HomeMy WebLinkAbout13921RESOLUTION NO. 13921
A RESOLUTION APPROVING AN EMPLOYMENT
AGREEMENT AND LEASE AGREEMENT BETWEEN THE
CITY OF PUEBLO, A COLORADO MUNICIPAL
CORPORATION AND ACTIVARMOR, LLC, A COLORADO
LIMITED LIABILITY COMPANY, RELATING TO A JOB
CREATING CAPITAL IMPROVEMENT PROJECT,
AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO
EXECUTE SAID AGREEMENTS AND TRANSFERRING
TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000)
FROM THE 1992-2021 SALES AND USE TAX CAPITAL
IMPROVEMENT PROJECTS FUND FOR SUCH PROJECT
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The City Council finds and determines that the expenditure of $250,000 for the job
creating capital improvement project with ActivArmor, LLC, a Colorado limited liability
company (the “Company”) described in the attached Employment Agreement, meets and
complies with the criteria and standards established by Section 14-4-85 of the Pueblo
Municipal Code and will create employment opportunities justifying expenditure of public
funds.
SECTION 2.
The Employment Agreement dated March 12, 2018 between the City of Pueblo, a
Colorado municipal corporation (“City”) and the Company relating to a job creating capital
improvement project, a copy of which is attached hereto (“Employment Agreement”),
having been approved as to form by the City Attorney, is hereby approved. The Lease
Agreement dated March 12, 2018 between the City and the Company, a copy of which is
attached hereto (“Lease Agreement”), having been approved as to form by the City
Attorney, is hereby approved. The President of the City Council is authorized to execute
and deliver the Employment Agreement and the Lease Agreement in the name of the City
and the Acting City Clerk is directed to affix the seal of the City thereto and attest same.
SECTION 3.
Funds in the aggregate amount of $250,000 are hereby authorized to be
transferred, expended and made available out of the 1992-2021 Sales and Use Tax
Improvement Projects Fund for the sole purpose of the job creating capital improvement
project authorized herein and in the manner described in the attached Employment
Agreement and Lease Agreement. The funds hereby authorized to be transferred and
expended shall be released, disbursed and paid by the Director of Finance as specified
in the attached agreements.
SECTION 4.
The officers and staff of the City are authorized and directed to perform any and
all acts consistent with this Resolution and the attached agreements which are necessary
or desirable to implement the transactions described therein.
SECTION 3.
This Resolution shall become effective immediately upon final passage.
INTRODUCED March 12, 2018
BY: Ed Brown
MEMBER OF CITY COUNCIL
APPROVED:
PRESIDENT OF CITY COUNCIL
ATTESTED BY:
ACTING CITY CLERK
City Clerk’s Office Item # Q-2
Background Paper for Proposed
Resolution
COUNCIL MEETING DATE: March 12, 2018
TO: 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 AN EMPLOYMENT AGREEMENT AND LEASE
AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL
CORPORATION AND ACTIVARMOR, LLC, A COLORADO LIMITED LIABILITY
COMPANY, RELATING TO A JOB CREATING CAPITAL IMPROVEMENT
PROJECT, AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE
SAID AGREEMENTS AND TRANSFERRING TWO HUNDRED FIFTY
THOUSAND DOLLARS ($250,000) FROM THE 1992-2021 SALES AND USE
TAX CAPITAL IMPROVEMENT PROJECTS FUND FOR SUCH PROJECT
SUMMARY:
Attached is a Resolution approving and authorizing the President of City Council to sign an
Employment Agreement and Lease Agreement with ActivArmor, LLC, a Colorado limited liability
company (the “Company”).
PREVIOUS COUNCIL ACTION:
None.
BACKGROUND:
The Company’s business plan, as it pertains to Pueblo County, is centered on the manufacture
and sale of 3-D printed personalized body casts and splints for distribution outside of Pueblo
County. The Company has agreed to employ not less than twenty-three (23) full-time employees
at its manufacturing and distribution center.
FINANCIAL IMPLICATIONS:
In the attached Employment Agreement, the City has agreed to transfer $250,000 from the 1992-
2021 Sales and Use Tax Capital Improvement Projects Fund, as follows:
Fifty thousand dollars ($50,000) for the purchase of equipment to be used and
installed at its manufacturing facility;
A rent abatement of One Hundred Eighty-Six Thousand Four Hundred Eighty Nine
Dollars and Seventy Cents ($186,489.70) for the lease of section “1 West” of the
Pope Block Building, located at 317 North Main Street in downtown Pueblo and
the payment of the Company’s rent in the amount of Thirteen Thousand Five
Hundred Ten Dollars and Thirty Cents ($13,510.30) at the Business and
Technology Center, located at 301 N. Main Street in downtoen Pueblo.
As security, in the event of a default, the City has been granted a first lien on the manufacturing
equipment purchased with City funds. The City has also obtained a personal guaranty of both
the Employment Agreement and Lease Agreement from Diana E. Hall the owner of the Company.
BOARD/COMMISSION RECOMMENDATION:
Not applicable to this Resolution.
STAKEHOLDER PROCESS:
Not applicable to this Resolution.
ALTERNATIVES:
If this Resolution is not approved, the Company will not be able to expand its operations in
downtown Pueblo.
RECOMMENDATION:
The Pueblo Economic Development Corporation recommends approval of this Resolution.
Attachments:
Proposed Resolution; proposed Employment Agreement, proposed Lease
Agreement, proposed Security Agreement, proposed Continuing Guaranty
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into this 12th day of March, 2018 by and between
the City of Pueblo, Colorado, a Colorado municipal corporation (the "City") and ActivArmor,
LLC, a Colorado limited liability company (the "Company"). The Company and the City are
referred to collectively in this Agreement as the "Parties" and individually, without
differentiation, each as a"Party."
