HomeMy WebLinkAbout7694RESOLUTION NO. 7694
A RESOLUTION APPROVING AN AGREEMENT BETWEEN
PUEBLO, A MUNICIPAL CORPORATION AND JONES TONES,
INC. RELATING TO A JOB CREATING CAPITAL
RvIPROVEMENT PROJECT AND AUTHORIZING THE
EXPENDITURE OF $500,000 THEREFOR FROM THE 1992
SALES AND USE TAX CAPITAL IMPROVEMENT PROJECT
FUND
WHEREAS, Jones Tones, Inc. has expressed a willingness to locate its business activities
at the Pueblo Memorial Airport Industrial Park and has committed to employ one hundred (100) full
time employees, and
WHEREAS, Jones Tones, Inc. through the Pueblo Economic Development Corporation has
made application for funds from the 1992 Sales and Use Capital Improvement Project Fund, and
WHEREAS, the City Council is willing to approve such application for funds upon the terms
and conditions set forth herein; NOW, THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1
The City Council does hereby find and determine that Jones Tones, Inc.'s application for
funds meets and complies with the criteria and standards established by Ordinance No. 5742 ar.d
will create employment opportunities justifying the expenditure of public funds.
SECTION 2
The Agreement dated August 28, 1995 between Pueblo, a municipal corporation and Jones
Tones, Inc., in substantially the form and content of the Agreement attached hereto, having been
approved as to form by the City Attorney, is hereby approved. The President of the City Council
is authorized to execute and deliver the Agreement, with such changes thereto as the President of
the City Council and City Attorney shall approve, in the name of the City and the City Clerk is
authorized and directed to affix the seal of the City thereto and attest same.
SECTION 3
Funds in an amount of $500,000 are hereby authorized to be expended and made available
to Jones Tones, Inc. out of the 1992 Sales and Use Tax Capital Improvement Fund for the sole
purpose of reimbursing it for the cost of the job creating capital improvement project described in
the attached Agreement. The funds hereby authorized to be expended shall be released and paid by
the Director of Finance to or for the benefit of Jones Tones, Inc. after receipt (i) by the City Clerk
of the documents required to be filed pursuant to paragraph 3(a) of the Agreement and (ii) by the
Director of Finance of written requests for payment required by paragraph 3(c) of the Agreement.
SECTION 4
This Resolution shall become effective upon final passage.
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ATTEST:
L wm� - •` �, • ♦
INTRODUCED: August 28, 1995
Charles Jones
Councilperson
APPR VED:
r
President of the City Council
J:\ CITY \AIRPORnJONETONE \RESOLU'PI.WPD -2
AGREEMENT
THIS AGREEMENT entered into as of August 28, 1995 between Pueblo, a municipal
corporation (the "City ") and Jones Tones, Inc., a California corporation (the "Company ").
WHEREAS, Company has expressed a willingness to locate its business within the Pueblo
Municipal Airport Industrial Park, and in furtherance thereof has through the Pueblo Economic
Development Corporation made application for funds with the City, and
WHEREAS, the City has approved such application and will make funds available to
Company subject to and upon the terms and conditions of this Agreement.
1. The following terms as used in this Agreement shall have the following meaning
unless the context clearly indicates otherwise:
"Facility" means the approximately 50,000 square foot manufacturing building to be
constructed on the Property.
"Full -Time Employee" means a person who performs work at the Property for not less than
thirty-two (32) hours per week whether employed by Company or by an outside entity acting as an
agency to provide Full -Time Employees for Company. The term "Full -Time Employee" does not
include independent contractors nor employees of independent contractors except as described
herein.
"Improvements" means the construction and installation of the Facility and other on -site
improvements to be installed in accordance with the Plans and Specifications.
"Lease" means the lease between Company and PDF for the Property which will be for a
term of not less than ten (10) years.
"Quarterly Employees" means the sum of the number of Full -Time Employees on each
business day of a Quarter divided by the sum of the business days in such Quarter.
"PDF" means the Pueblo Development Foundation.
"Quarter" means three consecutive calendar months.
"Plans and Specifications" means the plans and specifications for the Improvements
approved by PDF and Company and incorporated into the Lease.
"Property" means the approximately 10 acres of land and Improvements thereon located at
Pueblo Memorial Airport described as Lot 74, Pueblo Memorial Airport Industrial Park Subdivision,
Pueblo County, Colorado.
2. Company shall enter into the Lease and locate its business on the Property in an
expeditious manner.
3. City will make available to or for the benefit of Company funds in the amount of
$500,000 (the "City Funds "). Company shall spend or cause to be spent City Funds for the cost of
Improvements, subject to and contingent upon: t
(a) Company filing in the office of the City Clerk copies of the following: (i)
Executed Lease, (ii) Company's certificate of authority to transact business in the State of Colorado
and Certificate of Good Standing issued by the Colorado Secretary of State, (iii) Certified copy of
the resolution of the board of directors of Company approving this Agreement and authorizing its
officers to execute and deliver this Agreement in the name of Company, and (iv) evidence
satisfactory to City that Company is diligently proceeding to locate its business on the Property.
The date of such filings is herein referred to as "Closing."
(b) All construction contracts for Improvements for which payment is sought
from City shall be awarded after competitive bidding which allows qualified local contractors to
reasonably participate in the competitive bidding procedures.
(c) Company filing with the Director of Finance of City written request for
payment certified by an officer of Company that the amounts included in the requests for payment
have not been included in any prior request for payment and are for the actual cost of
Improvements, identifying the Improvements for which payment is sought, including certificates
of the architect and general contractor that such Improvements have been installed in accordance
with Plans and Specifications.
4. Company acknowledges that the primary purpose of City in entering into this
Agreement and the sole benefit to the City for making funds available to Company hereunder is the
creation of jobs. Therefore, Company represents and commits that it will employ at the Property
one hundred (100) Full -Time Employees (the "Employment Commitment ").
5. Notwithstanding anything contained herein to the contrary, if Company shall for any
reason default in its Employment Commitment set forth in paragraph 4 hereof, Company shall repay
to City a pro -rata share of the City Funds advanced by City under paragraph 3 hereof based upon
the number of Full -Time Employees employed by Company at the Property (the "Repayment
Obligation "), as follows:
Seu �h
(a) During the five (5) year period starting on the first day of the semonth
after the Commencement date of the Lease and ending sixty (60) months thereafter (the "Repayment
Period ") Company shall pay to City an amount each Quarter equal to the Quarterly Employees less
than (i) during each Quarter of the first 6 months of the Repayment Period, forty (40), (ii) during
each Quarter of the second 6 months of the Repayment Period, sixty (60), (iii) during each Quarter
of the third six (6) months of the Repayment Period, eighty (80), and (iv) during each Quarter of
the Repayment Period thereafter, one hundred (100) employed at the Property by Company
multiplied by $250.00 (the "Company's Quarterly Payments "). For example, if for the Quarter
l ,,
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ending June 1998 the Quarterly Employees is 90, the amount payable by Company to City on or
before July 15, 1998 would be (100 - 90) x $250.00 = $2,500.00.
(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. All past due Company's
Quarterly Payments shall bear interest at the rate of ten (10) percent per annum until paid.
(c) Within fifteen (15) days after the end of each Quarter during the Repayment
Period and for one calendar month thereafter, Company will submit to City's Director of Finance
Company's statement showing the Quarterly Employees for the preceding Quarter and the basis
upon which Quarterly Employees and Company's Quarterly Payment were computed certified by
an officer of the Company to be true and correct. For purposes of verifying such employment, City
shall have access to Company's books and records including payroll records. City will, however,
respect the right of employees as to confidentiality of personnel records.
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 Obligations contained in this paragraph 5 and shall be secured by a prior
perfected security interest in Company's equipment. Company shall provide all information and
shall execute all documents and instruments required to grant to City a prior perfected security
interest in Company's equipment before City will advance any funds under this Agreement.
6. (a) City Council of City may, in its sole discretion, relieve Company, in whole
or in part, from Company's Repayment Obligations set forth in paragraph 5, if the City Council,
after public hearing, finds and detennines based upon competent evidence presented at such hearing
that Company was prevented from complying with its Employment Commitment by reason of an
act of God, or the elements, fire, explosion, strike, insurrection, riot, shortage or unavailability of
materials, supplies or labor, interruption of transportation facilities, governmental laws, regulations
or restrictions, or other causes beyond Company's reasonable control. The findings and decision of
the City Council shall be final and binding upon Company and City.
