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HomeMy WebLinkAbout05893RESOLUTION NO. 5893 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION AND THE PUEBLO DEVELOPMENT FOUNDATION, INC. CONCERNING THE TRANSFER OF LAND AND IMPROVE- MENTS AT PUEBLO MEMORIAL AIRPORT AND RELATING TO THE KURT MANUFACTURING COMPANY'S PROJECT BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that: SECTION 1. The Agreement dated September 8, 1986 between the City of Pueblo, a Municipal Corporation and the Pueblo Development Foundation, Inc. (herein "Foundation "), a copy of which is attached hereto and incorporated herein, having been approved as to form by the City Attorney, is hereby approved. The President of the City Council is hereby directed and authorized to execute the Agreement for and on behalf of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. INTRODUCED: September 8, 1986 By KENNETH HUNTER Councilman ATTEST: APPRa-te,7 - Ci Clerk President of the City Council AGREEMENT This Agreement entered into this 8th day of September, 1986 between Pueblo, a Municipal Corporation (herein "City ") and Pueblo Development Foundation, Inc., a Colorado nonprofit corporation (herein "Foundation "), WITNESSETH: Whereas, City is the owner by conveyance from the United States Government of certain land known as the Pueblo Memorial Airport, Pueblo County, Colorado; and Whereas, it would be in the best interest of the City and in the public interest if portions of the airport property not required for aviation or airport use be transferred and be reused and developed for industrial purposes; and Whereas, such reuse and development of portions of the airport industrial property would increase the tax base and availability of jobs and promote the economic expansion of the City; and Whereas, Foundation has proposed a plan for the reuse and development of a portion of the airport property for industrial use; and Whereas, the property to be developed is surplus to the City's needs. Now, Therefore, in consideration of the foregoing and mutual promises set forth herein, City and Foundation agree as follows: 1. Foundation and Kurt Manufacturing Company (herein "Company ") will or have entered into an agreement for the purchase and sale of property at Pueblo Memorial Airport described in Exhibit A to the Agreement (herein "Property "), which agreement in substantial form is attached hereto and incorporated herein (herein "Agreement "). 2. City does hereby consent to and approve the terms and provisions of the Agreement and subject thereto will perform all acts required on its part to be performed under the Agreement including granting to Company the options set forth in paragraph 6 thereof. 3. Immediately prior to the time of closing of the purchase of the Property under the Agreement, City will convey title to the Property to Foundation. 4. All funds received by Foundation from Company under the Loan Agreement between Foundation and Company shall be the property of Foundation to be used solely for the development of the Pueblo Memorial Airport in accordance with Foundation's corporate purposes. Foundation shall annually submit to the City an accounting of all funds received from Company. 5. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Executed the day and year first above written. ATTEST: j Cit Jerk C [S E A L] PUEBLO, A MUNICIPAL CORPORATION By Pr6sident of the City Council ATTEST: PUEBLO DEVELOPMENT FOUNDATION, INC. t. >a Secretary Pr sid t [S E A L] -2- AGREEMENT THIS AGREEMENT entered into as of 1 1 % day of ( gg t M1 F .F' 1986 between the Pueblo Development Foundation, Inc., a Colorado Nonprofit Corporation (herein "PDF ") and Kurt Manufacturing Company, a Minnesota Corporation, (herein "Company "), WITNESSETH: WHEREAS, PDF is or will be the owner by conveyance from the City of Pueblo (herein "City ") of certain property located at Pueblo Memorial Airport, Pueblo County, Colorado, and WHEREAS, Company is desirous of purchasing the property on the terms and conditions hereinafter set forth. NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, PDF and Company agree as follows: 1. Sale and Purchase. (a) PDF does hereby sell, and Company does hereby purchase upon the terms and conditions herein, for a purchase price of $250,000.00 (herein "Purchase Price ") payable as herein provided, approximately 4.47 acres, more or less, of real property located at Pueblo Memorial Airport, Pueblo County, Colorado described in Exhibit "A" attached hereto and incorporated herein and all improvements and buildings located thereon in their present condition as is, (herein "Property "). Company acknowledges that City owns the Property subject to restrictions in the deed to the City recorded in Book 1074, Page 87, Instrument No. 819072 of the records of the Clerk and Recorder of Pueblo County, Colorado. (b) The Purchase Price shall be paid in 119 equal consecutive monthly installments of $2,084.00 and one final monthly installment of $2,004.00, without interest commencing the fifth day of the calendar month after closing and on the fifth day of each month thereafter until the Purchase Price is paid in full. The Purchase Price will be evidenced by' Company's Promissory Note and secured by a first Deed of Trust on the Property. The,.Promissory Note and Deed of Trust shall=be in the form and content customarily used by lending institutions in Pueblo, Colorado and approved by the attorney for PDF. The Promissory Note shall provide for interest at the rate of 12% per annum on the unpaid principal balance in the event of default and acceleration thereunder. 