WHEREAS, the Company has expressed a willingness to establish a manufacturing
facility and business administration offices for the Company's business in the City of Pueblo,
and in furtherance thereof has, through the Pueblo Economic Development Corporation
("PEDCO"), made application for funds from the City; and
WHEREAS, PEDCO has recommended to the City Council that City approve such
application, and
WHEREAS, the City Council, based on PEDCO's recommendation, has approved such
application and will make funds available to Company subject to and upon the terms and
conditions of this Agreement; and
WHEREAS, Company's business plan, as it pertains to Pueblo County, is centered on the
manufacture and sale of 3D printed personalized body casts and splints for distribution outside of
Pueblo County("Company's Business"), and
WHEREAS, the City has determined that Company's Business will create primary jobs
and will not materially and substantially compete with any existing activity or business within
the City; and
WHEREAS, in connection with its application, the Company has committed to provide
the employment described in Section 4 of this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants
contained herein, and other good and valuable consideration,the receipt and sufficiency of which
is hereby acknowledged, City and Company agree as follows:
1. The following terms as used in this Agreement shall have the following meaning
unless the context clearly indicates otherwise:
"Effective Date"means the date of approval of this Agreement by City Council of City.
"Employment Commitment Date"means April 1, 2021.
"Facility" means the portion of either 301 N. Main St. Ste 205 (or other suite as agreed to
by the Pueblo Economic Development Corporation) or the Pope Block Building known as "1
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West" containing approximately 8,000 square feet on the Property wherein Company conducts
its business operations.
"Full-Time Employee" means a person who actually performs work at the Facility for not
less than thirty-two (32) hours per week at an average annual salary of not less than $60,000.00
per year plus benefits, employed by the Company. Diana E. Hall shall not be considered a Full-
Time Employee.
"Lease" means a lease in substantially the same form and content as the Leases attached
hereto as Exhibits "A" and "B."
"Per Employee Payment" means an amount equal to (a) the Total Funds Advanced
divided by 23 (i.e. the Full Time Employees subject to the Employment Commitment), divided
by(b)28 (i.e. the number of Quarters in the Repayment Period).
"Property" means either 301 N. Main St. Ste 205 (or other suite as agreed to by the
Pueblo Economic Development Corporation) or the Pope Block Building also known by street
and number as: 317 N. Main Street, Pueblo, CO 81003.
"Quarter" means three consecutive calendar months commencing January 1, April 1, July
1 and October 1 of each calendar year.
"Quarterly Employees" means the sum of the aggregate number of Full-Time Employees
on each business day of a Quarter, divided by the number of business days in such Quarter.
"Repayment Reduction" means for each Quarter an amount equal to the Total Funds
Advanced divided by 28 (i.e. the number of Quarters in the Repayment Period). For example, if
the Total Funds Advanced equals $250,000.00, the Repayment Reduction, per quarter, would be
$250,000 - 28 = $8,928.57.
2. (a) If Company is not in default under this Agreement, City will advance to or
for the benefit of Company (each such advance, a "Funds Advance" and all such cumulative
advances the "Total Funds Advanced") funds in the amount of Two Hundred Fifty Thousand
Dollars ($250,000.00) (the "City Funds"), subject to and contingent upon the Company filing 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, and (ii) certified copies of the resolutions of the governing board of Company approving
(A) this Agreement; (B) the Lease and authorizing its officers to execute and deliver said
documents in the name of Company, and (iii) (A) this Agreement; and (B) the Lease executed
by authorized officers of Company and (C) the Continuing Guaranty executed by Diana E. Hall.
The date of the last to occur of the filings required under (i), (ii) and (iii) of this Section 2(a)
shall be referred to herein as "Closing." If Closing does not occur on or before July 1, 2018, or
such later date as Company and City shall mutually agree, City, at its sole option, may terminate
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this Agreement and City and Company shall thereafter be released and discharged from all
obligations hereunder. If Company is not in default hereunder, City will, after the Effective Date
and Closing:
1. Advance to Company Fifty Thousand Dollars ($50,000) for the
purchase of equipment to be used and installed at the Facility;
2. Grant the Company a rent abatement of Two Hundred Thousand
Dollars ($200,000) as set forth in the attached Lease.
(b) As a condition precedent to the disbursement of City Funds for the
purchase of manufacturing equipment, Company shall file (i) with the City Clerk the documents
described in Paragraph 2(a) above, and (ii) and shall file 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 manufacturing equipment, identifying the specific
equipment for which payment is sought, including contracts for the purchase thereof and
certificates of delivery and installation at the Facility, to the extent applicable. Company shall
not submit requests for payment which exceed, in the aggregate, Fifty Thousand Dollars
($50,000). The City agrees to disburse funds within thirty (30) days of submission of the
Company's written request for payment, if such request is accompanied by supporting
documentation as set forth herein. Following disbursement of the City funds, the Company shall
acquire and install the Equipment; and, shall provide a report to the City within ninety (90) days
thereafter documenting the purchase and the amounts paid therefor.
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 it
will after the date of this Agreement continuously conduct its business operations and employ
Full-Time Employees at the Facility as follows: (i) during the period from the date of this
Agreement to the Employment Commitment Date, Company shall use its commercially
reasonable efforts in good faith to employ as many Full-Time Employees as reasonably justified
by its business operations, and (ii) on and after the Employment Commitment Date, Company
shall employ not less than twenty-three (23) Full-Time Employees at the Facility (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
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pay to City an amount each Quarter equal to the Quarterly Employees less than twenty-three (23)
Full-Time Employees employed at the Facility by Company multiplied by the Per Employee
Payment (the "Company's Quarterly Payments"). For example, if for the second Quarter of the
third year after the Employment Commitment Date the Total Funds Advanced equals
$250,000.00 and the number of such Quarterly Employees is 20, the amount payable by
Company to City on or before the fifteenth (15th) day of the next calendar month would be (23 -
20 x $388.20 = $1,164.60.
(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 8 percent (8%)per annum ("Default Rate")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 and their aggregate salaries for the preceding Quarter and the basis upon which
Quarterly Employees and Company's Quarterly Payment, if any, were computed, certified by an
officer of the Company to be true and correct. For purposes of verifying such employment, City
shall have access to Company's records relating to Company's employees employed at the
Facility. Except in the event of any action filed by City to enforce this Agreement, City shall
treat such information as confidential and shall not disclose (except pursuant to a subpoena or
court order) such information to any party other than those City employees who have a need to
know such information.