(b) Prior to instituting any proceedings to enforce Company's Repayment
Obligation under paragraph 5, City shall notify Company in writing of its intention to institute such
proceedings. If Company desires to seek relief pursuant to paragraph 6(a), Company, within twenty
(20) days after receipt of City's notice, shall deliver to City its written request for relief specifying
the grounds upon which such relief is sought. Within sixty (60) days after receipt of Company's
request, City will schedule a hearing before the City Council and give written notice to Company
of the time and place of such hearing. Failure of Company to timely deliver its written request for
relief or to appear and submit evidence in support of its request at a scheduled hearing shall
constitute a waiver of any right of company to a hearing before City Council.
(c) No delay or failure by City to exercise its right to enforce Company's
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Repayment Obligation, and no partial or single exercise of that right, shall constitute a waiver of that
right, unless the City Council otherwise expressly provides in its findings and decision made
pursuant to paragraph 6(a).
7. If Closing does not occur on or before December 1, 1995, this Agreement shall
terminate and City and Company shall be released and discharged from all obligations hereunder.
8. If Company is not in default under the provisions of this Agreement, Company shall
have the following options with respect to the approximately 10 acres of land located easterly of the
Property and described as Lot 73, Pueblo Memorial Airport Industrial Park Subdivision, Pueblo
County, Colorado (the "Land ") for the purpose of expanding Company's business on the Land:
(a) For a period of three (3) years from the date of this Agreement (the "Option
Period "), Company shall have the option to purchase the Land for a purchase price of $10.00,
provided Company documents to City's satisfaction that Company will within one (1) year from the
date of Company's exercise of the option (i) employ at its facility to be constructed on the Land
thirty -five (35) or more Full -Time Employees in addition to the one hundred (100) Full -Time
Employees committed under paragraph 4 hereof and (ii) Company will construct on the Land a
facility of not less than 25,000 square feet for manufacturing purposes. The option shall be
exercised by Company delivering to City during the Option Period Company's written notice of its
exercise of the option together with satisfactory documentation of employment. If Company does
not give written notice of the exercise of the option and satisfactory documentation of employment
to City within the Option Period, Company's option to purchase shall cancel and terminate.
(b) For a period of two (2) years after the expiration of the Option Period (the
"Refusal Period "), Company shall have the right of first refusal to purchase the Land for a price
equal to its then fair market value as determined by a qualified MAI appraiser designated by the City
plus the cost of such appraisal. If the City intends to sell or transfer the Land during the Refusal
Period, City shall give written notice of its intent to Company. Company shall within thirty (30)
days after notice of City's intent has been given to Company, given written notice to City of the
exercise of its right of first refusal. If Company does not give written notice to the City of the
exercise of its right of first refusal within said thirty -day period, Company's right of first refusal
shall cancel and terminate.
(c) The sale and purchase of the Land shall be closed in Pueblo, Colorado within
sixty (60) days after receipt by City of Company's written notice to either exercise its option to
purchase together with satisfactory documentation of employment or its right of first refusal,
whichever the case may be, subject to and contingent upon:
(i) Prior approval of the Federal Aviation Administration and its issuance
of all necessary deeds of release for the Land.
(ii) All costs of closing including title insurance shall be paid by
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Company.
(d) The land shall be sold and purchased "AS IS" and "WHERE IS" at the time
of closing. Company acknowledges and agrees that City has not and does not make any
representation or warranty concerning the Land, either environmental or otherwise. Company
waives and releases City from, and assumes the risk of any environmental condition or liability
relating to any environmental condition in, on, under or within the Land, including any claim under
any state or federal statute, whether known or unknown, or now existing or arising in the future.
(e) Title to the Land will be conveyed by City to Company by warranty deed
substantially in the form and content of Exhibit "A" attached to the Lease. If Company purchases
the Land pursuant to paragraph 8(a) above, the warranty deed shall contain a covenant that if
Company does not within two (2) years from the date of the warranty deed construct on the Land
a facility of not less than 25,000 square feet for manufacturing purposes and employ at least thirty -
five (35) or more Full -Time Employees at its facility on the Land, title to the Land shall revert to
the City.
(f) Neither the option to purchase nor the right of first refusal granted hereby
shall be assigned, sold or otherwise transferred by Company. Any assignment, sale or other transfer
shall be void and unenforceable against City.
9. In the event of any litigation arising out of this Agreement, the court shall award to
the prevailing party its costs and reasonable attorney fees. All such litigation shall be filed in the
District Court, County of Pueblo, State of Colorado and each party submits to the jurisdiction of that
Court. Each party waives its right to a jury trial.
10. This Agreement expresses the entire understanding of the parties and supersedes any
and all prior dealings and commitments with respect to the subject matter of this Agreement and
may not be amended except in writing signed by City and Company.
11. This Agreement shall be construed in accordance with and governed by the laws of
the State of Colorado.
12. Any notices hereunder shall be sufficiently given if given personally or mailed by
first class mail, postage prepaid, addressed:
(a) if to City, City Manager, City of Pueblo, 1 City Hall Place, Pueblo, Colorado,
81003, or
(b) if to the Company, 68743 Perez Road, D -16, Cathedral City, California,
92234;
or to such other address as either party shall specify in written notice given to the other party.
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13. 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. Any assignment or attempted assignment of this
Agreement by Company shall be null and void.
14. The person signing this Agreement on behalf of Company represents and warrants
that such party 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.
15. This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the same instrument.
Executed at Pueblo, Colorado, the day and year first above written.
[SEAL]
PUEBLO, A MUNICIPAL CORPORATION
ATTEST:
City rk
[SEAL]
By
L— � �
esident of the City Council
JONES TONES, INC.
ATTEST:- By
Secreta. President
J:\CITY\AIRPORTUONETONE\AGRMNT.WPD
IRE
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D
ED
City of Pueblo
OFFICE OF THE CITY ATTORNEY
127 Thatcher Building
PUEBLO, COLORADO 81003
TO: Gina Dutcher, City Clerk
FROM: City Attorney
RE: PDF /Jones Tones Transaction
DATE: September 6, 1995
We obtained the signatures of the officers of Pueblo Development Foundation on the enclosed
documents and now need the signatures of the officers of the City, as follows:
(a) Warranty Deed, two counterparts - please have City officials execute both and
acknowledge, and return one executed copy to me for recording. Retain the other in your file.
(b) Agreement - two counterparts, please have City officials execute and return one
executed counterpart to me. Retain the other in your files. Do not sign the deed attached to the
Agreement.
If you have any questions, please call me.
Very truly yours,
Thomas E. J f
IeS Se
sm 9 — a-95
enc.
LEASE
THIS LEASE, entered into as of the day of September,
1995, by and between Pueblo Development oundation, a Colorado
nonprofit corporation (the "Lessor ") and Jones Tones, Inc., a
California Corporation (the "Lessee "), WITNESSETH:
WHEREAS, Lessor is or will be the owner by conveyance from
the City of Pueblo (the "City ") of the approximately 5 acres of
land described as Lot 74, Pueblo Memorial Airport Industrial Park
Subdivision, which land is located at Pueblo Memorial Airport
Industrial Park, Pueblo County, Colorado; and
WHEREAS, Lessee is desirous of leasing and obtaining the
option to purchase the land and facility described in this Lease
upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises,
covenants and conditions contained herein, Lessor and Lessee
hereby agree as follows:
Article 1. Leased Premises:
1.01 Lessor hereby leases to Lessee and Lessee hereby leases
from Lessor, subject to the covenants, provisions and conditions
herein, those certain premises situated in the County of Pueblo,
State of Colorado, and more particularly described as Lot 74,
Pueblo Memorial Airport Industrial Park Subdivision, together
with the Facility to be constructed thereon as provided in
Article 2 (the "Leased Premises ").