2. Conveyance. PDF shall convey to Company marketable title to the Property by general warranty deed substantially in the form of Exhibit "A" attached hereto and incorporated herein, free of liens, encumbrances, taxes (except current year taxes which will be prorated to date of closing) and assessments. At closing, the deed will be duly executed and acknowledged for recording. 3. Closing. The closing of the transaction contemplated by this Agreement shall be in Pueblo, Colorado at a time and date designated by PDF, on or before September 30, 1986 (herein "closing date "). The date of closing hereunder may be changed without amendment to this Agreement by mutual written consent of PDF and Company. If the closing does not take place on or before closing date or such later date as PDF and Company shall mutually agree to in writing, this Agreement shall become null and void. 4. Conditions Precedent to Closing. The Purchase and sale herein contemplated is contingent upon and subject to the following: (a) Receipt by Company of a standard ALTA owners title insurance policy, or commitment therefor, in the amount of the estimated value of the Property as improved satisfactory to Company, insuring title to the Property free of liens, encumbrances, taxes (except current year) and assessments. All costs and premium for such title insurance shall be paid by Company. (b) Prior approval of the Federal Aviation Administration (herein "F.A.A. ") and its issuance of all necessary Deeds of Release for the Property. (c) Pueblo County granting an exception from its subdivision regulations for the Property or the inclusion of the Property in an approved subdivision. (d) Receipt by PDF of Company's Promissory Note and Deed of Trust described in paragraph 1 (b) hereof and a certified copy of a resolution of Company's Board of Directors authorizing the transactions herein contemplated. If any of the above conditions precedent to closing are not complied with prior to closing, Company or PDF may terminate this Agreement and each party shall be released from all obligations hereunder. r 5. Company's Representations. Company represents, warrants and agrees, subject to closing, as follows: (a) Company is duly organized, validly existing and in good standing under the laws of Minnesota and authorized to do business in the State of Colorado. Company is empowered and is duly authorized to execute and deliver this Agreement and its Promissory Note and Deed of Trust described in paragraph 1 (b) hereof and to perform its obligations hereunder. (b) Company- acknowledges and agrees that the creation of jobs by Company is the primary purpose for PDF to enter into this Agreement and is the major consideration and benefit accruing to the City for the transfer of the Property hereunder. Therefore, -2- Company agrees to use its best efforts in good faith to employ at its facility on the Property approximately 100 employees within one year after closing. (c) Company shall commence manufacturing and be in actual production of its products on the Property within twelve (12) months after closing. If Company shall fail to be in actual production of its products on the Property within twelve months after closing or such different time as PDF and Company may mutually agree to in writing, title to the Property will revert to PDF. If the Property so reverts to PDF and if PDF gives written notice to Company of its exercise of its right of reversion and tenders to Company all sums actually paid to PDF by Company for the purchase of the Property, Company shall execute and deliver to PDF a special warranty deed conveying to PDF marketable title to the Property free of all liens, encumbrances (except Company's deed of trust described in paragraph 1 (b)) and taxes, and covenants, restrictions, easements and rights -of -way placed thereon by the acts or defaults of Company. (d) Company shall, at its own expense, cause all utilities and roads used or to be used by the Company on the Property to be extended to the Property and installed upon the Property and shall maintain and keep in good repair all such utility extensions and roads on the Property. As long as City retains jurisdiction over William White Boulevard and Keeler Parkway Drive, City will endevor to manage vehicle traffic thereon so that such traffic will not unreasonably interfere with Company's use of the Property. City does not by this provision waive, nor shall it be construed to have waived, any of its rights or immunities under the Colorado Governmental Immunity Act. (e) Company shall keep and maintain the Property and all improvements thereon including landscaping in a good, clean, safe and orderly condition, free of waste, rubbish, debris and trash and will enclose and screen from public view by a solid fence all unsightly areas of the Property and those areas used for storage. (f) Waste water discharged from the Property into City's sanitary sewer system and Company's use thereof are limited by and subject ta' 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 and amended. (g) Company shall comply with notification and review requirements of the F.A.A. prior to construction, modification or alteration of any building or structure on the Property. (h) Company shall pay to City a combined service fee for services and facilities now furnished by City at the Pueblo Memorial Airport, namely: sewage treatment, public street -3- maintenance, fire protection, and street lighting based upon $250.00 per acre per annum payable monthly for each acre of land conveyed to Company hereunder. City may, from time to time, reduce or eliminate any or all of the services or facilities presently being furnished and may modify, increase, or decrease the annual combined service fee provided (i) such services and