(d) Subject to the provisions of Paragraph 6, if Company defaults in the
performance of its Repayment Obligation and such default is not cured within sixty (60) days
after written notice specifying the default is given by City to Company, then in such event, City
may declare the entire balance of Company's Repayment Obligation due and owing together
with interest thereon from the date of default at the Default Rate, and for such purpose, the entire
balance of Company's Repayment Obligation shall be the amount calculated pursuant to
Paragraph 4(e). Company's Repayment Obligation is absolute and unconditional and shall not be
abated, reduced, diminished, modified, withheld or otherwise offset for any cause or reason
whatsoever.
(e) Except as otherwise provided in Paragraphs 7 and 13 hereof, City's
damages for breach of Company's Employment Commitment or Repayment Obligation shall not
exceed Total Funds Advanced plus interest, provided, however, that the Total Funds Advanced
shall be reduced by the Repayment Reduction for each Quarter Company meets its Repayment
Obligation during the Repayment Period by either (i) employing twenty-three (23) Quarterly
Employees at the Facility, or (ii) paying Company's Quarterly Payments as provided in
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Paragraph 4(a) above for such Quarter.
5. All City Funds advanced to Company by City under this Agreement shall be
deemed to be a debt of Company payable to City until Company performs and discharges its
obligations hereunder including its Repayment Obligation contained in Paragraph 4. The
Company's performance under this Agreement including its Repayment Obligation contained in
Paragraph 4 shall be secured by the Personal Guaranty executed by Diana E. Hall and by a
perfected first security interest in the Equipment purchased with City funds. The form and
content of the equipment security instruments shall be subject to the prior reasonable approval of
counsel for the City and the Company.
6. (a) Prior to instituting any proceeding to enforce Company's Repayment
Obligation under Paragraph 4, City shall notify Company in writing of its intention to institute
such proceedings. Company may request relief from its Repayment Obligation by delivering to
City within thirty (30) days after date of City's notice, Company's written request for relief
specifying the grounds upon which such relief is sought together with documents supporting said
grounds. Within ninety (90) days after receipt of Company's request, City will schedule a
meeting with the City Council at which Company must appear. City will notify Company of the
time and place of the meeting at least ten (10) days before the meeting. Failure of Company to
timely deliver its complete written request for relief or to appear at the scheduled meeting with
the City Council shall entitle City to immediately institute proceedings to enforce Company's
Repayment Obligation.
(b) City Council may or may not, in its sole and absolute discretion, relieve
Company, in whole or in part, from Company's Repayment Obligation. Any action taken by the
City Council relating to a request for relief shall be final and binding on Company, and not
subject to judicial review. Any such action by City Council is, and shall constitute, a legislative
measure. Nothing contained in this Paragraph 6 shall grant or be construed to grant to Company
any right or claim to relief from its Repayment Obligation or 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, and the prevailing party shall recover its costs together with all internal and out-of-pocket
expenses of any kind relating to the litigation including, but not limited to, reasonable attorney
fees. Venue for any such litigation shall be 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 full 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
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and abrogates any and all prior dealings and commitments, whether oral or written, with respect
to the subject matter of this Agreement and may not be amended or modified except in writing
signed by City and Company. Any waiver of any provision of this Agreement must be in writing
and signed by the party whose rights are being waived. No waiver of any breach of any
provision hereof shall be or be deemed to be a waiver of any preceding or subsequent breach of
the same or any other provision of this Agreement. The failure of either party to enforce or seek
enforcement of the terms of this Agreement following any breach shall not be construed as a
waiver of such breach.
9. This Agreement shall be construed in accordance with and be governed by the
laws of the State of Colorado without regard to conflict of law principles.
10. Any notices hereunder shall be sufficiently given if given in writing personally or
mailed by first class, registered, or certified mail, postage prepaid, addressed:
(a) if to City, City Manager, City of Pueblo, 1 City Hall Place, 2nd Floor,
Pueblo, Colorado, 81003, with copy to City Attorney, 1 City Hall Place, 3`d Floor,
Pueblo, Colorado, 81003, or
(b) if to the Company, Diana E. Hall, 1219 Longwood Ave., Pueblo, CO
81004
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. Notice shall be effective (i) upon receipt if
delivered personally, or(ii)three (3)business days after deposit in the mails, if mailed.
11. Time is of the essence hereof. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors and assigns, provided Company may not
assign this Agreement or any interest herein without the express written consent of the City
which will not be unreasonably withheld or delayed. Any assignment or attempted assignment
of this Agreement by Company without such consent shall be null and void. No assignment of
this Agreement or any interest herein by Company shall release or discharge Company from any
of its obligations under this Agreement unless otherwise agreed by City at the time consent to
assignment is given.
12. The persons signing this Agreement in the name of and on behalf of Company
represent and warrant that they and Company have the requisite power and authority to enter
into, execute, and deliver this Agreement, and that this Agreement is a valid and legally binding
obligation of Company enforceable against Company in accordance with its terms.
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
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upon approval of this Agreement by City or City's advancement of City Funds to Company
hereunder. For breach or violation of this warranty, City shall have the right to terminate this
Agreement, or recover the full amount of such commission, percentage, contingent fee or other
remuneration, or to seek such other remedies legally available to City, which remedies shall be
cumulative.
14. In no event shall 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.
15. If any provision of this Agreement is declared by a court of competent jurisdiction
to be invalid or unenforceable, such determination shall not affect the other provisions of this
Agreement which shall remain in full force and effect.
16. Neither party shall be, or hold itself out as, agent of the other or as joint ventures
under this Agreement.
17. Each party acknowledges that this Agreement was fully negotiated by the parties
and, therefore, no provision of this Agreement shall be interpreted against any party because
such party or its legal representative drafted such provision.
18. The provisions of this Agreement are for the exclusive benefit of the parties
hereto and their successors and permitted assigns, and no third party shall be a beneficiary, or
have any rights by virtue of,this Agreement.
19. This Agreement may be executed in any number of counterparts, and each such
counterpart shall be deemed for all purposes to be an original, and all such counterparts shall
together constitute but one and the same original.
Executed at Pueblo, Colorado, this 12th day of March, 2018.