1.02 This Lease and Lessee's use of the Leased Premises
are further subject to the covenants, conditions, restrictions
and limitations set forth in the Warranty Deed attached hereto as
Exhibit "A ". Lessee agrees to abide by and comply therewith the
same as if they were specifically incorporated herein and for
such purpose wherever the word "Company" appears in the Warranty
Deed it shall be construed to mean and include the Lessee.
Article 2. Construction of Facility.
2.01 Lessor shall cause to be constructed on the Leased
Premises an approximately 50,000 square foot manufacturing
facility (the "Facility ") and shall pay the actual cost of the
design and construction of the Facility up to but not to exceed
$1,650,000 (the "Construction Costs "). The Construction Costs
include the $500,000 City has agreed to make available to Lessee
(the "City Funds ") and Lessee shall in a timely manner cause City
Funds to be made available to Lessee for the construction of the
Facility. If the actual cost of the design and construction of
the Facility exceeds the Construction Costs, the excess cost
shall be paid by Lessee in a timely manner and as required by the
Construction Contract for the Facility; provided, however, that
any change in the Contract Documents described in Article 2.02(a)
which increases the Construction Costs (except changes in the
work required to construct the Facility in compliance with the
Contract Documents) shall be made only with the consent of both
Lessee and Lessor.
2.02 The Facility shall be designed and constructed
(a) in accordance with the plans, specifications
and other documents prepared by HGF Architects, Inc., (the
"Architect ") (the "Contract Documents ") approved by Lessor and
Lessee, and incorporated herein as if set out herein in full; and
(b) by a general contractor selected by Lessor
after competitive bidding which allow qualified local contractors
to reasonably participate in the competitive bidding procedures
(the "General Contractor ").
2.03 Lessor and Lessee shall cooperate in good faith with
each other to cause the Facility to be substantially completed
and ready for occupancy on or before December 11, 1995. The
failure to substantially complete and have the Facility ready for
occupancy by December 11, 1995, shall not affect the validity of
this Agreement nor the obligations of Lessor and Lessee
hereunder.
2.04 The failure of Lessor and Lessee to approve or reject
any proposed Contract Document, or any change or modification
thereto, or any proposed change in the work within the general
scope of construction contemplated by the Construction Document,
within ten (10) business days after receipt thereof shall
constitute approval thereof.
2.05 Whenever in this Article 2 or in any other Article of
this Lease, the approval or consent of Lessor or Lessee is
required, such approval or consent shall not be unreasonably
withheld or delayed.
Article 3. Term.
The term of this Lease shall be ten (10) years commencing
upon notice of substantial completion given by Lessor to Lessee,
(the "Commencement Date ") and ending one hundred and twenty (120)
months thereafter (the "Termination Date ") unless sooner
terminated as herein provided. Lessor and Lessee acknowledge and
agree that certain obligations under various articles and
sections of this Lease shall commence prior to Commencement Date,
including but not limited to Article 2, Construction of Facility
and Lessor and Lessee agree to and are bound by any such article
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or section prior to the Commencement Date.
Article 4. Rent.
4.01 Lessee shall pay to Lessor monthly rent for the
Leased Premises during the Term as follows: $12,000 each month
during the first twenty -four (24) months of the Term and
$15,553.00 each month for the next ninety -six (96) months of the
Term. Rent is payable monthly in advance, without notice or
demand, with the first monthly payment due on Commencement Date,
and subsequent payments due on the same day of each month
thereafter. All payments shall be made at or mailed by United
States mail to the following address: P. 0. Box 1663, Pueblo,
Colorado 81002, or such other address as Lessor may from time to
time designate to Lessee in writing. The parties acknowledge
that the amount of monthly rent set forth herein is directly tied
and equal to the amount of each monthly payment due on the loan
to be obtained by Lessor in the form of its permanent financing
of the Property. Lessor agrees to apply each monthly rental
payment to the amounts due under its loan on the Property.
4.02 Lessee shall pay a late charge of five percent (5%)
of any monthly rent not paid by the fifteenth (15th) day of the
month in which it was due. In addition, all rent and other
payments required to be made by Lessee hereunder which shall
remain unpaid ten (10 days after their due dates shall bear
interest at the rate of ten percent (10 %) per annum.
4.03 Lessee's obligation to pay rent to Lessor hereunder
is absolute and unconditional and rent shall not be offset,
abated, reduced or withheld for any cause or reason whatsoever.
4.04 It is the intent of the parties hereto that this
Lease be a "triple net" lease with Lessor incurring no
obligation, monetary or otherwise, except for Lessor's Loan.
Article 5. Use of Leased Premises.
5.01 The Leased Premises shall be used and occupied by
Lessee for manufacturing and /or warehousing and incidental office
purposes associated with or incident to Lessee's business
activities.
5.02 Lessee shall use the Leased Premises in a careful,
safe and proper manner in compliance with all laws and
regulations applicable to the Leased Premises and Lessee's use
thereof. Lessee shall not cause, maintain or permit any nuisance
or waste in, on, or about the Leased Premises.
5.03 Lessee shall not abandon nor cease to conduct
business from the Leased Premises for any period longer than 180
consecutive days.
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5.04 Lessee 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 thereof, as it may determine in its
sole and absolute discretion, at any time. Lessee further
acknowledges and agrees that City has not made, nor by any
provision of this Lease shall City be construed to have made any
representation or warranty to the contrary relating thereto.
Article 6. Condition of Premises.
Prior to the taking of possession of the Leased Premises,
Lessee shall be afforded the opportunity to conduct an inspection
and walk through of the leased premises. The taking of
possession of the Leased Premises by Lessee shall be conclusive
evidence that Lessee accepts the Leased Premises in its then
present condition "As Is" and that the Leased Premises are in
good and satisfactory condition at the time such possession was
taken. The taking of possession by Lessee shall not be construed
as a waiver by Lessee or by Lessor of their respective rights to
have the Facility constructed in accordance with the Contract
Documents.
Article 7. Alterations and Improvements.
7.01 Lessee shall not make any additions, alterations or
improvements in or to the Leased Premises ( "Alterations ") without
Lessor's prior written consent. Lessee shall not permit or allow
any lien to be filed or recorded against the Leased Premises or
Lessor's interest therein and Lessee shall fully cooperate with
Lessor in obtaining the protection afforded Lessor under Section
38 -22 -105, C.R.S. All alterations made in or to the Leased
Premises by Lessee shall become the property of Lessor and be
surrendered with the Leased Premises at the termination of this
Lease.
7.02 All equipment, fixtures and improvements of a
detachable or temporary nature placed upon the Leased Premises by
Lessee, shall remain the property of Lessee, subject to Lessee's
right, at its option, to remove same not later than sixty (60)
days after termination of this Lease. Lessee, at its expense,
shall promptly repair any damage resulting from such removal.
The failure of Lessee to remove its equipment, fixtures and
detachable improvements within thirty (30) days after termination
of this Lease shall, at the option of Lessor, be deemed
abandonment of such property.
n
Article 8. Repairs and Maintenance.
8.01 Except for construction of the Facility as provided
in Article hereof, Lessor shall not be obligated to repair,
maintain or alter the Leased Premises or any part thereof.
Lessee, at its expense, shall keep and maintain the Leased
Premises, including, without limitation, the Facility structural
components, roofs, walls, equipment,fixtures, and electrical,
heating, plumbing and air conditioning systems, in good condition
and repair and in a good, clean and safe condition at all times
during the effective term of this Lease and return the same to
Lessor at any termination hereof in as good condition and state
of repair as the same were in as of Commencement Date, except for
loss occasioned by ordinary wear.
8.02 If Lessee becomes obligated to make repairs which are
or may be covered by any manufacturer's or contractor's warranty
issued to or for the benefit of Lessor, Lessor will assign and
transfer to Lessee its interest in any such warranty for the
purpose of making such repairs.
8.03 If Lessee becomes obligated to make repairs caused by
an occurrence covered by the insurance described in Article 12,
the net proceeds of such insurance shall be made available to
Lessee to offset the cost of such repairs.
Article 9. Right of Entry.
Lessor reserves and shall have the right at all reasonable
times to enter the Leased Premises to inspect the same or to show
the Leased Premises. Lessor shall, prior to such inspection or
showing, give reasonable notice to the Lessee of its intent to
enter the Leased Premises and shall afford Lessee the opportunity
to have a representative accompany it on such inspection.
