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HomeMy WebLinkAbout13989 City Clerk’s Office Item # Q-1 Background Paper for Proposed Resolution COUNCIL MEETING DATE: June 11, 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 AN EMPLOYMENT AGREEMENT AND A CONTRACT TO BUY AND SELL REAL ESTATE BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION AND RUSS DAVIS WHOLESALE, INC., A MINNESOTA BUSINESS CORPORATION, RELATING TO A JOB CREATING CAPITAL IMPROVEMENT PROJECT, AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAID AGREEMENTS AND TRANSFERRING TWO MILLION SIX HUNDRED THIRTY THOUSAND FOUR HUNDRED DOLLARS ($2,630,400.00) FROM THE 1992-2021 SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS FUND SUMMARY: Attached is a Resolution approving and authorizing the President of City Council to sign the following two agreements:  Employment Agreement between the City of Pueblo and Russ Davis Wholesale, Inc., a Minnesota business corporation (the “Company”).  Contract for the City to sell 1 Mars Place, Pueblo, Colorado 81001 (the “Property”) to the Company for $5,406,000.00. PREVIOUS COUNCIL ACTION: Not applicable to this Resolution. BACKGROUND: The Company wishes to establish a new distribution center with business administration offices for the Company’s fresh fruits and vegetable supply business at the City’s Airport Industrial Park. The Company’s business plan, as it pertains to Pueblo County, is centered on the commercial sale of fresh fruits and vegetables for distribution outside of Pueblo County. The Company has committed to investing approximately $8,000,000.00 in fixed assets at its new distribution center/office complex located within the City at the Airport Industrial Park. FINANCIAL IMPLICATIONS:  Under the proposed Resolution, the City will transfer up to $130,400 for pre-employment training at Pueblo Community College.  The proposed employment Agreement provides that after a three-year ramp up period, the Company will hire and employ not less than one hundred sixty-three (163) new full- time employees at its distribution facility, at an average annual salary of not less than $36,122.00 per year plus benefits.  Under the proposed Buy and Sell Agreement, the Company will pay $2,906,000.00 in cash at closing and the City’s investment of $2,630,400 will secured by a first lien (Deed of Trust) on 1 Mars Place, Pueblo, CO 81001. Upon completion of the Company’s employment commitment, the City’s Deed of Trust will be released. 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 purchase its new distribution facility at the Airport Industrial Park and the City will lose the opportunity to create one hundred sixty-three (163) new jobs. RECOMMENDATION: The Pueblo Economic Development Corporation recommends approval of this Resolution. Attachments: Proposed Resolution; Proposed Employment Agreement; Proposed Contract to Buy and Sell Real Estate; Proposed Special Warranty Deed from the City; Proposed Deed of Trust RESOLUTION NO. 13989 A RESOLUTION APPROVING AN EMPLOYMENT AGREEMENT AND A CONTRACT TO BUY AND SELL REAL ESTATE BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION AND RUSS DAVIS WHOLESALE, INC., A MINNESOTA BUSINESS CORPORATION, RELATING TO A JOB CREATING CAPITAL IMPROVEMENT PROJECT, AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAID AGREEMENTS AND TRANSFERRING TWO MILLION SIX HUNDRED THIRTY THOUSAND FOUR HUNDRED DOLLARS ($2,630,400.00) FROM THE 1992-2021 SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS FUND BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The City Council finds and determines that the expenditure of $2,630,400.00 for a job creating capital improvement project with Russ Davis Wholesale, Inc., a Minnesota business corporation (the “Company”) described in the attached agreements is for a public purpose and in furtherance of a municipal function and will create employment opportunities justifying the expenditure of public funds. The City Council further finds the incentives granted to the Company hereby meet the standards established by Section 14-4-85 of the Pueblo Municipal Code. SECTION 2. The following agreements, all dated June 11, 2018, between the City and the Company, copies of which are attached hereto and are incorporated herein by this reference, having been approved as to form by the City Attorney, are hereby approved: a. Employment Agreement; b. Contract to Buy and Sell Real Estate The President of the City Council is authorized to execute and deliver said agreements in the name of the City and the Acting City Clerk is directed to fix the seal of the City thereto and attest same. The President of the City Council is further authorized to execute and deliver a Special Warranty Deed and related documents at closing, transferring 1 Mars Place, Pueblo, CO 81001 to the Company. SECTION 3. Funds in the aggregate amount of $2,630,400.00 are hereby authorized to be transferred, 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 and in the manner described in the attached agreements. The funds hereby authorized to be transferred and expended shall be released, disbursed and