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City of Pueb ., a unicipal Co •oration
[ SEAL] Ale/
AttesliZtw �1/ t By
n o City Clerk U P :ent of the City Council
ActivArmor, LLC
a Colorado limited liability company
By �,
N e: Diana '. Hall
Title: Manager
STATE OF COLORADO )
) ss.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before me this /Z day of Ml,g4
2018 by Diana E. Hall as Manager of ActivArmor, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires: /D 1/51/
1
[ SEAL] .�L�o.„.
yh ' sljc
JEFFREY C. SHAW
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID#19994009087
MY COMMISSION EXPIRES OCTOBER 15,2018
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LEASE
This Lease is made as of this 12th day of March, 2018,by and between the City of Pueblo,
a Colorado municipal corporation("Landlord")and ActivArmor,LLC,a Colorado limited liability
company ("Tenant").
ARTICLE 1
BASIC DATA
Each reference in this Lease to any of the terms contained in this Article or otherwise
defined in this Agreement will be construed to incorporate the definitions or data stated under that
term, defined as follows:
1.1. Building: Pope Block Building, 317 North Main Street, Pueblo, CO 81003
1.2. Leased premises: Rentable square feet(RSF)located section"1 West" of the Building,
as follows:
_
YEAR SQUARE FEET
1 4,000
2 4,667
--� 3 8,000
4-10 8,000
1.3. Term: Initial term: 120 months
Extended term: Two (2) five (5) year renewal options
1.4. Commencement date: July 1, 2019, subject to the availability of the space descried
herein. Nothing contained herein requires Landlord to hold the availability of the facility for the
Tenant.
1.5. Base rent: $12 per square foot,subject to the abatements described in Article 4 below.
Tenant also agrees to pay its pro-rata share of Building's Operating Expenses as described in
Article 4 below.
1.6. Renewal option: Tenant only upon written notice 90 days prior to termination date
1.7. Tenant improvement allowance: None
1.8. Agency disclosure and commission: None
1.9. Landlord address:
Attn: City Manager
1 City Hall Place, 2" Floor
Pueblo, CO 81003
1
Phone: (719) 553-2655
1.10. Landlord's property management representative:
Barclay Clark
Re/Max
511 West 29th Street
Pueblo, CO 81008
Phone: (719) 585-8716
1.11. Tenant address: Attn: Diana E. Hall, 4400 Rawhide Road,#154, Pueblo, CO 81008
ARTICLE 2
LEASE OF PREMISES
2.1. Leased Premises. In consideration of the mutual covenants and agreements herein
contained, Landlord hereby leases to Tenant the premises of approximately 8,000 rentable square
feet("RSF") located in the Building (the"Leased Premises")together with all appurtenances. The
Leased Premises are located in the following sections of the Building: 1 West. Notwithstanding
anything to the contrary contained in this Agreement, neither the size nor location of the Leased
Premises may be modified during the Term without Tenant's prior written consent.
2.2. Common Areas. Tenant shall have, as appurtenant to the Leased Premises, the non-
exclusive right to use, and permit its invitees to use in common with other tenants of the Building,
public lobbies,hallways, stairways, elevators, walkways necessary for access to Leased Premises,
loading areas, pedestrian sidewalks and other areas or facilities which are in the Building which
are public in nature.
ARTICLE 3
TERM
3.1. Commencement Date: 'term. This Lease shall have a ten (10) year term ("Term").
The Lease Term begins (the "Commencement Date") on July 1, 2019 and terminates on June 30,
2029 (the "Termination Date").
3.2. Options. Provided Tenant is in full compliance with terms and conditions of this
Lease, Tenant may extend the Term for an Extended Term as follows. Tenant may exercise two
(2), five (5) year renewal options with 90 days prior notice to the Landlord. The rent and other
terms and conditions of this Lease will remain unchanged for the renewal options.
ARTICLE 4
RENT AND ADDITIONAL CHARGES
4.1. Base Rent. 'T'enant's base rent for the "Perm of this Lease is Twelve Dollars ($12.00)
per square foot, subject to the following rent abatements:
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YEAR SQUARE FEET RENT PER RENT BASE RENT
RENTED SQUARE FOOT ABATED OWED
1 4,000 $12.00 $48,000.00 $0
2 4,667 $12.00 $56,000.00 $0
3 8,000 512.00 $82,489.70 $13,510.30
4-10 8,000 $12.00 $0 $96,000.00
4.2. Tenant's Obligation to Pay a Pro Rata Portion of the Operating Expenses of the
Building. Commencing on the Commencement Date,and on the first day of each month thereafter
during the Term of this Lease, as an additional charge, Tenant must pay to Landlord Tenant's
estimated pro rata share of the Building's estimated Operating Expenses for the current calendar
year, based upon the actual Operating Expenses for the prior calendar year. On or before March
1 of each year during the Term of this Lease, beginning with the Commencement Date, Landlord
shall provide Tenant with documentation which demonstrates the Building's actual Operating
Expense for the prior calendar year, along with a calculation of the difference between Tenant's
estimated pro rata Operating Expense payments for such calendar year and the Tenant's actual pro
rata share of the Operating Expense for that calendar year. In the event of an underpayment,
Tenant shall pay the difference to Landlord or Landlord shall refund the overpayment to Tenant.
Notwithstanding the foregoing, if Landlord does not supply said documentation within one
hundred eighty (180) days after the end of each calendar year, Landlord shall have forfeited its
opportunity to seek reimbursement from Tenant for any underpayment such documentation
subsequently reveals, however such limitation does not act to waive Landlord's duty to supply
Tenant with said documentation within a reasonable time thereafter. In addition,Tenant shall have
the right, at its own cost to audit Landlord's records of Operating Expenses within forty five (45)
days of receipt of said documentation and shall recover a reimbursement for any expenses
improperly accounted for and included in Operating Expenses. In the event such audit reveals
discrepancies which in the aggregate amount to more than ten percent (10%) different than that
previously reported by Landlord, then Landlord shall reimburse Tenant for all reasonable costs
associated with conducting said audit.