Article 10. Assianment or Sublease.
10.01 No part of the Leased Premises shall be sublet by
Lessee.
10.02 Lessee shall not assign this Lease or any interest
therein without the prior written consent of the Lessor. Upon
any such assignment, the option to purchase under Article 17
shall automatically terminate and be cancelled.
Article 11. Insurance and Indemnification.
11.01 Lessor shall not be liable to Lessee, and Lessee
hereby waives all claims against Lessor, for any injury or damage
to the Facility or to any person or property in or about the
Leased Premises.
11.02 Lessee shall hold Lessor harmless from and defend
Lessor against any and all claims or liability, including cost of
defense and reasonable attorney fees, for any injury or damage to
any person or property, whatsoever, including personal injury:
(a) occurring in, on or about the Leased Premises or any part
thereof by or from any cause whatsoever; or (b) arising out of or
resulting from Lessee's use and occupancy of the Leased Premises
or any equipment therein or appurtenances thereto or any activity
conducted thereon.
11.03 Lessee shall secure and maintain in full force and
effect, at its expense, during the Term of this Lease,
comprehensive public liability insurance including personal
injury, property damage and contractual coverage in the minimum
amount of $1,000,000 combined single limit naming lessor as an
additional insured.
11.04 Lessee shall secure and maintain during the Term of
this Lease Colorado Worker's Compensation insurance or other
similar coverage in the statutorily mandated amounts.
11.05 A copy of each insurance policy, or certificate
thereof, issued by an association or company authorized to issue
such policy or policies under the laws of the State of Colorado
and containing a provision prohibiting cancellation or material
modification of the insurance except after thirty (30) days'
notice to Lessor, shall be delivered to the Lessor within a
reasonable time after the same has been issued, and thereafter
the Lessee will furnish to Lessor evidence of the continuance of
the insurance coverage required herein within a reasonable time
after the same has been issued.
Article 12. Fire and Extended Coveraae Insurance.
12.01 Lessee shall, at its expense, during the Term of this
Lease, secure and maintain in full force and effect "All- Risk"
(including fire, extended coverage and boiler) insurance upon the
Leased Premises. Such insurance shall be in an amount not less
than the full replacement value of the Facility and Improvements,
as such replacement value is determined by Lessee's insurance
company or association authorized to issue such policies under
the laws of the State of Colorado and approved by Lessor, shall
contain a standard Colorado mortgagee clause in favor of Lessor
and any mortgagee of Lessor's interests in the Leased Premises,
and shall not be subject to cancellation, reduction or
modification upon less than thirty (30) days' written notice to
Lessor. Such insurance, by its terms or by endorsement, shall
waive any right of subrogation of the insurer against Lessor, its
agents and employees, for any loss or damage resulting from
covered perils. Lessee will furnish to Lessor evidence of such
R
insurance and its continuance during the Term of this Lease.
12.02 Lessee shall, at its expense, secure and maintain
fire and extended coverage insurance on all fixtures, equipment
and improvements installed by Lessee on the Leased Premises.
Such insurance, by its terms or by endorsement, shall waive any
right of subrogation of the insurer against Lessor, its agents
and employees, for any loss or damage resulting from covered
perils.
Article 13. Taxes and Assessments.
13.01 Lessee shall promptly pay and discharge as they
become due and before delinquency any and all property taxes,
assessments, charges, liens, levies or excises, whether general
or special or ordinary or extraordinary, of every name, nature
and kind whatsoever, including all governmental charges of
whatsoever name, nature or kind which may be levied, charged or
imposed, or which may become a lien or charge on or against the
Leased Premises or any part thereof, the leasehold interest of
Lessee herein, or the improvements situated on the Leased
Premises during the Term of this Lease.
13.02 Lessee shall pay before delinquency any and all
property taxes levied or charged against any of the personal
property belonging to it and situated on the Leased Premises or
used in connection with the operation and maintenance of the
facility on the Leased Premises.
13.03 Lessee shall have the right to contest or review, by
legal proceedings at its own expense, and if necessary in the
name of Lessor, or in such other manner as it may deem suitable,
any tax, assessment, levy or charge herein agreed to be paid by
Lessee under this Article 13. Lessee may defer payment of any
such contested item if in connection with the proceeding
instituted by Lessee there shall have been obtained a stay of the
collection of the item so contested. In the event of such
contest, Lessee shall give Lessor written notice prior to the
commencement of any such contest which shall be at least ten (10)
days prior to delinquency of the item in contest and, on request
of Lessor, Lessee shall give to Lessor a good and sufficient
surety bond indemnifying Lessor against any such tax, assessment,
levy or other charge and from any cost, liability or damage
arising out of such contest. In the event any notices of
proposed increases in taxes, assessments, levies or charges which
are the obligation of Lessee are received by Lessor, it shall
promptly, but in no event later than 20 days after receipt
thereof, forward the same to Lessee in order that Lessee may
proceed with payment or contest procedures within the periods
provided for such purposes.
7
13.04 All rebates or refunds on account of any tax
assessments, levy or charge required to be paid and paid by
Lessee shall belong to Lessee, and Lessor will, on request of
Lessee, execute any documents which may be necessary in order to
secure the recover of any such rebates or refunds and shall
promptly pay over to Lessee any such rebates or refunds that may
be received by Lessor whether received before or after the end of
this Lease.
13.05 Lessee shall furnish Lessor within thirty (30) days
after any amount is payable by Lessee under this Article 13,
official receipts of the appropriate taxing authority or other
proof satisfactory to Lessor evidencing such payments as are
required under this Article 13.
Article 14. Utilities.
Lessee shall pay before delinquent all charges for sewer,
water, gas, electricity, telephone and all other utility services
furnished to or used upon the Leased Premises. Lessor shall not
be obligated to furnish or provide any utilities, facilities or
services of any kind.
Article 15. Damaae to or Destruction of Premises
If, during the Term of this Lease, the Leased Premises shall
be damaged to such an extent that the repair of such damage and
the restoration of the Leased premises can be accomplished, with
reasonable diligence, within one hundred and eighty (180) days
after such damage, Lessee shall promptly repair such damage and
cause the Leased Premises to be restored to their condition prior
to the event causing the damage. If, during the Term of this
Lease, the Leased Premises shall be destroyed or damaged, or
partially destroyed or damaged, to such an extent that the repair
of such destruction or damage and the restoration of the Leased
Premises cannot be accomplished, with reasonable diligence,
within one hundred and eighty (180) days after destruction or
damage, then Lessee shall promptly notify Lessor in writing of
such fact, and Lessee shall have the right, during a period of
thirty (30) days following such notification, to terminate this
Lease by written notice to Lessor, declaring this Lease to be
terminated. If this Lease is so terminated all proceeds of
insurance required to be maintained by Lessee under Article 12.01
shall be paid to Lessor. Unless such notice of immediate
termination shall be given within such period, this Lease shall
continue in full force and effect and Lessee shall promptly
repair such destruction or damage and cause the Leased Premises
to be restored to their condition prior to the event causing the
destruction or damage. If this Lease shall be terminated as
provided in this Article 15 or Article 16, Lessor shall refund to
Lessee all sums received by Lessor as rent or deposit under this
L
Lease in excess of rent due through the date of such termination,
with rent due for any part of a month to be determined by
prorating rent on a daily basis.
Article 16. Eminent Domain.
If the whole or substantial part of the Leased Premises
shall be taken or condemned by any competent authority for any
public or quasi - public use or purpose under any statute or by the
right of eminent domain, or purchased under threat of such
taking, then this Lease shall terminate on the date when the
condemning authority takes possession of the Leased Premises or
the substantial part thereof so taken. There shall be no
apportionment of the award for taking or condemnation, the entire
award going to Lessor, provided, that Lessee shall have the right
to recover any award which may be made for damages to or
condemnation of Lessee's movable trade fixtures, equipment,
furniture and furnishings.
Article 17. Option to Purchase Leased Premises.