paid by the City’s 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 appropriate to implement the transactions described therein. SECTION 5. This Resolution shall become effective immediately upon final passage. INTRODUCED June 11, 2018 BY: Robert Schilling MEMBER OF CITY COUNCIL APPROVED: PRESIDENT OF CITY COUNCIL ATTESTED BY: ACTING CITY CLERK AGREEMENT THIS AGREEMENT is entered into this 11th day of June, 2018 by and between the City of Pueblo, a Colorado municipal corporation (the "City") and Russ Davis Wholesale, Inc., a Minnesota business corporation (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 distribution center and business administration offices for the Company's fresh fruits and vegetable supply business at the City's Airport Industrial Park, 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 commercial sale of fresh fruits and vegetables 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: (i) invest approximately Eight Million Dollars ($8,000,000) in fixed assets in a distribution facility located within the City's Airport Industrial Park: and (ii) 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: "Employment Commitment Date"means July 1, 2021. 1 "Facility" means the 128,000 square foot warehouse and distribution building and business administration offices located at the Pueblo Memorial Airport Industrial Park, having a street address of 1 Mars Place, Pueblo, Colorado, 81001, 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 at an average annual salary of not less than $36,122.00 per year plus benefits, employed by the Company or new employees hired as a result of recruiting. Any new hires hired through an outside employment services agency will be temporarily hired by the employment services agency and will eventually be hired by the Company. The required quarterly reports will report on the portion of employees hired by an employment services agency. It is anticipated that this would represent approximately 5% to 30% of the total full time employees at the facility. "Per Employee Payment" means an amount equal to (a) the Total Funds Advanced divided by 163 (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 Lot 66, 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: 1 Mars Place, Pueblo, CO 81001. "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 $2,630,400.00, the Repayment Reduction would be $2,630.400 28 = $93,942.86. 2. 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 Million, Six Hundred Thirty Thousand, Four Hundred Dollars ($2,630,400.00) (the "City Funds"), subject to and contingent upon the following conditions and covenants which Company agrees to perform and comply with: (a) City agrees to sell the Facility to Company in accordance with the terms and conditions of the Contract to Buy and Sell Real Estate pertaining to the Facility of even date herewith. The "closing" of the sale of the Facility by City to Company shall take place within 2 thirty (30) days of the issuance of a Certificate of Occupancy for the Facility following the remodeling and renovation of the Facility by the Company. (b) City agrees to reimburse Company in an amount not to exceed One Hundred Thirty Thousand Four Hundred Dollars ($130,400.00) for the purpose of providing pre- employment training of Company's prospective employees at Pueblo Community College, Pueblo, CO ("PCC"). Company agrees to give persons successfully completing the training program at PCC priority for hiring. The maximum amount for training for each employee shall not exceed $800.00. (c) 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, and (ii) certified copies of the resolutions of the governing board of Company approving (A) this Agreement; (B) the Contract to Buy and Sell Real Estate for the Facility and authorizing its officers to execute and deliver said documents in the name of Company, and (iii) (A) this Agreement; and (B) the Contract to Buy and Sell Real Estate for the Facility, executed by authorized officers of Company. 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 Closing does not occur on or before October 1, 2018, 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. 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 one hundred sixty-three (163) 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 pay to City an amount each Quarter equal to the Quarterly Employees less than one hundred 3 sixty-three (163) 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 $2,630,400.00 and such Quarterly Employees is 151, the amount payable by Company to City on or before the fifteenth (15th) day of the next calendar month would be (163 - 151) x $576.34 = $6,916.08. (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 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. Said quarterly reports shall also identify how many of the total employees are hired by an employment services agency. 