4.3. Operating expenses: NNN Expenses will cover the Tenant's pro rata share of the
following items:
• Maintenance and Management of the Building
• Building Utilities
• Repair of Building
• Building Property Taxes
• Building use taxes not abated through the Pueblo Urban Enterprise Zone
• Building Insurance
• Building Fire Systems
4.4. Operating expenses formula: Tenant shall pay its pro-rata share of the Operating
Expenses for the Building according to the following formula: rentable square footage ("RSF")
3
leased by the Tenant divided by 101,992 square feet(net rentable space in the Building)times total
Operating Expenses.
4.5. Tenant's Tax Obligations. Tenant shall be solely responsible for the payment of its
own tax obligations and agrees that said obligations shall not be paid as part of the Building's
Operating Expenses. Tenant's own tax obligations include, but are not limited to, sales and use
taxes, personal property taxes and possessory interest real property taxes.
ARTICLE 5
USE
5.1. Use. Tenant may use the Leased Premises for general, executive, service, sales and
administrative office purposes, including the manufacture and sale of 3D printed personalized
body casts and splints and including any uses incidental to any of the foregoing. Any change of
use by the Tenant shall require the prior written consent of the Landlord, which consent shall not
be unreasonably withheld, conditioned or delayed.
5.2. Compliance with Laws. During the Term of this Lease, Tenant shall comply with all
applicable laws, rules, regulations and ordinances of all federal, state, county and municipal
authorities having jurisdiction over the Leased Premises or the Building. During the Term of this
Lease, Landlord shall comply with all applicable laws, rules, regulations and ordinances of all
federal, state, county and municipal authorities having jurisdiction over the Building.
ARTICLE 6
ALTERATIONS AND SIGNS
6.1. Tenant's Alterations. Alterations, installations, improvements, additions or other
physical changes to the Leases Premises shall not he made by the Tenant without the prior written
consent of the Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed.
6.2. Signage. The size, location, color and design of any sign placed by the Tenant on the
Leased Premises or Building, shall be subject to the Landlord's prior written approval, not to be
unreasonably withheld, conditioned or delayed.
6.3. Liens. Tenant must keep the Leased Premises and this Lease free from any
mechanic's, materialman's, or similar liens or encumbrances, and any claims therefore for labor
or materials furnished Tenant. If Tenant fails to do so, Landlord may pay the amount or take such
other action as Landlord deems necessary to remove such claim, lien or encumbrance, without
being responsible for investigating the validity thereof. The amount so paid and costs incurred by
the Landlord will be deemed additional rent under this Lease payable upon demand, without
limitation as to other remedies available to Landlord.
6.4. Surrender. On the Termination Date of this Lease, Tenant shall quit and surrender the
Leased Premises in substantially the same condition as they were on the Commencement Date,
reasonable wear and tear excepted. Tenant may remove, but shall not be required to remove, any
4
fixtures, alterations or improvements made to the Leased Premises, provided that Tenant repairs
any damage caused by such removal. Any items of personal property not removed by Tenant on
the Termination Date of this Lease may be retained or disposed of by Landlord, at Tenant's
expense.
ARTICLE 7
INDEMNIFICATION AND INSURANCE
7.1. Landlord's Indemnity. Landlord shall defend, indemnify and save harmless Tenant
and its agents and employees against all costs(including,without limitation,reasonable attorneys'
fees), damages or claims whether for personal injury,bodily injury or property damage, during the
Term of this Lease, occurring in the Building, if caused by an act or omission by Landlord or its
agents or employees, arising out of Landlord's operations or Landlord's use or occupancy of the
Building.
7.2. Tenant's Indemnity. Tenant shall defend, indemnify and save harmless Landlord and
its agents and employees against all costs (including, without limitation, reasonable attorneys'
fees), damages or claims whether for personal injury, bodily injury or property damage, during the
Term of this Lease, occurring in the Building, if caused by an act or omission by Tenant or its
agents or employees, arising out of Tenant's operations or Tenant's use or occupancy of the
Building.
7.3. Landlord's Insurance.
7.3.1. Liability Insurance. During the Term of this Lease, Landlord must maintain
insurance covering Landlord's liability for ownership, maintenance and use of the Building,
including the Common Areas. Such insurance must provide limits of not less than$1 million with
respect to injury to any one person, $1 million with respect to any one occurrence and $500,000
with respect to property damage arising out of any one occurrence.
7.3.2 Property Insurance. Landlord must maintain "all-risk" property insurance covering
the Building against loss or damage resulting from fire or other insurable loss.
7.4. Tenant's Insurance.
7.4.1. Liability Insurance. During the Term, Tenant must maintain insurance covering
Tenant's liability for occupation and use of the Leased Premises and the Building, including the
Common Areas. Such insurance must provide limits of not less than $1 million with respect to
injury to any one person, $1 million with respect to any one occurrence and $250,000 with respect
to property damage arising out of any one occurrence.
7.4.2. Worker's Compensation Insurance. Tenant shall maintain and keep in force an all
employees compensation insurance policy as required under the laws of the State of Colorado.
7.5. Insurance Requirements. All insurance required to he carried by the parties hereunder
shall be issued with a company or companies licensed and authorized to conduct business in the
5
State of Colorado with an A.M. Best rating of B+ or higher, the parties further agree to provide
each other with copies of certificates of insurance for all policies required.
7.6. Waiver of Subrogation. The parties to this Lease hereby release each other and their
respective officers, agents, managers, directors, and employees from any and all claims and
demands for loss,damages,expense or injury to any person or the Building or to personal property
or improvements which arc caused by or result from any risk insured against under insurance
policies carried or required to be carried by the parties and in force at the time of any such loss, to
the extent such loss is covered by such parties' policies. The parties shall each obtain from their
respective insurers waivers of all rights of subrogation, which the insurer of one party might have
against the other party and Landlord and Tenant shall each indemnify the other against any loss or
expense, including reasonable attorneys' fees, resulting from the failure to obtain such waivers of
subrogation.
ARTICLE 8
ASSIGNMENT
8.1. Internal Assignments. Notwithstanding anything in this Lease to the contrary,Tenant
has the right to assign this Lease or sublet the Leased Premises, without Landlord's consent,to a
parent, subsidiary, or affiliate of Tenant, to a company that has been merged or consolidated with
Tenant, or to a company acquiring all or substantially all of Tenant's physical assets at the Leased
Premises, provided Tenant (or the resulting entity of any merger or consolidation) remains fully
liable hereunder.