If Lessee is not in default hereunder, Lessee shall have the
option at any time during the Term of this Lease to purchase the
Leased Premises and all improvements thereon upon the terms and
conditions contained in this Article and in Article 18 of this
Lease for a purchase price to be determined in accordance with
the following provisions:
(a) The parties acknowledge that Lessor will
obtain permanent financing of the balance of the cost of the
Improvements in an amount not to exceed $1,150,000 plus a
reasonable amount for loan fees, appraisal costs and the like at
an interest rate of 9% with no prepayment penalties. The parties
further acknowledge that all proceeds from rent received
hereunder shall be applied by Lessor to the balance due on the
loan.
(b) The purchase price to be paid by Lessee upon
the exercise of its option as set forth herein shall be equal to
the remaining principal balance plus accrued interest on Lessor's
loan referenced herein at the time of closing on the purchase
option.
(c) In order to keep Lessee apprised of the
balance due on said loan at any given point in time Lessor agrees
to provide a copy of the loan documents and the amortization
schedule to Lessee within a reasonable time after it secures the
loan on the Leased Premises. At any time during the term of this
Lease Lessor shall, upon the request of Lessee, provide Lessee
with verification of payments made on the loan and the current
balance thereof.
The option herein granted shall be exercised by Lessee by
delivering to Lessor not less than 180 days before expiration of
the Term of this Lease written notice of the exercise of this
option. If Lessee fails, for whatever reason to give timely
notice of its exercise of this option, the option right granted
herein shall automatically terminate.
Article 18. Conditions of Purchase Options.
18.01 The option to purchase under Article 17 of this Lease
may not be assigned or transferred by Lessee. Any attempted
assignment or transfer shall be void and unenforceable against
Lessor.
18.02 Upon valid exercise of the purchase option, the terms
of purchase and sale shall include the following conditions and
requirements:
(a) Closing to be held not later than 90 days
after exercise of option;
(b) Conveyance shall be made by general warranty
deed substantially in the form of Exhibit "A" attached hereto and
incorporated herein by reference.
Article 19. Holding Over.
In the event that Lessee shall, with
retain possession of the Leased Premises
the Term of this Lease, this Lease shall
month basis upon all the terms, covenants
specified, except Articles 17 and 18.
Article 20, Ouiet Possession
the consent of Lessor,
after the expiration of
continue on a month -to-
and conditions herein
Lessee shall, and may peacefully have, hold and enjoy the Leased
Premises, subject to the other terms hereof, provided that Lessee
pays the rental herein recited and performed all of Lessee's
covenants and agreements herein contained.
Article 21. Default.
21.01 In the event of default at any time by Lessee in the
payment of the rent herein provided for or in the performance of
any other of its covenants herein contained, Lessor shall have
the right, after thirty (30) days' notice in writing to Lessee
and Lessee's failure within said thirty (30) day period to cure
said default, or if said default does not relate to the payment
of money and cannot by its nature be cured within said thirty (30
day period, to undertake and diligently pursue action to cure
said default, to either:
10
(a) terminate this Lease and re -enter and take
possession of the Leased Premises, and /or
and /or
(b) pursue any remedy whatsoever provided by law;
(c) re -enter and take possession of the Leased
Premises and use its best efforts to relet the same for and on
account of Lessee for the then full remaining portion of the
unexpired Term of this Lease for any shorter period, and to
collect and receive payment of rent therefor, but no such re-
entry or re- letting shall be construed as a termination of this
Lease or as a release of Lessee from Lessee's obligation to pay
rent provided during the full Term of this Lease, or from
Lessee's obligation to perform any other covenant herein
contained. It expressly being understood and agreed that in the
event of any such re -entry or reletting by Lessor such re -entry
or re- letting shall not operate to terminate this Lease in any
other particular or alter the obligation of Lessee to perform its
covenants and to pay rent pursuant to the terms hereof unless
Lessor expressly so elects pursuant to paragraph 21.01(a) above.
Lessor shall in no way be responsible or liable for any failure
to re -let the Leased Premises, or any part thereof, or for any
failure to collect any rent due upon such re- letting. No notice
from Lessor hereunder or under a forcible entry and detainer
statute or similar law constitutes an election by Lessor to
terminate this Lease unless such notice specifically so states.
Lessor reserves the right following any such re -entry and /or re-
letting to exercise its right to terminate this Lease.
21.02 If Lessor does not elect to terminate this Lease but
takes possession as provided for in Article 21.01(c), Lessee
shall pay to Lessor the rent and other charges at the times and
in the manner as herein provided which would be payable if such
repossession had not occurred, less the net proceeds, if any, of
any re- letting of the Leased Premises after deducting all
Lessor's reasonable expenses including, without limitation, all
repossession costs, brokerage commissions, legal expenses,
attorneys fees, alteration and repair costs and expenses of
preparation for such re- letting.
21.03 Lessee shall pay all Lessor's costs, charges and
expenses including costs and fees of legal counsel, agents and
others retained by Lessor, incurred in enforcing Lessee's
obligations hereunder or incurred by Lessor in any litigation,
negotiation or transaction which Lessee causes Lessor without
Lessor's fault to become involved.
21.04 If Lessee violates any of the terms and provisions of
this Lease or defaults in any of its obligations hereunder other
than the payment of rent or other sum payable hereunder, such
11
violation may be restrained or such obligation enforced by
injunction at the instance and request of Lessor and without the
showing of any special damages or other adequate remedy at law.
Article 22. Waiver and Time of Essence.
No waiver of any breaches of any provision, covenant or
condition of this Lease shall be construed to be a waiver of any
preceding or succeeding breach of such provision, covenant or
condition, or of any other provision, covenant or condition; and
time is of the essence for each and every provision, covenant and
condition herein contained and on the part of Lessee to be done
and performed..
Article 23 Assignment by Lessor.
Lessor shall have the right to transfer and assign, in whole
or in part, all its right and obligations hereunder and in the
Leased Premises, and in such event and upon Lessor's transferee
assuming Lessor's obligations hereunder no further liability or
obligation shall thereafter accrue against Lessor hereunder.
Article 24. Subordination to Mortgage.
This Lease shall be and is hereby made subordinate to any
mortgage or deeds of trust which may now or hereafter encumber
the Leased Premises and to all renewals, modifications,
consolidations, replacements and extensions thereof. This clause
shall be self- operative and no further instrument of
subordination need be required by any mortgagee. This clause
shall be for the benefit of any mortgagee. In confirmation of
such subordination, however, Lessee shall, at Lessor's request,
execute promptly any appropriate certificate, subordination
agreement or instrument that Lessor may request. Lessee hereby
constitutes and appoints Lessor the Lessee's attorney -in -fact to
execute any such certificate, subordination agreement or
instrument for and on behalf of Lessee. Notwithstanding the fact
that this Lease is and shall be subordinate as provided above,
Lessee will as a result of the enforcement of the default or
foreclosure provisions of such mortgage or deed of trust,
including conveyance by deed in lieu of foreclosure,
automatically become the Lessee of the person or party succeeding
to the interest of Lessor without change in the terms or other
provisions of this Lease and Lessee agrees to attorn to such
party; provided, however, that such mortgagee or successor in
interest shall not (i) be bound by any amendment or modification
to this Lease made without the written consent of such mortgagee
or such successor in interest; (ii) be liable for any previous
act or omission by Lessor under this Lease; or (iii) be subject
to any offset which shall theretofore have accrued to Lessee
against Lessor. Lessee further agrees, upon demand, to execute
such nondisturbance and attornment agreements as any such
12
mortgagee or successor shall request. The provisions of this
Article shall not alter or otherwise affect the option to
purchase granted by Article 17 of this Lease nor shall the
provisions of this Article operate to increase or otherwise alter
the purchase price to be paid by Lessee upon exercise of the
option in accordance with the provisions of Article 17.
Article 25. Estoppel Certificate.
At Lessor's request Lessee will execute either an estoppel
certificate addressed to Lessor's mortgagee or any prospective
successor of Lessor, or a third party agreement among Lessor,
Lessee and said mortgagee or successor, certifying to such facts
(if true) regarding the status and terms of this Lease as may be
requested, and agreeing to such notice provisions and other
matters as such mortgagee or successor may reasonably require in
connection with Lessor's financing or the conveyance of the
Leased Premises.
Article 26. Notices.