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 one hundred sixty-three (163) Quarterly Employees at the Facility, or (ii) paying Company's Quarterly Payments as provided 4 in 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 a Deed of Trust encumbering the Facility and Property. Company covenants with and warrants to the City that the Deed of Trust shall constitute a first priority lien or encumbrance and that there are and will be no senior liens or encumbrances against the Facility and Property. The form and content of the Deed of Trust 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 hereby submits to the jurisdiction of such District Court. To the full extent allowed by law, each party waives its right to a jury trial. 5 8. This Agreement expresses the entire understanding of the parties and supersedes and abrogates any and all prior dealings and commitments, whether oral or written, with respect to the subject matter of this Agreement and may not be amended or modified except in writing signed by City and Company. Any waiver of any provision of this Agreement must be in writing and signed by the party whose rights are being waived. No waiver of any breach of any provision hereof shall be or be deemed to be a waiver of any preceding or subsequent breach of the same or any other provision of this Agreement. The failure of either party to enforce or seek enforcement of the terms of this Agreement following any breach shall not be construed as a waiver of such breach. 9. This Agreement shall be construed in accordance with and be governed by the laws of the State of Colorado without regard to conflict of law principles. 10. Any notices hereunder shall be sufficiently given if given in writing personally or mailed by first class, registered, or certified mail, postage prepaid, addressed: (a) if to City, City Manager, City of Pueblo, 1 City Hall Place, 2nd Floor, Pueblo, Colorado, 81003, with copy to City Attorney, 1 City Hall Place, 3rd Floor, Pueblo, Colorado, 81003, or (b) if to the Company, Attn: Chief Executive Officer, 266 4tn Street NE, Wadena, MN 56482. 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, 6 percentage, contingent fee or any other remuneration payment or receipt of which is contingent upon approval of this Agreement by City or City's advancement of City Funds to 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 partners or joint venturers 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 11th day of June, 2018. 7 0�4 +° too ifr ,„ City of Pueblo, Colorado , P=a Zy,,."0 • a Colorado Munici•al Corporation At :. ,f�1�! ;,i By ity Clerk ' sident of the City Council Russ Davis Wholesale, Inc. a Minnesota business corporation By Adam Gamble President STATE OF 61 L) ) COUNTY OF - � ) -0� ) ss. The foregoing instrument was acknowledged before me this day ofd,} ,t S _ , 2018 by Adam Gamble as President of Russ Davis Wholesale, Inc. a Minnesota business corporation. Witness my hand and official seal. My commission expires: [ SEAL ] :-49 KRISTIE L. BACA Notary Public NOTARY PUBLIC STATE OF COLORADO NOTARY ID#20114036606 MY COMMISSION EXPIRES JUNE 13,2019 8 CONTRACT TO BUY AND SELL REAL ESTATE THIS CONTRACT("Agreement") is made the 11th day of June, 2018, between the City of Pueblo, a Colorado municipal corporation (hereinafter called the "Seller"), and Russ Davis - Wholesale,Inc., a Minnesota business corporation(hereinafter called the"Purchaser"). 1. Property Defined. The Seller agrees to sell and convey to the Purchaser, and the Purchaser agrees to purchase from the Seller, all that certain plat, piece, and improved parcel of land having the following legal description: Lot 66,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 1 Mars Place,Pueblo,CO 81001 (the "Property"). The Property shall be conveyed by Special Warranty Deed("Deed") a form of which,marked as Exhibit 1,is attached hereto and incorporated herein by reference.The Property shall be conveyed subject to and subordinate to all easements,reservations,restrictions,covenants, limitations, rights-of-way and conditions of record and zoning and subdivision regulations and resolutions of the City of Pueblo and the Permitted Exceptions(as hereinafter defined),which shall be listed as exceptions in Exhibit A to the Special Warranty Deed, subject to satisfaction of the conditions listed in Paragraph 4 of this Agreement. 2. Purchase Price. Seller and Purchaser agree that the total purchase price shall be Five Million Four Hundred Six Thousand Dollars(U.S. $5,406,000.00),to be paid as provided in, and subject to,Paragraph 3 below(the"Purchase Price"). 3. Payment of Purchase Price. The Purchase Price for the Property shall be payable as follows: (a) Two Million Nine Hundred Six Thousand Dollars($2,906,000.00) in cash or certified funds payable on the Closing Date(as defined in Paragraph 6 below); (b) As agreed to in that certain Agreement between Seller and Purchaser of even date herewith ("Employment Agreement"), at Closing (as hereinafter defined), Purchaser shall deliver to Seller a duly executed (i) Employment Agreement and (ii) Deed of Trust to the Property in the principal amount of Two Million Six Hundred Thirty Thousand Four Hundred Dollars($2,630,400.00).Purchaser covenants with and warrants to the Seller that the Deed of Trust shall constitute a first priority lien or encumbrance and that there are and will be no senior liens or encumbrances against the Property.As agreed to in the Employment Agreement,during the seven (7) year period starting on the Employment Commitment Date (as defined in the Employment Agreement). and ending eighty-four (84) months thereafter (the "Repayment Period") the principal balance of the Deed of Trust will be decreased on a quarterly basis consistent with the Purchaser's compliance with its Employment Commitment as set forth in Section 3 of the 1 Employment Agreement. The format of the Deed of Trust shall require the consent of the Seller, which consent shall not be arbitrarily withheld, conditioned or delayed. 