fee shall be non - discriminatory among other tenants and owners of land at Pueblo Memorial Airport receiving such services and facilities, and (ii) such fee shall be reasonable in relation to City's actual cost and expense of furnishing the services and facilities then being furnished. City's cost may include the cost of capital improvements amortized over the useful life of the improvements. (i) Company agrees and acknowledges that City reserves the right, without any obligation on its part to do so, to maintain and keep in repair the landing area of the airport and other public areas or facilities at the Pueblo Memorial Airport and to develop, modify, change, relocate, abandon, or improve the Pueblo Memorial Airport, or any part hereof, as it may determine in its sole and absolute discretion, at any time. Company further acknowledges and agrees that neither PDF or City has made, nor by any provision of this Agreement shall City or PDF be construed to have made any representation or warranty to the contrary relating thereto. (j) The Property to be conveyed to Company hereunder is a portion of land City desires to develop into an industrial park. City in developing the industrial park intends to prepare and record appropriate restrictive covenants restricting the development and use of the land adjacent to the Property to industrial and commercial development and uses which are generally compatible with Company's contemplated use for the Property. City agrees to consult with Company in the preparation of such restrictive covenants for the industrial park. Company shall subordinate the Property to such restrictive covenants and, if requested by the City to do so, will execute and record an instrument subjecting the Property thereto. r (k) At the request of City, Company shall meet and in good faith confer with the 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. Option. If Company is not in default under the provisions of this Agreement, and if Company is then employing approximately 100 employees at its facility on the Property, Company shall have the following options to purchase land adjacent to the Property at a purchase price of $1.00 per acre, for the purpose of expanding Company's facilities: (a) For a period of two (2) years from the date of closing, -4- Company shall have the option to purchase the land designated on Exhibit "B" containing 5.37 acres as Option 1, provided Company substantiates to the City that it will employ at its facilities on the Property or on Option No. 1 property an additional 54 or more employees (employees in addition to the approximately 100 employees then employed) within one year from the date of exercise of this option. The option shall be exercised by Company by delivery to PDF and City on or before the expiration of the two (2) year option period Company's written notice of its exercise of the option. If the Company does not give timely notice of its exercise of this option before its expiration, the options granted under this paragraph 6 shall automatically terminate. (b) If Company exercises option (a) above, Company shall, for a period of one year after the closing under option (a) above, have the additional option to purchase the land designated on Exhibit "B" also containing 5.37 acres as Option No. 2, provided Company substantiates to the City that it will employ at its facilities on the Property or optioned property an additional 54 or more employees (employees in addition to the approximately 154 employees then employed) within one year from the date of the exercise of this option. The option shall be exercised by Company by delivery to PDF and City on or before the expiration of the one year option period Company's written notice to exercise the option. If Company does not give timely notice of its exercise of this option before its expiration, the option hereby granted shall automatically terminate. The sale and purchase of the option property shall be closed in Pueblo, Colorado within thirty (30) days after receipt by City of Company's written notice to exercise the option. The purchase and sale of the option property is contingent upon and subject to the conditions precedent set forth in paragraphs 4(a), (b) and (c) hereof. Marketable title to the option property will be conveyed to Company by warranty deed substantially in the form and content of Exhibit "A" attached hereto. The options hereby granted may not be assigned or transferred by Company without the prior written consent of the City. Any asgignment or transfer without City's prior written consent shall be void and unenforceable against City. Upon the exercise of either of the above options, then at the request of Company, PDF through City will vacate Douglas Lane if included in the optioned property. 7. Colorado Law, This Agreement shall be governed by the laws of the State of Colorado and shall be construed in accordance therewith. 8. No Waiver. No provision of this Agreement may be waived except by an agreement in writing signed by the waiving party. A -5- waiver of any term or provision shall not be construed as a waiver of any other term or provision. 9. Binding Effect. This Agreement shall be binding on the parties, their heirs, executors, administrators, successors or assigns. The parties agree to do any and all things necessary to effectuate the purposes of this Agreement. 10. Construction. Throughout this Agreement, the singular shall include the plural; the plural shall include the singular; and the masculine and neuter shall include the feminine, wherever the context so requires. 11. Text to Control. The headings of sections are included solely for convenience of reference. If any conflict between any heading and the text of this Agreement exists, the text shall control. 