado 81003.
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. Company may not assign
this Agreement or any interest herein (except for assignments to entities controlling, controlled
by or under common control of the Company, which the Company can do solely upon providing
written notice to the City)without the express written consent of the City,which consent may be
arbitrarily withheld, conditioned or delayed. PDF 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 or PDF without such consent shall be null and void. However, if Company
proposed 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, then in such events,the assignment may be made with the express consent of the
City, which consent may not be unreasonably withheld. The City shall have the right to
determine that said proposed purchaser is creditworthy, has sufficient business experience in the
retail 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
and PDF represent and warrant that they and Company and PDF 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 and PDF enforceable 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 hereunder. For breach or
violation of this warranty, City shall have the right to terminate this Agreement, or recover the
7
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Gilbert Ortiz Clerk/Recorder, Pueblo County, Co
11111!i!�.rI ILI,1,9l:h�k' t,I'i�tkE;ii 11�E'��:��G'�,'tiR�'���i4��� 1I II I
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 any Party, its officers, agents or employees (collectively, the
"First Party") be liable to any other Party 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 the First Party or the
failure or delay of any Party other than the First 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 Parties hereby waive and discharge one another, and each
of their 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.
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.
20. Notwithstanding this 2016 Agreement, the terms and conditions of the 2013
Agreement between the City and the Company shall remain in full force and effect in accordance
with its terms.
REST OF THIS PAGE LEFT INTENTIONALLY BLANK
SIGNATURE PAGE TO FOLLOW
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Gilbert Ortiz Clerk/Recorder. Pueblo County, Co
1111 .r1�. �14�'4 ��.I �tM�+Phfiii*AK
Executed at Pueblo, Colorado,the day and year first above written.
[ SEAL] Pueblo,a Municipal Corporation
Attest: By
City Clerk President of the City Council
[ SEAL] BIG R HOLDINGS, INC.,
a Colorado corporation
Attest: By —
Name: Karla Blain Name: Bryce David Blain, Jr.
Title: Secretary Title: President
PUEBLO DEVELOPMENT FOUNDATION
A Colorado Non-profit Corporation
By:
-
Robert L. Root, President
Attest: l
c/
retary
9
2096974 02/15/2018 03:48:36 PM
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Gilbert Ortiz Clerk/Recorder. Pueblo County: Co
1111 PPM Ilesir Tri wt I110111e4����104,f'J III
Executed at Pueblo, Colorado, the day and year first above written.
[ S E AL.] Pueblo . Car:c+� ;,. .
Attest: � "3,►�= By"—
City rk President of the City Council
[ SEAL] BIG R I- DINGS, INC.,
a Colo o c rporation
A 41 .��'�� �C'���`, -c . By
Name: Karla B :in Name: Bryce David Blain,Jr.
Title: Secretary Title: President
PUEBLO DEVELOPMENT FOUNDATION
A Colorado Non-profit Corporation
By:
Robert L. Root, President
Attest:
Secretary
9
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Gilbert Ortiz Clerk/Recorder, Pueblo County, Co
11111WWI: I I 11114/111FINgiiiiiiiiAllirailihNiiiiNiiiiii 1111
EXHIBIT C
Permitted Exceptions
Taxes and assessments for the year 2018 and subsequent years.
Water rights, claims or title to water.
Title to all minerals within and underlying the premises, together with all mining and drilling rights and
other rights, privileges and other immunities relating thereto. The Company makes no representation as
to the present ownership of any such interests. There may be leases, grants, exceptions or reservations
of interests that are not listed.
Any and all existing roads, highways, ditches, canals, reservoirs, wells, railroad tracks, pipelines, water
lines, power lines, telephone lines, and any and all unrecorded rights of way or easements therefore.
Easement and Right of Way Agreement in favor of Colorado Eastern Telephone and Telegraph Co.
recorded May 7, 1908 in Book 321 at Page 477 as Reception No. 158891. Partial Release recorded
September 30, 2011 as Reception No. 1887019.
License Agreement granted to The Colorado Postal - Cable Company recorded December 30, 1913 in
Book 390at Page 188 as Reception No. 202661.