8.2. Outside Assignment Requirements. It shall be necessary for Tenant to obtain
Landlord's prior, written consent to any other proposed assignment of this Lease or subletting of
the Leased Premises. However, Landlord's consent must not be unreasonably or unduly withheld,
conditioned, or delayed, provided, however, that Landlord may withhold consent thereto if in the
exercise of its sole judgment it determines that:
8.2.1. Financial Condition. The financial condition of the proposed assignee or subtenant
is not consistent with the extent of the obligations undertaken by the proposed assignment or
sublease; or
8.2.2. Proposed Use. The proposed use of the Leased Premises is not appropriate for the
Building or in keeping with the character of the existing tenancies of the Building.
ARTICLE 9
CASUALTY AND RESTORATION
9.1. Restoration. Upon any damage due to fire or other casualty, if such casualty results in
damage to more than 5% of the gross leasable area of the Building, Landlord may, in its sole
discretion, upon thirty (30)days written notice to Tenant after such casualty, terminate this Lease.
Landlord may also, in its sole discretion, undertake restoration of the Building and complete such
restoration, with due diligence, after such casualty.
6
9.2. Equitable Adjustment. Upon any damage due to fire or other casualty, whether or not
Landlord decides to undertake restoration of the Building, the parties agree that the Tenant's
obligation to pay base rent and a pro rata portion of the Operating Expenses of the Building shall
be equitably abated and apportioned from the date of such casualty until such repairs are completed
or until Tenant vacates the Leased Premises.
ARTICLE 10
DEFAULT AND REMEDIES
10.1. Tenant's Default. If Tenant (a) fails to make its monthly payment of Tenant's base
rent or a pro rata portion of the Operating Expenses for more than 10 days after Tenant receives
notice of such failure from Landlord; or (b) fails to perform or observe any other agreement or
condition contained in this Lease, and such failure is not corrected within thirty (30) days after
Tenant receives notice from Landlord of such failure, then, in addition to all other remedies
available at law or in equity, Landlord has the right to terminate this Lease and recover possession
of the Leased Premises in the manner prescribed by law.
10.2. Landlord's Default. If Landlord fails to perform or observe any agreement or
condition contained herein, and such failure is not corrected within thirty(30) days after Landlord
receives notice from Tenant of such failure,then, in addition to all other remedies available at law
or in equity, Tenant has the right to terminate this Lease.
10.3. Disputes. In the event of an unresolved dispute between Landlord and Tenant
regarding the performance by either party of an obligation or condition of this Lease,as a condition
precedent to the filing of litigation, authorized representatives of Landlord and Tenant will use
good faith and commercially reasonable efforts to resolve such disputes.
ARTICLE 11
GENERAL PROVISIONS
11.1. Notices. Notices,consents,and demands required or permitted to be given hereunder
must be in writing and be effective when received or refused,whether by hand delivery, nationally
recognized overnight courier (with evidence of receipt or refusal), or U.S. Mail (return receipt
requested), to the parties' respective Address stated in Article 1 of this Lease, or to such other
address as the parties designate by written notice to each other, and each party may identify
additional parties to receive copies of same.
11.2. Holding Over. Should Tenant hold over in possession of the Leased Premises after
the expiration of the Term, as extended, such holding over shall not be deemed to extend the Term
or renew this Lease, but this Lease will continue as a tenancy from month to month upon the terms
and conditions stated herein.
11.3. Waiver/Remedies. The failure of Landlord or Tenant to insist upon strict
performance by the other of any of the provisions of this Lease or to exercise any option herein
conferred will not be deemed as a waiver or relinquishment for the future of any such provision or
option. Except as expressly provided otherwise herein, all rights and remedies provided for herein
7
or otherwise existing at law or in equity are cumulative, and the exercise of one or more rights or
remedies by either party shall not preclude or waive its right to the exercise of any or all of the
others.
11.4. Partial Invalidity. If any provision of this Lease or the application thereof to any
person or circumstance is, at any time or to any extent, invalid or unenforceable, the remainder of
this Lease will not be affected thereby, and each such provision will be valid and will be enforced
to the fullest extent permitted by law.
11.5. Attorneys' Pees. In the case of any litigation among the parties under this Agreement,
the prevailing party will be entitled to reimbursement for its reasonable costs,including reasonable
attorneys' fees, incurred in any such dispute.
11.6. Entire Agreement. This Lease contains the entire and exclusive agreement between
the parties relating to the Leased Premises and may not be modified except by written instrument
signed by the party to be bound thereby.
11.7. Venue and Waiver of Trial by Jury. In the event of any litigation arising under this
Agreement, exclusive venue for any such litigation shall be Pueblo County, Colorado. All such
litigation shall be filed in the District Court and each party submits to the jurisdiction of such
District Court. Landlord and Tenant hereby waive trial by jury in any action, proceeding, or
counterclaim brought by either against the other,upon any matters whatsoever arising out of or in
any way connected with this Lease. Tenant's use or occupancy of the Premises, and/or any claim
of injury or damage.
11.8. Relationship of the Parties. Neither Party shall be, or hold itself out as, agent of
the other or as joint venturers or partners under this Agreement.
11.9. Drafting of Agreement. 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.
11.10. No Third-Party Beneficiaries. 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.
11.11. Counterparts. 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.
11.12. Survival. Whether or not specifically noted within any section or provision of this
Lease, any provision of this Lease which must survive termination of this Lease in order to be
effective will so survive such termination.
IN WITNESS WHEREOF, this Lease is executed and delivered as of the date first above
written.