All notices, demands or communications of any kind which may
be required or desired to be served, given or made by Lessee upon
or to Lessor, under the terms of or in connection with this
Lease, shall be sufficiently served, given or made (as an
alternative to personal service upon Lessor) if sent by certified
United States mail, addressed to:
Pueblo Development Foundation
P. 0. Box 1663
Pueblo, Colorado 81002
(or to such other address as may hereafter from time to time be
designated for this purpose by Lessor to Lessee in writing) All
notices, demands or communications of any kind which may be
required or desired to be served, given or made by Lessor upon or
to Lessee, under the terms of or in connection with this Lease,
shall be sufficiently served, given or made if such notice,
demand or communication is sent by certified United States Mail,
addressed to:
Jones Tones, Inc.
68743 Perez Road, D -16
Cathedral City, California 92234
(or to such other address as may hereafter from time to time be
designated for this purpose by Lessee to Lessor in writing.
Article 27. Environmental Provisions.
27.01 For the purpose of this Lease, "Hazardous Materials"
means any hazardous or toxic substance, material or waste which
13
is or become regulated by any local government authority, the
State of Colorado or the United States government and shall
include, but not be limited to (1) substances defined as
"hazardous waste," "restricted hazardous waste," "hazardous
substance" or "hazardous material" under any applicable federal,
state or local law or regulation ( "Environmental Regulations "),
(2) asbestos - containing materials, (3) PCBs, (4) petroleum or
petroleum based products, and (5) lead.
27.02 Lessor represents and warrants that it has not
conducted any investigation with respect to Hazardous Materials
on, under or about the Leased Premises but that to the best of
its knowledge there are no septic tanks, no above or below ground
fuel oil tanks, gasoline or chemical storage tanks, and no other
underground tanks or piping or deposits of hazardous Materials as
now defined and regulated located on, under or about any portion
of the Leased premises; that no portion of the Leased Premises is
as of the date of execution of this Lease subject to any lawsuit,
proceeding, citation, or investigation pending or overtly
threatened relating to any contamination or alleged contamination
by any Hazardous Materials or any violation or alleged violation
of any Environmental Regulation; that no material expenditure of
funds is required of Lessor to bring any portion of the Leased
Premises into compliance with any Environmental Regulations; and,
finally, that all disclosures have been made to the Company
regarding existing environmental conditions known by or to
Lessor.
27.03 The Lessee will comply with Environmental Regulations
that are applicable to the Company and its use of the Leased
Premises. No activity shall be undertaken by the Lessee, its
employees, agents, licensees, invitees, contractors or
subcontractors, on all or any portion of the Leased Premises
which would cause or permit: (i) the presence, use, generation,
release, discharge, storage, or disposal of any Hazardous
Material in, on, under, about, or from the Leased Premises or any
part thereof in violation of any Environmental Regulations; (ii)
any portion of the Leased Premises to become a hazardous waste
treatment storage or disposal facility without receiving proper
governmental authorization and in compliance with all
environmental regulations; or (iii) the discharge of pollutants
or effluents into any water source or system, or the discharge
into the air of any emissions without receiving proper
governmental authorization, and in compliance with all
environmental regulations, including, without limitation, the
Federal Water Pollution Control Act, U.S.C. Section 1251 et sea
and the Clean Air Act, 42 U.S.C. Section 7401 et sea.
Lessee agrees to indemnify and forever hold harmless Lessor,
its agents, successors and assigns and Lessor's mortgagee, as
their interest may appear, from all claims, losses, damages,
expenses and costs, including, but not limited to attorney's
14
fees, remedial and cleanup costs, incurred by reason of the use,
storage, generation, release, discharge, maintenance, disposal,
or removal of Hazardous Materials in, on, under, about, or from
the Leased Premises or any part thereof, by Lessee, its
employees, agents, licensees, invitees, contractors and
subcontractors. The provisions of this Article 27.03 shall
expressly survive the expiration of the Term or other termination
of this Lease.
Article 28. Miscellaneous Provisions.
28.01 Colorado Law. This Lease shall be governed by the
laws of the State of Colorado and shall be construed in
accordance therewith.
28.02 Writing for Waiver or Modification. No provision of
this Lease may be waived or modified except by an agreement in
writing signed by the waiving party. A waiver of any term or
provision shall not be construed as a waiver of any other term or
provision.
28.03 Binding Effect. This Lease sets forth the entire and
complete understanding and agreement of the parties hereto.
Lessee acknowledges and agrees that it has not relied upon any
statements, representations, agreements or warranties except such
as are expressed herein. This Lease shall be binding on the
parties, their successors and approved assigns. The parties
agree to do any and all things lawful and necessary to effectuate
the purpose of this Lease.
28.04 Construction. Throughout this Lease, 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.
28.05 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 Lease exists, the text
shall control.
28.06 Severability. If any provision of this Lease is
declared by any court of competent jurisdiction to be invalid for
any reason, such invalidity shall not affect the remaining
provisions On the contrary, such remaining provisions shall be
fully severable, and this Lease shall be construed and enforced
as if such invalid provisions had never been inserted in the
Lease.
28.07 Venue and Jury Trial. Lessor and Lessee agree that
the venue for all actions or causes of action relating to this
Lease or the Leased Premises shall be in Pueblo County, Colorado.
All such actions shall be filed in the District Court, County of
15
Pueblo, State of Colorado, and Lessor and Lessee submit to the
jurisdiction of that Court. Each party waives its right to a
jury trial.
IN WITNESS WHEREOF, Lessor and Lessee, by their duly
authorized representatives, have executed this Lease on the day
and year first above written.
PUEBLO DEVELOPMENT FOUNDATION
by
Title:
JONES TONES, INC.
FMAM4,��. E.,
Jt�
presiden
16
AGREEMENT
THIS AGREEMENT entered into as of the 28th day of August, 1995 between Pueblo, a
Municipal Corporation (herein "City ") and Pueblo Development Foundation, 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 manufacturing purposes by American Standard Inc.; and
WHEREAS, the property to be development 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 Jones Tones, Inc. (herein "Company ") have or will enter into an
agreement for the lease and option to purchase approximately 10.0 acres of land at Pueblo Memorial
Airport (herein "Company's Lease ") which land is described in the Warranty Deed attached hereto
(herein "Warranty Deed ").
2. Company and Foundation have or will agree that an approximately 50,000 square
foot facility and appurtenant improvements (the "Project ") will be constructed on the land described
in Exhibit A to the Warranty Deed. City will advance funds not to exceed $1,150,000 ( "City
Funds ") to Foundation for the construction of the Project pursuant to the terms and provisions of
this Agreement. Foundation shall repay to City all City Funds advanced by the City for the
construction of the Project no later than February 1, 1996.
3. Upon delivery to City of an executed copy of Company's Lease, City will execute
and deliver to Foundation the Warranty Deed. Foundation shall not use, lease, encumber, assign,
or otherwise transfer title to the property described in the Warranty Deed or its interest therein
except in furtherance of and in compliance with the terms and provisions of Company's Lease.
Contemporaneously with the delivery of the Warranty Deed to Foundation, Foundation will execute
and delivery to City a promissory note in the amount of City Funds to be advanced and deed of trust
in form and content approved by the City Attorney. The deed of trust shall be a first and prior lien
on the property described in the Warranty Deed.
4. After delivery of an executed copy of Company's Lease, City Funds for the
construction of the Project shall be released by the City's Director of Finance upon receipt from
Foundation of requests for payment certified by the President of Foundation, the Project's architect
and contractor that the amounts requested for payment are for labor and materials actually used and
consumed in the construction of the Project and have not been included in any prior request for
payment.
5. This Agreement shall be binding upon and inure to the benefit of the parties and their
respective successors and assigns, provided Foundation may not assign this Agreement without the
prior written consent of City.
Executed at Pueblo, Colorado the day and year first above written.
PUEBLO, A MUNICIPAL CORPORATION PUEBLO DEVELOPMENT FOUNDATION
By By i
President of the City Council ' President
[SEAL] [SEAL] 7 //
ATTEST: ATTEST: /���� �P�•
City Cle Secretary
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`Reception #: 1095039 Date: 09/28/1995 Time: 1206 Book: 2834 Page: 332 Chris C. Munoz
t Inst: WD R Fee: 30.00 D Fee: 0.00 SC: 1.00 Pg: 1 of 6 Pueblo Co.Clk. &Rec.
