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HomeMy WebLinkAbout05437ORDINANCE NO. 5437 AN ORDINANCE APPROVING AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATIO14 AND PUEBLO DEVELOPMENT FOUNDATION, INC. RELATING TO THE CONSTRUCTION OF A FACILITY TO BE LEASED TO 1CDONNELL DOUGLAS CORPORATION AND APPROPRIAT- ING "1O FROM THE SAL11 AND USE TAX CAPI'T'AL IMPROVEMENT FUND FOR THE CONSTRUCTION THEREOF WHEREAS, the City of Pueblo has in recent years suffered a decline in the number of available employment opportunities for its citizens and a corresponding increase in unemployment, and WHEREAS, there exists in the City of Pueblo abnormal unem- ployment and a depressed economy which imposes inequitable living conditions upon the unemployed and places a public burden upon the City and its citizens, and 11HEREAS, the prevention and elimination of unemployment and the social and economic evils associated therewith are public purposes and matters of local and municipal concerns that justify the expenditure of public funds, and WHEREAS, McDonnell Douglas Corporation has committed to lease a 118,710 square foot manufacturing facility ( "Facility ") to be constructed by Pueblo Development Foundation, Inc. at Pueblo Memorial Airport, and WHEREAS, Pueblo Development Foundation, Inc. has agreed to construct the Facility to be leased to McDonnell Douglas Corporation for an amount not to exceed $3,459,500 and has obtained from local banks a loan commitment for the permanent financing for such Facility after its construction, and tIHEREAS, Pueblo Development Foundation, Inc. in order to con- struct such Facility needs the sum of $2,500,000, and I'lEREAS, the City, subject to and upon the terms and conditions set forth in the Agreement dated October 26, 1987 attached hereto and incorporated herein, is willing to advance to Pueblo Development Foundation, Inc. the sum of $2,500,000 out of the Sales and Use Tax Capital Improvement Fund for the construc- tion of the facility, and G7JEREAS, the construction thereof by McDonnell Douglas economy of the City and create people of Pueblo; NOW THEREFORE, of such Facility and the lease Corporation will stimulate the employment opportunities for the BE I'T ORDAINIED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that: SECTION 1 The City Council does hereby find and determine: 1. There exists in the City of Pueblo abnormal unemployment and a depressed economy which imposes inequitable living condi- tions upon the unemployed and places a public burden upon the City and its citizens. 2. The prevention and elimination of unemployment and the social and economic evils associated therewith are public purposes and matters of local and municipal concern that justify the expenditure of public funds. 3. The appropriation of $2,500,000 out of the Sales and Use Tax Improvement Fund for the purpose of constructing the Facility to be leased by McDonnell Douglas Corporation is a ;permitted expenditure of moneys from such Fund, will provide employment opportunities for relief of unemployment and serve a direct and public purpose for which public funds may be expended, is in the best interest of the City and its citizens, and will promote the public healt�, safety, commerce, prosperity, and general welfare of the City and its citizens. SECTION 2 The Agreement dated October 26, 1987 between Pueblo, a funicipal Corporation and Pueblo Development Foundation, Inc. relating to the construction of a facility to be leased to McDonnell Douglas Corporation, a copy of which is annexed hereto and incorporated herein, is hereby approved. The President of the City Council is authorized to execute and deliver the Agreement and Warranty Deed attached thereto for and on behalf of the City Eva I and the City Clergy: is authorized to affix the seal of the City thereto and attest same. SECTION yl. The sum of $2,500,000 in the Sales and Use Tax Capital Improvement Fund is hereby appropriated and shall be expended for the specific purpose of constructing at the Pueblo Hemorial Airport an approximately 118,710 square manufacturing facility to be leased by Pueblo Development Foundation, Inc. to McDonnell Douglas Corporation. tt Except to the extent inconsistent with this Ordinance, all actions heretofore taken by the City or any of its officers or employees toward the appropriation herein made and other actions herein authorized are hereby confirmed, approved and ratified. A' gr('TTC)'7 rK This Ordinance shall become effective upon final passage. INTRODUC'D: October 26, 1987 A'T'TEST : 41 4AIA . A1' Ci Clerk TJ 23.40 By PAUL JONES Councilman APPROV�' Pre dent of the City Counc 1 -3- ACRFF.P1FNT THIS ACREEMEN�IT entered into this 26th day of October, 1937 between Pueblo, a flunicipal Corporation (herein "City ") and Pueblo Development Foundation, Inc., a Colorado nonprofit corporation (herein "PDF ") , WITNFSSETTI, ,, 11 , 11T'EAS, PDF has proposed a plan for the reuse and develop- ment of a portion of the Pueblo Memorial Airport Industrial Park described in Exhibit "A" attached hereto and incorporated herein (herein "Property ") for industrial use by McDonnell Douglas Corporation (herein " "), and WHEREAS, MDC has committed to lease a 113,700 square foot manufacturing facility (herein "Facility ") to be constructed on the Property by PDF, and WHEREAS, PDF