4. Real Property Taxes. General real property taxes and assessments for tax year 2018, if any, shall be prorated and paid at Closing to the Purchaser on the basis of the 2017 tax year. 5. Title Commitment and Policy. Within ten(10) days of the date hereof and, in any event,at least twenty(20)days prior to the Closing Date, Seller shall order and obtain, and deliver to Purchaser, at Seller's expense, a current commitment for extended coverage title insurance in the amount ofthe Purchase Price,together with legible copies of all documents listed as exceptions therein, and a current certificate of taxes due with respect to the Property, from a title company selected by Seller, and reasonably acceptable to Purchaser, authorized to issue title insurance in the state of Colorado (the "Title Company"), on the current standard form of extended ALTA Owners Policy (collectively, the "Title Commitment"). The Title Company shall promptly provide copies of any amendments or modifications of the Title Commitment to Purchaser. Purchaser shall have the right to review the Title Commitment,the title documents and the survey and notify Seller in writing of any title objections to the title exceptions set forth in the Title Commitment and any objections to items shown on the survey. Seller shall have five (5) days from receipt of notice of such objections within which to eliminate or modify(or agree in writing to so eliminate or modify)any such unacceptable exceptions or items to the reasonable satisfaction of Purchaser, but Seller shall have no obligation whatsoever to so eliminate or modify any such unacceptable exceptions or items. In the event that Seller is unable or unwilling to eliminate or modify (or agree in writing to so eliminate or modify) such unacceptable items to the reasonable satisfaction of Purchaser on or before the expiration of said five(5) day period, Seller shall notify Purchaser in writing of such fact within said five (5) day period or be deemed to have so notified Purchaser with respect to all such unacceptable items not theretofore cured upon the fifth(5th)day of said period. In such event, Purchaser shall, prior to the Closing Date either (i)waive such objections and accept title to the Property subject to title exceptions set forth in the Title Commitment and items shown on the survey to which Purchaser did not object and to such unacceptable items (the "Permitted Exceptions"), or (ii)terminate this Agreement by written notice to Seller, whereupon this Agreement shall automatically be terminated and of no further force and effect,except as otherwise expressly set forth herein. At Closing or as soon as reasonably practicable after Closing,the Title Company shall issue and deliver to Purchaser the owner's title insurance policy referred to above (the "Title Policy"), issued by the Title Company insuring Purchaser's title to the Property consistent with the Title Commitment subject only to taxes and assessments for the year of Closing and subsequent years, and the Permitted Exceptions. At Closing, Seller shall pay the premium for the Title Policy. Purchaser may obtain such other endorsements to the Title Policy as Purchaser desires, at the expense of Purchaser, except for endorsements obtained at Seller's cost. Seller shall provide such affidavits or certificates,and pay such expenses, as may be required by the Title Company to remove all liens, including, without limitation,mechanics' or materialmen's liens, as exceptions to the Title Policy. 6. Closing Time and Place. Closing of the transaction contemplated hereby("Closing")shall be held at the offices of Stewart Title, 1307 Fortino Blvd.,Pueblo, CO 81008 at a date and time as 2 agreed by Seller and Purchaser. Each of the parties hereby authorizes Stewart Title to close this transaction and each agrees to be responsible for one-half (1/2) of the closing fee charged by Stewart Title. The Purchaser's real estate broker will be paid a commission of$106,000.00 by Seller at closing. 7. Closing Costs. All other costs and expenses incident to this transaction and the Closing thereof shall be paid by the party incurring same. 8. Leases or other Contracts. Seller warrants that there are no leases, contracts or agreements applicable to or affecting the Property, entered into by Seller, and that to the best of Seller's actual knowledge there are no other leases, contracts or agreements entered into by any third party applicable to or affecting the Property, which are or will be in force and effect on the date of Closing. 9. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILTY, FITNESS FOR A PARTICULAR PURPOSE, TITLE(OTHER THAN SELLER'S SPECIAL WARRANTY OF TITLE TO BE SET FORTH IN THE SPECIAL WARRANTY DEED), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITION (INCLUDING, BUT NOT LIMITED TO, HAZARDOUS MATERIALS CONTAMINATION), UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE SPECIAL WARRANTY OF TITLE TO BE SET FORTH IN THE SPECIAL WARRANTY DEED, UPON CLOSING SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY"AS IS,WHERE IS,WITH ALL FAULTS."PURCHASER AND SELLER AGREE THAT THE PROVISIONS OF THIS PARAGRAPH 9 SHALL SURVIVE THE CLOSING OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THE RECORDING OF THE SPECIAL WARRANTY DEED HEREUNDER. 10. Seller and Purchaser agree that the provisions of this Agreement shall survive Closing and the recording of the Deed. 11. All understandings and agreements heretofore had between the parties hereto are merged into this Agreement and the Employment Agreement, which alone fully and completely expresses their agreement, and this Agreement and the Employment Agreement are entered into after full investigation, neither party relying upon any statement or representation, not embodied in this Agreement or the Employment Agreement, made by the other. 3 12. This Agreement may not be changed or terminated orally. 13. The provisions in this Agreement are to apply to and bind, and inure to the benefit of,the heirs, executors, administrators, successors, and assigns of the respective parties. 14. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall nonetheless remain in full force and effect. 15. Applicable Law. THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF COLORADO. SELLER AND PURCHASER HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE DISTRICT COURT, PUEBLO COUNTY, STATE OF COLORADO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DE[ERMINED IN THE DISTRICT COURT OF PUEBLO COUNTY, STATE OF COLORADO. PURCHASER AND SELLER AGREE THAT THE PROVISIONS OF THIS PARAGRAPH 15 SHALL SURVIVE THE CLOSING OF THE TRANSACTION CONTEMPLA 1'ED BY THIS AGREEMENT AND THE RECORDING OF THE SPECIAL WARRANTY DEED HEREUNDER. TO THE FULL EXTENT PERMITTED BY LAW, PURCHASER AND SELLER WAIVE THEIR RIGHTS TO A TRIAL BY JURY. 16. The provisions of this Agreement and of the documents to be executed and delivered at Closing are and will be for the benefit of Seller and Purchaser, and their respective heirs, executors, administrators, successors and assigns, only and are not for the benefit of any third party, and accordingly, no third party shall have the right to enforce the provisions of this Agreement or of the documents to be executed and delivered at Closing. 17. The following schedules or exhibits attached hereto shall be deemed to be an integral part of this Agreement: Exhibit 1 —Form of Special Warranty Deed 18. The section headings appearing in this Agreement are for convenience of reference only and are not intended, to any extent and for any purpose, to limit or define the text of any section or any subsection hereof. 19. The parties acknowledge that the parties and their counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any exhibits or amendments hereto. 20. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. 4 21. Neither party shall record this Agreement or any short form memorandum of this Agreement. Executed at Pueblo, Colorado, the day and year first above written. SELLER: 46 x%gp CITY OF PUEBLO, CO o ' A MUNICIPAL CORPORATION #071,4A, By: ••-- . ti-.r11 W Council President , 111111111111111 ATTESTED BY ,ncPp7 (.,t1/11. 444 ACTING CITY CLERK' PURCHASER: Russ Davis Wholesale,Inc. a Minnesota business corporation By -- Adam Gamble President /l STAN,OF (, v ) s COUNTY OF .,L QX 0 s The foregoing instrument was acknowledged before me this I t-day of 2018 by Adam Gamble as President of Russ Davis Wholesale, Inc. a Minnesota business corporation. Witness my hand and official seal. My commission expires: SEA / t. ► ) KRISTIE L N E OF p BACA , Notary Public STgTE OF URIC NOTARY OIORAOp MY COMMISSIONO#?0 7 7 4036606 EXPIRES JUNE 73.2070 5 AGREEMENT TO SELL AND PURCHASE EQUIPMENT AND PERSONAL PROPERTY i^t THIS AGREEMENT is made this day of July, 2018 between the City of Pueblo, 1 City Hall Place, Pueblo, Colorado 81003, (hereinafter referred to as the "Seller") and USD, LLC, 8005 Constance, Lenexa, Kansas 66215 (hereinafter referred to as the "Purchaser"). Recitals WHEREAS, on June 11,2018 by Resolution No. 13989, the City approved the sale of 1 Mars Place, Pueblo, Colorado 81001 to Russ Davis Wholesale, Inc., a Minnesota business corporation; and WI IEREAS, Russ Davis Wholesale, Inc. has requested that the City of Pueblo remove from the premises located at 1 Mars Place, all equipment and other personal property belonging to the City; and WHEREAS, in Resolution No. 13989, dated June 11, 2018, the City Manager was authorized and directed to execute such contracts, including this agreement, as are necessary to complete the sale of 1 Mars Place, including the removal of equipment and other personal property located on said premises. NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the receipt arid adequacy of which is hereby acknowledged, the Seller and Purchaser hereby agree as follows: 1. Equipment and personal property defined. The Seller agrees to sell and the Purchaser agrees to purchase, all of the equipment and personal property owned by the Seller, located at 1 Mars Place, more particularly described as: north of the wall from the overhead bin room to the northern wall of the building and east of the offices. 