8
TENANT:
ActivArmor, LLC
a Coloranritediliability?ompany ,
By
7
t
Name: Diana-E-.- all
Title: Manager
STATE OF COLORADO )
) ss.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before me this it day of /11 , ,
2018 by Diana E. Hall as Manager of ActivArmor, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires: 1 G 8 S 8Y '—
[ SEAL ] /7,------
[ SEAL ]
JEFFREY C. SHAW
NOTARY PUBLIC
STATE OF COLORADO otary Pu• •'
NOTARY ID# 19994009087
MY _.,i. ISSION EXPIRES OCTOBER 15,2018
LAN = /' /I
iiir
'to
C nstopher A. Nicoll, President of City Council
[ SEAL ]
Attest-I U fdQD CO"...tf
Acting City Clerk
Ap•rived to F•r'
191 /,
i tColgv- City ttorney i
C 1
9
STATE OF COLORADO
UNIFORM COMMERCIAL CODE—SECURITY AGREEMENT
Debtor:
Name: ,ActivArmor LLC,aColorado limited liability company
(Exact Legal Name Required)
Address:
Residence:
No Street City State
Business: 317 N.Main Street Pueblo CO
No. S'reet City State
Secured Party:
Name:. City of Pueblo Colorado,a Colorado municipal corporation
Address:_1 City Hall Place Pueblo CO
No. S i rest City State
Debtor,for consideration,hereby grants to Secured Party a security interest in the following property and any and all additions,
accessions and substitutions thereto or therefor(hereinafter called the"COLLATERAL"):
The equipment and other property described in Exhibit A attached hereto and incorporated herein by reference
together with all replacements,additions,accessions,substitutions and proceeds.
To secure payment of the indebtedness evidenced by certain promissory note of even date herewith,payable
to the Secured Party,or order,as follows:
the Employment Agreement dated March 12,2018 between Debtor and Secured Party and the performance of
Debtor's under the Agreement including the Repayment Obligation of$250,000.00 by Debtor to Secured Party
DEBTOR EXPRESSLY WARRANTS AND COVENANTS:
1. That except for the security interest granted hereby Debtor is,or to the extent that this agreement states that the
Collateral is to he acquired after the date hereof,will he,the owner of the Collateral free front any adverse lien,security inter-
est or encumbrances; and that Debtor will defend the Collateral against all claims and demands of all persons at anytime
claiming the sante or any interest therein.
2. The Collateral is used or bought primarily for:
E Personal,family or household purposes;
❑ Use in farming operations;
L37I Use in business.
3. That Debtor's residence,state of organization or chief executive office is as stated herein,and the Collateral will
be kept at
317 N.Main Street Pueblo Pueblo CO 81003
No.and Street City County State
4. If any of the Collateral is oil,gas,or minerals to he extracted or timber to he cut,or goods which are or arc to become
fixtures, said Collateral concerns the following described real estate situate in the N/A _— County
of N/A and State of Colorado,to wit:
No.eUCC t205. Rev.8-01. UNIFORM COMMERCIAL CODE—SECURITY AGREEMENT (Page 1 of 2) (`''i
Bradford Publishing,1743 Wazee St.,Denver,CO 80202 (303)292-2500 - www bradfordpublishing corn—eLarm
5. Promptly to notify Secured Party of any change in the location of the Collateral.
6. To pay all taxes and assessments of every nature which may be levied or assessed against the Collateral.
7. Not to permit or allow any adverse lien,security interest or encumbrance whatsoever upon the Collateral and not
to permit the same to be attached or rcplevined.
S. That the Collateral is in good condition,and that Debtor will,at Debtor's own expense,keep the same in good
condition and from time to time,forthwith,replace and repair all such parts of the Collateral as may be broken,worn out,or
damaged without allowing any lien to be created upon the Collateral on account of such replacement or repairs,and that the
Secured Party may examine and inspect the Collateral at any time,wherever located.
9. That Debtor will not use the Collateral in violation of any applicable statutes,regulations or ordinances.
10. The Debtor will keep the Collateral at all times insured against risks of loss or damage by fire(including so-called
extended coverage),theft and such other casualties as the Secured Party may reasonably require,including collision in the case
of any motor vehicle,all in such amounts,under such forms of policies,upon such terms,for such periods,and written by such
companies or underwriters as the Secured Party may approve,losses in all cases to be payable to the Secured Party and the
Debtor as their interest may appear.All policies of insurance shall provide for at least ten days'prior written notice of cancel-
lation to the Secured Party;and the Debtor shall furnish the Secured Party with certificates of such insurance or other evidence
satisfactory to the Secured Party as to compliance with the provisions of this paragraph.The Secured Party may act as attor-
ney for the Debtor in making,adjusting and settling claims under or cancelling such insurance and endorsing the Debtor's name
on any drafts drawn by insurers of the Collateral.
UNTIL DEFAULT Debtor may have possession of the Collateral and use it in any lawful manner,and upon default
Secured Party shall have the immediate right to the possession of the Collateral.
DEBTOR SHALL BE IN DEFAULT under this agreement upon the happening of any of the following events or con-
ditions:
(a) default in the payment or performance of any obligation,covenant or liability contained or referred to herein or
in any note evidencing the same;
(b) the making or furnishing of any warranty,representation or statement to Secured Party by or on behalf of Debtor
which proves to have been false in any material respect when made or furnished:
(c) loss,theft,damage,destruction, sale or encumbrance to or of any of the Collateral,or the making of any levy
seizure or attachment thereof or thereon;
(d) death,dissolution,termination of existence,insolvency,business failure,appointment of a receiver of any part of
the property of,assignment for the benefit of creditors by,or the commencement of any proceeding under any bankruptcy or
insolvency laws of,by or against Debtor or any guarantor or surety for Debtor.
UPON SUCH DEFAULT and at any time thereafter,or if it deems itself insecure, Secured Party may declare all
Obligations secured hereby immediately due and payable and shall have the remedies of a secured party under Article 9 of the
Colorado Uniform Commercial Code. Secured Party may require Debtor to assemble the Collateral and deliver or make it
available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties.
Expenses of retaking,holding,preparing for sale,selling or the like shall include Secured Party's reasonable attorney's fees
and legal expenses (including the allocated fees and expenses of in-house counsel) and such portion of the Secured Party's
overhead as it may in its reasonable judgment deem allocable to and includable in such expenses.