has entered into a contract with Pueblo Community Contractors ( "Contractor ") to construct the Facility for a guaranteed maximum cost of $3,453,000 including overhead and profit (herein "Contract ") which Contract describes the Facility and Scone of Iork and requires the Facility to be constructed in compliance therewith and in conformity with the Drawings and Specifications prepared by Burns & McDonnell Engineers (herein "Architect ") (the Contract, Scope of Work, and Drawings and Specifications are herein collectively referred to as "Contract Documents "), and WHEREAS, PDF has obtained a $3,500,000 loan commitment for the permanent fiancing of the Facility and needs the sum of $2,500,000 to construct the Facility, and WHEREAS, City is willing to advance the sum of $2,500,000 for the construction of the Facility subject to and upon the terms and conditions hereinafter contained; INOW, THEREFORE, in consideration of the foregoing and mutual promises herein contained, City and PDF agree as follows: 1. PDF shall, for a construction and design cost of $3,459,500, construct or cause to be constructed the approximately 118,700 square foot Facility on the Property in accordance and in compliance with the requirements, terms and provisions of the Contract Documents and the Lease between PDF and MDC substantially in the form and content of the Lease enclosed with the commitment of MDC dated October. 6, 1937 with such modifications thereto as MDC and PDC May mutually agree upon (herein "Lease "). PDF and MDC shall execute the Lease and deliver an executed copy thereof to City. 2. PDF shall enter into a binding loan commitment with Colorado ^?ational Bank- Pueblo as agent for itself and other local banks for a permanent loan in an amount not less than $3,459,500 (herein " Permanent Loan "). PDF shall cause the Permanent Loan to be closed no later than the date of substantial completion of the Facility and pay or cause the proceeds thereof to be paid and disbursed in the following order: (a) First, to the City, an amount equal to the total amount of all funds advanced by City under paragraph 3 hereof plus interest at the rate of 6% per annum from the date of each advance until paid. (b) Second, to the Contractor, an amount equal to the then unpaid balance of the guaranteed maximum cost, profit and overhead. (c) Third, to the City, an amount equal to the total sum of all funds advanced by the City under Agreement dated December 22, 1987 between City and PDF for the construction of t1DC's 61,750 square foot facility, or the balance of the Permanant Loan proceeds, whichever is less. 3. PDF represents and agrees that it has available and will spend at least $600,000 for the design and construction of the Facility. After PDF has spent its available funds in an amount not less than $600,000 for the design and construction of the Facility, and, if PDF is not in default hereunder, City will make periodic advancements, not to exceed $2,500,000, to PDF or at PDF's written direction to the Contractor within 15 days after receipt by City's Director of Finance of written application for payment in substantially the form of AIA Document 6702 certified by the Contractor, the Architect, and an officer of PDF. PDF agrees to pay to City upon demand but no later than six (6) months from date hereof all moneys advanced by City hereunder with interest thereon at the rate of six (6) percent per annum. 4. PDF acknowledges and agrees that under Agreement dated December 22, 1986 between PDF and City, City advanced the sum of $1,626,965 for the construction of 1 1 1DC's first facility at Pueblo tlemorial Airport Industrial Park which PDF has leased to M DC, PDF shall repay the full sum of $1,626,965 to City. Upon City's delivery of the Warranty Deed to PDF as provided in paragraph 5 hereof, PDF will execute and deliver to City a deed of trust on the property described in Exhibit A, a demand promissory note, and assignment of rents in form and content acceptable to the City Attorney evidencing and securing the repayment of such funds advanced by City. PDF shall pay to City immediately after receipt all rents and other payments paid to PDF by M DC under both Leases with PDF less expenses incurred by PDF in performance of the Leases with "1DC (other than those for the design and construction of the Facilities) and payments due under PDF's Permanent Loan. PDF will annually submit to City an accounting for all rent and other payments received from M DC. 5. Contemporaneously with the closing of the Permanent Loan, City will execute and deliver to PDF the Warranty Deed attached hereto as Exhibit A. PDF shall not use, lease, encumber, assign, or otherwise transfer title to the property described in -2- the Warranty Deed or any part thereof except in furtherance of and in compliance with the terms and provisions of its Leases with H D'C and, as to Parcel B, except as security for the Permanent Loan. 6. clothing herein contained nor the relationship of PDF to City, which relationship is specifically declared to be that of an independent contractor shall make or he construed to make PDF or any of PDF's agents, contractors, or employees, the agents, contractors or employees of the City. PDF shall be solely and entirely responsible for its acts and the acts of its agents, em- ployees and contractors. 