2. Purchase price. Purchaser shall pay to Seller the total purchase price of One Hundred Thousand Dollars ($100,000.00) (the "Purchase Price"). Seller and Purchaser anticipate that four truckloads of equipment and other personal property will be removed from the premises. Purchaser shall pay the purchase price when the equipment and other personal property is removed from 1 Mars Place, at the rate of$25,000 per truckload. 3. Removal costs. All removal costs will be paid by Purchaser or its contractor. 4. Removal requirements. Seller and Purchaser agree that Purchaser shall remove all equipment and other personal property from the premises located at 1 Mars Place within ninety (90) days of the date of this agreement. All electrical will be disconnected at the subpanel. All floor anchors will be ground to floor level. Purchaser agrees that all removal work will be conducted in a safe manner using reasonable and customary industry practices. 5. Disclaimers. PURCHASER ACCEPTS THE EQUIPMENT AND OTHER PERSONAL PROPERTY SOLD BY SELLER IN [TS CURRENT "AS IS, WHERE IS, WITH ALL FAULTS" CONDITION. SELLER DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT AND PERSONAL PROPERTY SOLD, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. 6. Insurance. Purchaser agrees that it, or its contractor, shall add the City of Pueblo as a named insured against claims for bodily injury or death and against claims for damage or destruction of property, including loss of use resulting therefrom. 7. Indemnification. Purchaser agrees to hold harmless, defend and indemnify the Seller from and against any liability to third parties arising out of this agreement. 8. Applicable law, jurisdiction, venue. etc. This agreement shall in all respects be governed by and construed in accordance with the laws of the State of Colorado. Seller and Purchaser hereby irrevocably submit to the jurisdiction of the District Court, Pueblo County, State of Colorado in any action or proceeding arising out of or relating to this agreement. To the full extent permitted by law, Purchaser and Seller waive their rights to a trial by jury. 9. Termination. This agreement shall terminate on December 31, 2018. Executed at Pueblo, Colorado the day and year first above written. SELLER: CITY OF PUEBLO, COLORADO A MUNICIPA . CORPORATION f By: Sam Azad City Manager PURCHASER: USD, LLC .11C4priar-11. 4111116- y: Willia Hurst Title: , '.. - Reception 2108792 06/19/2018 09:59:03 AM DEED OF TRUST THIS INDENTURE ("Deed of Trust"), is made this 12th day of June, 2018 between Russ Davis Wholesale, Inc., a Minnesota business corporation, whose address is 266 4th Street NE, Wadena, MN 56482 ("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"); WITNESSETH,THAT,WHEREAS, Grantor and the City of Pueblo are parties to that certain Agreement dated June 11,2018,a true,complete and correct copy of which is attached as Exhibit A hereto (the "Agreement"), whereby Grantor agreed to comply with certain employment requirements enumerated in the Agreement in consideration of certain funds advanced from the City of Pueblo to Grantor in an aggregate amount not to exceed Two Million Five Hundred Thousand Four Hundred Dollars($2,500,000.00)(the"Replacement City Funds"); AND WHEREAS, as of the date hereof, the amount of the Replacement City Funds subject to a repayment obligation upon default by Grantor under the Agreement shall be equivalent to the Repayment Obligation as defined in Section 4 of the Agreement. AND WHEREAS, the Grantor is desirous of securing payment of the Repayment Obligation to the extent outstanding and subject to the quarterly reductions pursuant to Section 4(e)of the Agreement(the"Obligations"). 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 Obligations ("Termination Date"), the following described property,to wit: Lot 66, 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 1 Mars Place,Pueblo,CO 81001. TO HAVE AND TO HOLD the same, together with all and singular the privileges and appurtenances thereunto belonging, in trust nevertheless,that: a)in case of default by Grantor of the Obligations under the Agreement, or in the payment of any interest thereon according to the tenor and effect of said Agreement, or in the payment of any prior encumbrances, principal or interest, if any, or b)in case default shall be made or violation or breach of any of the terms conditions, covenants or agreements herein contained, which 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 herein contained and 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 j() (( .7 7 1 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. 