No waiver by Secured Party of any default shall operate as a waiver of any other default or of the same default on a
future occasion.The taking of this Security Agreement shall nut waive or impair any other security Secured Party may have
or hereafter acquire for the payment of the above indebtedness,nor shall the taking of any such additional security waive or
impair this Security Agreement;hut Secured Party may resort to any security it may have in the order it may deem proper,and
notwithstanding any collateral security,Secured Party shall retain its rights of set-off against Debtor.
All rights of Secured Party hereunder shall inure to the benefit of its successors and assigns; and all promises and
duties of Debtor shall hind Debtor's heirs,executors or administrators or Debtor's successors or assigns.If there be more than
one Debtor,their liabilities hereunder shall be joint and several.
Dated:
Debtor- — I
Colorado
Debtor's state of organization,or rf not a registered organization,chief executive officer
20161220263
Debtor's State Identification No.
No.eUCC 1205. (Page 2 of 2 1 �tf
CONTINUING GUARANTY
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, and as inducement to the City of Pueblo, a municipal corporation (the "City") to
enter into the attached Employment Agreement dated March 12, 2018 and the attached Lease
Agreement dated March 12, 2018 between City and ActivArmor LLC,a Colorado limited liability
company (the "Company") the undersigned Diana E. Hall (the "Guarantor") unconditionally
guarantees and promises to pay to City,or order,on demand, in lawful money of the United States,
the full amount of Company's Repayment Obligation described in and in accordance with the terms
and provisions of Paragraph 4 of the Employment Agreement and the full amount of the
Company's Base Rent Obligation and the Company's Obligation to Pay a Pro Rata Portion of the
Operating Expenses of the Pope Block Building described in and in accordance with the Lease
Agreement(the "Indebtedness").
This is a continuing irrevocable guaranty relating to the Indebtedness, including
successive transactions which shall either continue the Indebtedness or from time to time modify
or renew it. Any payment by Guarantor shall reduce the Company's obligations under the
Employment Agreement and Lease Agreement.
The obligations of Guarantor hereunder are independent of the obligations of Company,
and a separate action or actions may be brought and prosecuted against Guarantor,whether action
is brought against Company or whether Company be joined in any such action or actions.
Guarantor acknowledges that the payment of the Indebtedness may extend beyond six (6) years
from the date of this Continuing Guarantee. Guarantor hereby waives any defense to the
enforcement of this Continuing Guaranty based upon laches or any statutory or other period of
limitation, provided, however, that any such action to enforce this Continuing Guaranty shall he
commenced on or before December 31, 2030.
Guarantor authorizes the City, without notice or demand and without affecting her liability
hereunder,from time to time to(a)renew,compromise,extend,accelerate or otherwise change the
time for payment of,or otherwise change or modify the terms of the Indebtedness or any part there-
of; (b)take and hold security for the payment of this Guaranty or the Indebtedness guaranteed,and
exchange,enforce,waive and release any such security;(c)apply such security and direct the order
or manner of sale thereof as City in its discretion may determine. City may without notice assign
this Continuing Guaranty in whole or in part.
Guarantor waives any right to require City to (a) proceed against Company; (b) proceed
against or exhaust any security held from Company;or(c)pursue any other remedy in City's power
whatsoever. Guarantor waives any defense arising by reason of any disability or other defense of
Company or by reason of the cessation from any cause whatsoever of the liability of Company.
Until the Indebtedness of Company to City shall have been paid in full, Guarantor shall have no
right of subrogation, and waive any right to enforce any remedy which City now has or may
hereafter have against Company, and waives any benefit of, and any right to participate in any
security now or hereafter held by City. Guarantor waives all presentments, demands for
performance, notices of non-performance, protests, notices of protest, notice of dishonor, and
notices of acceptance of this Continuing Guaranty.
Any debts or other financial obligations of Company now or hereafter held by Guarantor
are hereby subordinated to the Indebtedness of Company to City and such debts or other financial
obligations of Company to Guarantor, if City so requests, shall be collected, enforced and received
by Guarantor as trustee for City and be paid over to City on account of the Indebtedness of Company
to City but without reducing or affecting in any manner the liability of Guarantor under the other
provisions of this Guaranty.
Guarantor agrees that it is not necessary for City to inquire into the powers of Company or
the officers,directors,or agents acting or purporting to act on its behalf, and the Indebtedness made
or created in reliance upon the professed exercise of such powers is guaranteed hereunder.
Guarantor agrees to pay a reasonable attorneys' fee and all other costs and expenses which
may he incurred by City in the enforcement of this Continuing Guaranty.
Guarantor agrees that this Continuing Guaranty is a contract entered into and to he
performed in Pueblo County, Colorado. The District Court for the County of Pueblo, State of
Colorado shall have exclusive jurisdiction over any suit or action which involves this Continuing
Guaranty and exclusive venue for any such suit or action shall be Pueblo County, Colorado.
Guarantor consents to the personal jurisdiction of that Court and agrees that service of process may
be made upon Guarantor either within or without the State of Colorado. To the extent permitted by
law, Guarantor waives all rights to jury trial.
Any notice hereunder shall be sufficiently given if given personally or mailed by certified
mail, postage prepaid, addressed:
(a) if to City, City Manager or Mayor (whichever is then in office), City of
Pueblo, 1 City Hall Place, 2"d Floor, Pueblo, CO 81003, with a copy to City Attorney, 1
City Hall Place, 3`d Floor, Pueblo, CO 81003, or
(b) if to Guarantor, 1219 Longwood Ave., Pueblo, CO 81004
or to such other addresses as any party hereto shall specify in written notice to the other parties.
Time is of the essence hereof. This Continuing Guaranty shall be binding upon and inure
to the benefit of City and Guarantor and their respective heirs, personal representatives, successors
and assigns. The plural shall include the singular.
IN WITNESS WHEREOF the undersigned Guarantor has executed this Continuing
Guaranty in Pueblo, Colorado this day 12th of March, 2018.
2
Di f . Ha
STATE OF COLORADO )
) ss.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before me this /L day of M*i+ ,
2018 by Diana E. Hall.
Witness my hand and official seal.
My commission expires: 1 G /IC/15' .
[ SEAL] .'.-4'
JEFFREY C. SHAW No -r►/ublic
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID• 19994009087
MY COMMISSION EXPIRES OCTOBER 18 Zi.,'
3