7. No action or failure to act by either PDF or City shall constitute a waiver of any right or duty afforded either of them under this Agreement, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach hereunder, except as may be specifically agreed in writing. Neither the receipt by City of any written application for payment under paragraph 3 hereof nor the advancement and payment of funds by City thereunder shall constitute an acceptance or approval by the City of the certifications made thereunder or a waiver by the City of any default or noncompliance by PDF, its agents, contractors, or employees. 8. This Agreement shall not be assigned or transferred, in whole or in part by PDF without the prior written consent of the City. Any such attempted assignment or transfer without the consent of the City shall be void and unenforceable. 9. The Agreement dated December 22, 1986 between PDF and City is hereby terminated and each party released from all obligations thereunder. 10. This Agreement shall be binding upon and inure to the benefit of PDF and City, and their respective successors and air) roved assigns. Executed at Pueblo, Colorado the day and year first above written. [S E A L] PUEBLO, A MUNICIPAL CORPORATION S A ATTEST: By C y Clerk President of the City Council [S E A L] PUEBLO DEVELOPMENT FOUNDATION, INC. ATTEST Secretary .�Presi'dent TJ 23.41 -3- WARRANTY DEED THIS DEED, made this day of 19 by and between Pueblo Development Foundation, Inc., a Colorado Nonprofit Corporation, existing under the laws of the State of Colorado (herein "Company ") and The City of Pueblo, a !4unicipal Corporation (herein "City "), W I T [d E S S E T H: That City for and in consideration of the sum of $10.00 and other good and valuable consideration to City in hand paid by the Company, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell, convey and confirm unto the Company, its successors and assigns forever, all the real property situate, lying and being at Pueblo Memorial Airport, County of Pueblo, State of Colorado, more particularly described in Exhibits "A" and "B" attached hereto and incorporated herein (herein "Property "), with all its appurtenances, and warrant the title to the same, subject to restrictions, reservations, rights of way, and easements of record, of the Pueblo County records, and easements for all existing sanitary and storm sewer, water, electrical power, and natural gas lines located on or crossing the Property, and to the following covenants, conditions, and restrictions which are and shall be construed to be covenants running with the land described herein and binding upon the Company, its successors and assigns and inuring to the benefit of City, its successors and assigns. Exhibit A 1. City reserves unto itself and its successors and assigns, for use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the Property, together with the right to cause in the airspace above the surface of the Property such noise as may be inherent in the operation of any aircraft now known or hereafter used for naviga- tion of or flight in said airspace, and for use of the airspace above the surface of the Property for landing on, taking off from, or operation on or over the Pueblo Pemorial Airport. 2. Company expressly agrees for itself, its successors and assigns to restrict the height of structures, objects of natural growth and other obstructions on the Property, to a height of not more than 4690 feet above the mean sea level unless written approval for a greater height shall be obtained by Company from the Federal Aviation Administration. 3. Company expressly agrees for itself, its successors and assigns, that it will prevent any use of the Property which would interfere with landing or taking off of aircraft at the Pueblo Memorial Airport, or otherwise constitute an airport hazard. In the event this covenant is breached, City reserves the right to enter upon the Property and at the expense of the Company to remove the offending structure or object and to cut the offending growth. 4. The Property and its use are further subject to the following Restrictive Covenants: (a) The Property may be used only for manufacturing facilities and incidental office and warehouse uses. The Property shall not be used for smelting or elating operations, or for the storage or processing of putrescible materials, or for any purpose IWM or business which constitutes a nuisance, or which exceeds the state air pollution control standards for the facility. Gasoline or diesel fuel used in connection with the business conducted on the Property but not for sale at retail or wholesale may be stored on the Property in an environmentally sound manner. (b) Outdoor storage shall not be permitted except for storage of equipment used at the facility. Parking areas for vehicles and roads on the Property shall be paved. (c) The Property shall not be subdivided and no building or structure over 70 feet in height shall be installed or constructed on the Property unless written approval for a greater height shall be obtained from the Federal Aviation Administration. (d) No structure or building shall be constructed or installed nearer than 75 feet of the right -of -way line of United Avenue or 25 feet of side or rear streets. There must be installed and maintained a minimum 25 -foot strip of