Utility Easement in favor of Colorado Postal Telegraph-Cable Company recorded January 21, 1938 in
Book 849 at Page 247 as Reception No. 584415.
Quit Claim Deed in favor of United States America for the purpose of a utility easement recorded
December 11, 1942 in Book 940 at Page 63 as Reception No. 694374.
Easements, restrictions, reservations covenants, conditions, provisions and agreements set forth and
more fully described in the Quit Claim Deed recorded July 31, 1948 in Book 1074 at Page 87 as
Reception No. 189072.
Easement to Colorado Interstate Gas Company, a Delaware corporation, it's successors or assigns,
recorded February 18, 1950 in Book 1116 at Page 427 as Reception No. 859157. If found to intersect the
subject property.
Reservation as contained in Deed of Release from The United States of America, acting by and through
the Administrator of Civil Aeronautics to The City of Pueblo, a bod politic under the laws of the State of
Colorado, as recorded September 20, 1956 in Book 1309 at Page 146 as Reception No. 24198.
Reservation as contained in the Release from The United States of America, acting by the Federal
Aviation Administration to The City of Pueblo, as body corporate and politic, under the laws of the State of
Colorado, as recorded September 25, 1970 in Book 1678 at Page 155 as Reception No. 397115, and in
Deed recorded September 25, 1970 in Book 1678 at Page 159 as Reception No. 397116.
Pueblo County Board of County Commissions Resolution No. 86-Z-60 approving plat for Subdivision
Exemption No. 86-9 recorded October 30, 1986 in Book 2314 at Page 01 as Reception No. 815855.
All matters as depicted on the filed plat for Subdivision Exemption No. 86-9 recorded October 30, 1986 in
Map Book S at Page 226 as Reception No. 815856.
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20969748 02/15/2018 03:48:36 PM
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nty Co
Gilbert
KAT Pr!:11f ialii,1 144',1,!4 I1MtV italiti 111 II I
Pueblo County Board of County Commissioners Resolution No. 87-Z-8 approving the plat Subdivision
Exemption No. 87-1 recorded March 16, 1987 in Book 2337 at Page 692 as Reception No. 828001.
All matters as depicted on the filed plat for Subdivision Exemption No. 87-1 recorded March 16, 1987 in
Map Book S at Page 230 as Reception No. 828002.
Easements, restrictions, reservations covenants, conditions, provisions and agreements set forth and
more fully described in the Warranty Deed recorded July 25, 1988 in Book 2406 at Page 361 as
Reception No. 867863.
The effect of Annexation into the City of Pueblo as evidenced by Plat recorded April 6, 1990 in Book 2492
at Page 622 as Reception No. 915966.
Easements, restrictions, reservations covenants, conditions, provisions and agreements set forth and
more fully described in the Warranty Deed recorded June 6, 1994 in Book 2737 at Page 560 as
Reception No. 1046763.
Matters as depicted on the plat for Pueblo Memorial Airport Industrial Park Subdivision recorded October
11, 1995 in Book 2836 at Page 665 as Reception No. 1096136.
Note: Ratification of Plat recorded October 11, 1995 in Book 2836 at Page 683 as Reception No.
1096149.
Terms and Conditions as disclosed in the Subdivision Improvements Agreement for Pueblo Memorial
Airport Industrial Park Subdivision recorded October 11, 1995 in Book 2836 at Page 705 as Reception No.
1096167.
Easements, restrictions, reservations covenants, conditions, provisions and agreements set forth and
more fully described in the Warranty Deed recorded August 25, 2006 as Reception No. 1690590.
The affect, if any, of Assessments that may be levied by the Pueblo Conservancy District, per Notice of
an Order Approving the Amended Official Plan for the Pueblo Conservancy District, recorded August 1,
2007 as Reception No. 1736292 and Map recorded December 31, 2009 as Reception No. 1829096.
Order for Appointment of Commissioners to Serve as Board of Appraisers and Order Amending Previous
Order recorded October 9, 2012 as Reception No. 1921465.
Pueblo County Board of County Commissioners Resolution No. P&D 18-004 approving the change of
address recorded January 24, 2018 as Reception No. 2094810.
8