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 date of sale or, if later, 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 Obligations under the Agreement, 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. For the purposes of calculating the proceeds and overplus of a sale as described above, the amount of the Repayment Obligation owed to the City of Pueblo as of the date of the sale shall be that amount which is outstanding under the Agreement at the time of such sale, taking into consideration the quarterly reduction of the amount of the Repayment Obligation pursuant to Section 4(e) of the Agreement. The Grantor covenants with and warrants to the Public Trustee, that at the time of the ensealing of and delivery of these presents the Grantor is well seized of the said lands, tenements and property in fee simple, and has good right, full power and lawful authority 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 lands, tenements, and 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. The Grantor further warrants to the Public Trustee the quiet and peaceable possession of said property against all persons who may lawfully claim the whole or any part thereof, and that 2 the Grantor shall and will forever defend the title to said property against such person or persons subject to any liens, easements, conditions, restrictions, covenants and reservations of record. Until the Termination Date, 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 lands insured against any casualty loss, including extended coverage, in a company or companies, meeting the net worth requirements of the beneficiary hereof 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. Each policy shall contain a loss payable clause 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 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. 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)the creation of a lien or encumbrance subordinate to this Deed of Trust, (b) the creation of a purchase money security interest for household appliances, (c) a transfer by devise, descent or by operation of law upon the death of a joint tenant, or (d)the grant of any leasehold interest of three years or less not containing an option to purchase, beneficiary may, at beneficiary's option, declare all the sums secured by this Deed of Trust to be immediately due and payable. Beneficiary shall have waived such option to accelerate if, prior to the sale or transfer, beneficiary and the person to whom the property is to be sold or transferred reach agreement in writing that the credit of such person is satisfactory to beneficiary and that the interest payable on the sums secured by this Deed of Trust shall be at such rate as beneficiary shall request. IN CASE OF ANY DEFAULT whereby the right of foreclosure occurs hereunder, the holder of said 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 a Receiver for said property, and of the rents, issues and profits thereof, after such default, including the time covered by foreclosure proceedings and the period of redemption, if any, and shall be entitled thereto as a matter of right without regard to the solvency or insolvency of the Grantor or of the then owner of said property and without regard to the value thereof. Such Receiver may be appointed by any court of competent jurisdiction upon ex parte application and without notice -- notice being hereby expressly waived -- and all rents, issues and profits, income and revenue therefrom shall be applied by such 3 Receiver to the payment of the indebtedness hereby secured, according to the law and the orders and directions of the court. IN THE CASE OF ANY DEFAULT in any of said Obligations, according to the tenor and effect of said Agreement or any part thereof, or of a breach or violation of any of the covenants or agreements herein by the Grantor, 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. IT IS FURTHER UNDERSTOOD AND AGREED that upon the Termination Date, the City of Pueblo shall execute a release of this Deed of Trust, such release document to be prepared by Grantor with Grantor paying the expense thereof. All of the covenants and agreements herein contained shall extend to and be binding upon the heirs, personal representatives, successors and assigns of the respective parties hereto; and that the singular number shall include the plural and the plural the singular. Executed on the date first above written. GRANTOR: Russ Davis Wholesale, Inc. a Minnesota business corporation By Adam Gamble President STATE OF COLORADO ) ) ss. COUNTY OF PUEBLO ) The foregoing instrument was acknowledged before me this 12th day of June, 2018 by Adam Gamble as President of Russ Davis Wholesale, Inc. a Minnesota business corporation. Witness my hand and official seal. My commission expires: . [ SEAL ] JA.1102) (>1'301E2 KRISTIE L. BACA Notary Public NOTARY PUBLIC STATE OF COLORADO NOTARY ID#20114036606 MY COMMISSION EXPIRES JUNE 13.2019 4 EXHIBIT A Agreement [Attached] 5