WARRANTY DEE
THIS DEED, made this �29 day of Au g a s i' , 199j by and between Pueblo, a
municipal corporation, (herein "City") and Pueblo Development Corporation, a Colorado nonprofit
corporation (herein "Company "), WITNESSETH:
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 Exhibit "A" attached hereto and incorporated herein (herein "Property),
with all its appurtenances, and warrant the title to the same, subject to easements, rights of way,
restrictions and reservations of record 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 Pueblo, a Municipal
Corporation (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 navigation 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.
Reception #: 1111485 Date: 02/26/1996 Tine: 1112 Book: 2869 Page: 320 Chris C. Munoz
Inst: WD R Fee: 30.00 D Fee: 0.00 SC: 1.00 Pg: 1 of 6 Pueblo Co.Clk. &Rec.
Book: 2834 Page: 333 Chris C. Munoz
Page: 2 of 6 Pueblo CO.Clk. &Rec.
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 4,700 feet above the mean sea level. In the event this covenant is breached, City reserves
the right to enter upon the Property at the expense of the Company to remove the offending structure
or object and to cut the offending growth.
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.
4. The Property and its use are further subject to the following Restrictive Covenants:
(a) The Property may be used only for industrial and manufacturing facilities
and incidental office uses. The Property shall not be used for smelting or plating operations, or for
the storage or processing of putrescible materials, 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 an environmentally sound manner.
(b) Outdoor storage shall not be permitted except for storage of equipment used
in 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 sixty
(60) feet in height shall be installed or constructed on the Property.
(d) No structure or building shall be constructed or installed nearer than sixty -five
(65) feet of the right of way line of United Avenue or thirty -five (35) feet of the right of way line
of any other abutting streets. There must be installed and maintained a minimum thirty -five (35)
foot strip of living landscaped ground along and adjacent to United Avenue and twenty -five (25)
feet adjacent to other abutting streets. Minimum side yards set -backs shall be twenty -five (25) feet.
(e) Company shall 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, and enclose and screen from public view all outside storage and unsightly
areas of the Property.
(f) Company shall comply with notifications and review requirements of the
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f
Book: 2834 Page: 334 Chris C. Munoz
Page: 3 of 6 Pueblo Co.Clk. &Rec.
Federal Aviation Administration prior to the construction, modification or alteration of any building
or structure on the Property.
(g) Company shall, at its own expense, cause all utilities and roads used or to be
used on the Property to be extended from adjacent streets, installed on the Property, and kept and
maintained in good order and condition.
(h) Company shall pay to City a combined service fee for services and facilities
now furnished by City at the Pueblo Memorial Airport, namely: public street maintenance, fire
protection, and street lighting based upon $295.00 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. Domestic waste water
discharged from the Property is transported to and treated at City's waste water treatment facilities,
Company and the waste water so transported and treated are subject to the same restrictions,
limitations, conditions, fees, and charges as other users of City's sanitary sewer system and facilities.
Company shall only discharge domestic waste water into the City's sanitary sewer system.
(i) Company shall provide for storm water drainage which shall include the
construction and installation of storm water detention facilities on the Property. The detention
facility shall be capable of storing the developed on -site runoff from a 100 -year frequency storm.
The maximum release rate from the detention facility at the ponding depth corresponding to the 10-
year volume shall be .30 cfs /acre and 1.00 cfs /acre for the 100 -year ponding depth. All calculations
and details shall conform with the City of Pueblo Storm Drainage Criteria Manual. The point of
discharge from the detention facility shall be at a location approved by the Director of Public Works.
0) 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 Company 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.
Company shall use its best efforts to assure that all buildings constructed on the Property will be
architecturally and aesthetically compatible with buildings constructed at the Pueblo Memorial
Airport industrial park since 1985. 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.
-3-
Book: 2869 Page: 322 Chris C. Munoz
Page: 3 of 6 Pueblo Co.Clk. &Rec.
Book: 2834 Page: 335 Chris C. Munoz
Page: 4 of 6 Pueblo Co.Clk. &Rec.
(k) 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 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 not 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.
[SEAL]
ATTEST:
ect6tary
` E A LI
ATTFS
City Cler
COUNTY OF PUEBLO )
) ss.
STATE OF COLORADO )
PUEBLO DEVELOPMENT FOUNDATION
By
President
PUEBL , A MUNICIPAL CORPORATION
B
esident of the City Council
The foregoing instrument was acknowledged before me this day of e79- ,
19 1 TI - 1 by - - - Yu -,op)A � � rotM X00 as President and 0 t" 21 s 1'2. I t'e�D21 c cam. as Secretary
of Pueblo Development Foundation, a Colorado nonprofit corporation.
Witness my hand and official seal.
-4-
Book: 2869 Page: 323 Chris C. Munoz
Page: 4 of 6 Pueblo Co.Clk. &Rec.
Book: 2834 Page: 336 Chris C. Munoz
Page: 5 of 6 Pueblo CO.Clk. &Rec.
`my commission expires: I q, acr x
e tary Public
" ii it .
COUNTY OF PUEBLO )
ss.
STATE OF COLORADO )
The foregoing instrument was acknowledged before me this T /fh da of J,
19 by as President of the City Council and
as City Clerk of Pueblo, a Municipal Corporation.
Witness my hand and official seal.
My commission expires: 3-7 -qU
[SEAL]
•'a
s
Notqy Public
Book: 2869 Page: 324 Chris C. Munoz
Page: 5 of 6 Pueblo Co- Clk - &Rec.
-5-
.� Book: 2834 Page: 337 Chris C. Munoz
Page: 6 of 6 Pueblo Co.C1k.&Rec.
EXHIBIT " A "
Lot 74, Pueblo Memorial Airport Industrial Park Subdivision,
County of Pueblo, State of Colorado
Book: 2869 Page: 325 Chris C. Munoz
Page: 6 of 6 Pueblo Co.C1k.&Rec.
z
REVISED INSTRUCTIONS ON BACK UCC -1
UNIFORM COMMERCIAL CODE
FINANCING STATEMENT
1ST DEBTOR
CHECK IF APPLICABLE
SSN /FED Tax ID 330391 867 Check One: ® Business
❑ This statement is to be recorded in the
❑ Personal
real estate records ONLY
Name (Last, tat) JONES TON, INC
❑ This statement is to be filed in real
Street 33865 UNITED AVE
estate AND UCC records.
City, State, Zip PUEBLO CO 81 001
❑ The debtor is a transmitting utility.
For Office Use Only
Y
COLORADO SECRETARY OF STATE - UCC1
r�
1560 BROADWAY STE 200
................ .............. kold. Hece...................................................................................
....................................................................
N D DEBTOR ❑Additional debtors) on attachment
PLEASE CHECK APPROPRIATE BOX.
THIS STATEMENT IS SIGNED BY THE
SSN /FED Tax ID . Check One: ❑ Business
SECURED PARTY INSTEAD OF THE
❑ Personal
DEBTOR TO PERFECT A SECURITY
Name (last, ist)
INTEREST IN COLLATERAL
Street
❑ Already subject to a security interest
City, State, Zip
in another jurisdiction when it was
brought into this state, or when the
debtor's location was changed to this
1ST SECURED ❑ Additional secured party on attachment
state;
PARTY
❑ Which is proceeds of the original col -
lateral described below in which a
security interest was perfected
❑ As to which the filing has lapsed; or
Name (Last, ist) PUEBLO, A MUNICIPAL CORPORATION
❑ Acquired after a change of name,
Street 1
CITY HALL PLACE
identity or corporate structure of the
City, State, Zip
PUEBLO CO. 81003
debtor.
COLLAtE'1FtAL'' * LASSfF1CATTON:
.......... �g1d.1i�...........
.. .
ASSIGNED PARTY ❑ Additional assigned party on attachment
(Supply full description)
❑ Accounts, Accounts Receivable
Name (Last, ist)
❑ Fixtures
Street . .
❑ Proceeds
City, State, Zip
Equipment, Machinery
(collateral Description)
Livestock, Farm Animals, Etc.
❑ Contract Rights
,..