living landscaded ground adjacent to United Avenue and adjacent to other abutting streets. lllinimurn side yards set -backs shall be 25 feet. (e) The Property owner shall at all times keep and maintain the Property and all buildings, landscaping and improvements located thereon in a good, clean, safe and orderly condition free of rubbish, debris and trash. (f) Before commencing the construction, installation or alteration of any building, structure, parking facility, outdoor sign, or other permanent improvement, or landscaping of the _Property, the Property owner shall submit to and have approved by the City in writing the site plans and plans and specifications therefor. City's approval will not be unreasonably withheld. In the event the City or its designated representatives shall fail to approve or disapprove such plans and specifications within thirty (30) days after they have been submitted to the City, such approval will not be required and this covenant will be deemed to have been complied with. All buildings, improvements and activities on the Property shall be constructed and conducted in compliance with all applicable federal, state and local law, regulations, and codes. (g) [taste water discharged from the Property into City's sanitary sewer system and Company's use thereof are limited by and subject to City's sewer user, industrial cost recovery, high strength surcharge, and pretreatment ordinances, rules and regulations applicable to City's sanitary sewer system at Pueblo Memorial Airport, now in effect or hereafter adopted or amended. Only domestic waste water will be discharged from the Property into City's sanitary sewer sytem. (h) City reserves the right to waive all or any part of these Restrictive Covenants. -3- 5. At the request of City, Company shall meet and in good faith confer with City concerning the annexation of the Property to the City when the Pueblo Memorial Airport, or any part thereof, including without limitation, the Property, becomes eligible for annexation. 6. Invalidation of any one of the foregoing covenants, conditions, restrictions or reservations by judgment or court order or otherwise shall in no wise affect any of the other of said covenants, reservations, restrictions or conditions which shall remain in full force and effect. 7. City shall have the right to enforce the restrictions, covenants and conditions hereof by injunction or other lawful procedure and to recover damages, costs, expenses, including reasonable attorney fees, resulting from any violation thereof or arising out of their enforcement. PUEBLO DEVELOPMENT FOUNDATION, INC. [S E A L] ATTEST: By President Secretary [S E A L] ATTEST: City Clerk CITY OF PUEBLO, A MUNICIPAL CORPORATION By President of the City Council MIC COUNTY OF PUEBLO ) ) ss. STATE OF COLORADO ) The foregoing instrument was acknowledged before me in Pueblo County, Colorado this day of , 19 by as President and as Secretary of Pueblo Development Foundation, Inc., a Colorado Nonprofit Corporation. Witness my hand and official seal. �Iy commission expires: [S E A L] COUNTY OF PUEBLO ) ) ss. STATE OF COLORADO ) Notary Public The foregoing instrument was acknowledged before me in Pueblo County, Colorado this day of , 19 by Michael Occhiato as President of the City Council and Marian D. Mead as City Clerk of the City of Pueblo, a Municipal Corporation. Witness my hand and official seal. My commission expires: [S E A Lj Notary Public TJ 23.42 - SUBDIVISION EXEMPTION NO. 86 -9 A parcel of land located in the County of Pueblo, State of Colorado, to -wit: A parcel of land located in the El of the SWJ and the Wj of the SEI of Section 30, Township 20 South, Range 63 Hest of the 6th Principal Meridian, said parcel being more particularly described as follows; Beginning at a point from which the NM corner of said Section 30 bears N 37 11' 29" M (Bearings based on the north line of said Section 30 to bear N 89° 59' 27" E), a distance of 4029.00 feet; thence along the arc of a curve to the left whose center bears N 13° 08' 26" E. having a central angle of 16' 54' 58" and a radius of 290.00 feet, a distance of 85.62 feet; thence N 86° 13' 28" E. a distance of 228.44 feet; thence S 01° 33' 08' E. a distance of 784.06 feet; thence S 88° 25' 20" W, a distance of 313.07 feet; thence N O1° 33' Or M, a distance of 784.60 feet to the Point of Beginning. Said parcel contains SAG acres, ■ore or less. This is to certify that this description was prepared under my direct supervision. PARCEL 8 A parcel of land located in the County of Pueblo, State of Colorado, to -wit: A parcel of land located in the VI of the SEI of Section 30, Township 20 South, Range 63 Nest of the 6th Principal Meridian, said parcel being more particularly described as follows; Beginning at a point from which the NW corner of said Section 30 bears N 40 38 43" W (bearings based on the north line of said Section 30 to bear N 89° 59' 27" E), a distance of 4219.41 feet; thence N 86 13' 28" E, a distance of 309.02 feet; thence S 01' 33' 08" E, a distance of 795.91 feet; thence S 88' 25. 20" W, a distance of 308.79 feet; thence N O1' 33' 08" W, a distance of 784.06 feet to the Point of Beginning. Said parcel contains S.60 acres, more or less. This is to certify that this description was prepared under my direct supervision. • 4 i 4 �- Mini? 6116 •