12. Severability. If any provision of this Agreement is declared by any court of competent jurisdiction to be invalid for any reason, such invalidity shall not effect the remaining provisions. On the contrary, such remaining provisions shall be fully severable, and this Agreement shall be construed and enforced as if such invalid provisions had never been inserted in the Agreement. 13. Amendment. This Agreement sets forth the entire understanding the parties and may be amended, altered or revoked at any time, in whole or in part, only by a written instrument setting forth such changes, signed by the parties hereto, except as otherwise provided in Section 3. 14. No Assignment. The Company shall not assign this Agreement or any interest therein without the prior written consent of the City. 15. Notices. All notices required to be given by this Agreement shall be made in writing and served either by: I A. Personal delivery to the party requiring notice; or B. Mailing notice via the U.S. Mail to the last known address of the party requiring notice, by first class mail, postage prepaid. Effective date of the notice shall be the date of the personal delivery as specified in paragraph A above and four (4) days after the date the notice was deposited in the U.S. Mail as specified in paragraph B above. For purposes of this section, the initial addresses of the parties hereto shall be as follows: C ' r WARRANTY DEED THIS DEED, made this day of , 198_ by and between the CITY OF PUEBLO, a Municipal Corporation, existing under the laws of the State of Colorado (herein "City ") and PUEBLO DEVELOPMENT FOUNDATION, a Colorado Nonprofit Corporation (herein "Company "), W I T N E S S E T H: That the City for and in consideration of the sum of $10.00 and other good and valuable consideration to the 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 Exhibit "A" 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 and easements for the existing sanitary sewer, water and natural gas lines 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 the City, its successors and assigns. 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 Memorial 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 4685 feet above the mean sea level. 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 offices and manufac- turing facilities. The Property shall not be used for smelting operations, or for any purpose 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 underground storage facilities. -2- (b) Parking areas for vehicles and roads on the Property shall be paved. Outdoor storage shall not be permitted. (c) The Property shall not be subdivided and no building or structure over 60 feet in height shall be installed or constructed on the Property. (d) No structure or building shall be constructed or installed nearer than 75 feet of the right -of -way line of Keeler Parkway or 25 feet of side or rear streets. There must be installed and maintained a minimum 25 -foot strip of landscaped ground adjacent to Keeler Parkway and adjacent to other abutting streets. Minimum side yards set - backs shall be 25 feet. No access from Keller Boulevard to the Property is permitted at this time. (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 waste, 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 on 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 twenty -five (25) working 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) Waste 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. (h) City reserves the right to waive all or any part of these Restrictive Covenants. 5. At the request of City, Company shall meet and in good -3- 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 violati:n thereof or arising out of their enforcement. [S E A L) ATTEST: /J - Citr Clerk (S E A L) EST Secretary CITY OF PUEBLO, A MUN IPAL CORPORATION B -� President of the City Council PUEBLO DEVELOPMENT FOUNDATION Presidbrit COUNTY OF PUEBLO ) ) ss. STATE OF COLORADO ) The foregoing instrument was acknowledged before me in Pueblo County, Colorado this , - a day of , 1987 by Michael Occhiato as President of the City 0ouncil of Pueblo, Colorado and Marian D. Mead as City Clerk of the City of Pueblo, Colorado. -4- Witness my hand and official seal. My commission expires: //_ 13- Y ? (S E A L] Notary Public COUNTY OF PUEBLO ) ) ss. STATE OF COLORADO ) The foregoing instrument was acknowledged before me in Pueblo County, Colorado this �� day of 1987 by . A. Foo�w.,n as President and as SecretVary of Pueblo Development Foundation, a Color Nonprofit Corporation. Witness my hand and official seal. My commission expires: 411.4/q(" IS E A L] 4NotyPublic TJ 11.64 -5- EXHIBIT "A" TO WARRANTY DEED BETWEEN CITY OF PUEBLO LAIMP PUEBLO DEVELOPMENT FOUNDATION PARCEL D A parcel of land located in the County of Pueblo, State of Colorado, to -wit: A parcel of land being a portion of the N3 of the SW} and the Sj of the NW} of Section 30, Township 20 South, Range 63 West of the 6th Principal Meridian, being more particularly described as follows: Commencing at a point from which the NW corner of said Section 30 bears N 15 41' 24" W (Bearings are based on the North line of said Section 30 to bear N 89° 59' 27" E), a distance of 2371.24 feet; thence S O1° 31' 26" E, a distance of 220.00 feet to the True Point of Beginning; thence N 88° 26' 39" E, a distance of 389.14 feet; thence S 01 31' 52" E. a distance of 500.33 feet; thence S 88° 27' 57" W, a distance of 389.20 feet; thence N O1 31' 26" W, a distance of 500.18 feet to the True Point of Beginning. Said parcel contains 4.47 acres, more or less.