❑ Inventory
❑ Products
❑ Truck, Car, Vehicle
❑ Other
Al
DeftM ignatilriqsy'
wed Party Signature(s)
c+ TONES
M ss) "°
. Printed Names)
,i
Title - �
Title
No. 602. Rev. 8 -93. FINANCING STATEMENT (UCC -1) Bradford Publishing, 1743 Wazee St., Denver, CO 80202 — (303) 292 -2500 — 10-93
Raso & Suttedin, P.C. ATTORNEYS AT LAW
Gar J. R aso • Jon C. Sutterlin Of C ounsel: Fdc Damian Kelly
200 East Abriendo Avenue • Pueblo, Colorado 81004 • Phone (719) 543 -1700 • Fax,,(
December 6, 1995
Gina Dutcher
City Clerk
City of Pueblo
1 City Hall Place
Pueblo, Cc 81003
23
LEC 6 19 95)
RE: Submittal of Information Required by that
Certain Agreement dated August 28, 1995, by and
Between Pueblo, a Municipal Corporation, and
Jones Tones, Inc., a California Corporation
Dear Ms. Dutcher:
We serve as legal counsel to Jones Tones, Inc., and on its
behalf, pursuant to Section 3(a) of the Agreement referenced
above, we hereby submit copies of the following information:
1. Copy of Lease Agreement by and between the Pueblo
Development Foundation and Jones Tones, Inc., dated
September 21, 1995;
2. Jones Tones, Inc., Application for Authority to
Transact Business in the State of Colorado. Please note that
attached to the application is a Certificate of Good
Standing issued by the Secretary of State of the State of
California. This application was filed with the Secretary
of State for the State of Colorado on November 29, 1995. We
expect to receive the authorization from the Secretary of
the State any day now and will forward that for inclusion
with this submittal at that time.
3. A certified copy of a resolution by the Board of
Directors of Jones Tones, Inc., approving the Agreement with
the City of Pueblo and authorizing its officers to execute
and deliver the same in the name of the Company.
4. Evidence that the Company is diligently proceeding to
locate its business on the property. This evidence consists
of a copy of a notice sent to all Jones Tones suppliers
informing them of their new corporate address in Pueblo,
Colorado. Additionally, we would submit that Jones Tones
has, of the date of this letter moved into the leased
premises at 33865 United Avenue in Pueblo, Colorado. Should
further evidence be required, please do not hesitate to let
us know and we will submit the same.
Please let us know if you have any questions or concerns. Thank
you for your consideration.
Sincerely,
/5-D(t�7
Gar J Ra o
pc Thomas Jagger
°lease include a typed
,elf- addressed envelope
MUST BE TYPED
FILING FEE: $75.00
MUST SUBMIT TWO COPIES
Mail to: Secretary of State
Corporations Section
1560 Broadway, Suite 200
Denver, CO 80202
(303) 894 -2251
Fax (303) 894 -2242
APPLICATION FOR AUTHORITY
Pursuant to the provisions of the Colorado Business Corporation Act, the undersigned corporation hereby applies for
Authority to transact business in Colorado, and for that purpose submits the following statement:
FIRST: The name of the corporation is JONES TONES INC
(Exact Corporation name must agree with the attached Certificate of Good Standing)
SECOND: The name which it elects to use in Colorado is
JONES TONES INC
(If its corporate name is not available for use in Colorado.)
THIRD: It is incorporated under the laws of CALIFORNIA
FOURTH: The date of its incorporation is MARCH 30, 19 8 9 The period of duration is PERPETUAL
FIFTH: The street address of its principal office 68743 Perez, #D-16, Cathedral City
California 92234
SIXTH: The street address of its proposed registered office in Colorado is
200 E. Abriendo, Pueblo, Colorado 81004
and the name of its proposed registered agent in
Colorado at that address is rarU T Ratan
Signature of Registered Agent (may be in accompanying document)
Date Business commenced or expects to commence transacting business in this state T7PnPmhPr 1 5 ., 1 995
SEVENTH: The names and respective addresses of its directors and officers are:
y
y
List additional Officers or Directors on a separate piece of paper.
EIGHTH: This application MUST BE ACCOMPANIED BY A CERTIFICATE OF GOOD STANDING ISSUED BY THE
JURISDICTION OF ITS INCORPORATION AND DATED WITHIN NINETY (90) DAYS OF THE FILING OF THE APPLICATION.
By
Director G» s a n Tnn P R
Director
Director
/
sft�e
Q�i�1UIll�� II riL�i
SECRETARY OF STATE
CERTIFICATE OF STATUS
DOMESTIC CORPORATION
1, BILL JONES, Secretary of State of the State of California, hereby certify:
That on the 30th d ay of March , 19
JONES TONES
became incorporated under the laws of the State of California by.iling its Articles of In-
corporation in this office; and
That no record exists in this office of a certificate of dissolution of said corporation
nor of a court order declaring dissolution thereof, nor of a merger or consolidation which
terminated its existence; and
That said corporation's corporate powers, rights and privileges are not suspended on
the records of this office; and
That according to the records of this office, the said corporation is authorized to exer-
cise all its corporate powers, rights and privileges and is in good legal standing in the
State of California; and
That no information is available in this office on the financial condition, business
activity or practices of this corporation.
IN WITA'ESS WHEREOF, I execute this
c�'ili�ute and affix the Greut .Seal
01c SMIC o /'C•ulifi)?'niu thIS
j , s�
E31L; JO�IS
94 25216
SECISTATE FORM CE•112 (REV. 1.95)
CERTIFICATE
The undersigned, as duly elected and acting secretary of Jones
Tones, Inc., hereby certifies that the attached co of a
'Wi resolution adopted by the board of directors on , 1995,
at a duly held meeting at which a quorum was present, is a full,
true and accurate copy and that the resolution has not been
modified or rescinded at the date of this certificate.
�l
Secreta y, nes Tone c.
RESOLUTION OF THE BOARD OF DIRECTORS OF
JONES TONES, INC.
WHEREAS, at a meeting of the board of directors of Jones Tones,
Inc., duly held on 11-2 il , 1995, at its principal executive
office at 68743 Perez, Cathedral City, California, the board of
directors elected by resolution to enter into an Agreement with
the City of Pueblo, Colorado. Such Agreement, dated August 28,
1995, is the culmination of negotiations between the Corporation
and the City. The Corporation desires to locate its business in
Pueblo, Colorado and in furtherance thereof has made application
for funds with the City; The City has approved such application
and will make funds available to the Corporation upon the terms
and conditions set forth in said Agreement.
RESOLVED, that the Agreement between the City of Pueblo and the
Corporation dated August 28, 1995, is hereby approved;
FURTHER RESOLVED, that the officers of the Corporation are
authorized and directed to execute said Agreement on behalf of
the Corporation and to take such further action as may be
necessary or proper to complete the Corporation's obligations
under the Agreement.
Color Fix @ - Glitters - Color & Fashion Transfers - Feather Fringe@ - Foil
Perfect Fit Vest@ - Image Shirts@ - Faux Stones - Sequins & Trim - Shirt Boards - Video Tapes & Books
JONES TONES is "COLORADO BOUND"
JONES TONES INC. IS MOVING ITS' MANUFACTUING AND DISTRIBUTION
OPERATIONS TO PUEBLO, COLORADO IN NOVEMBER/95. THIS MOVE TO A NEW MUCH
LARGER FACILITY WILL ALLOW FOR A MORE STREAMLINED MANUFACURING
OPERATION, AS WELL AS A MORE CENTRAL NATIONAL DISTRIBUTION CENTER.
FOR SHIPMENTS SCHEDULED TO ARRIVE ON OR SHORTLY BEFORE NOV. 30/95,
PLEASE CALL FOR EXACT SHIP TO LOCATION. THANK -YOU FOR YOUR
UNDERSTANDING AND CO-OPERATION!
AFTER DECEMBER 15,1995; OUR NEW CORPORATE ADDRESS WILL BE:
33865 UNITED AVE
PUEBLO, CO. 81001
(800) 397 -9667
68 -743 Perez Road, D -16, Cathedral City, CA 92234
PHONES: (619) 321 -9665 FAX (619) 321 -6795
TO ORDER: (800) 397 -9667 FAX (619) 770 -9042
&ecorded at o'clock M-
I
Reception No.
REQUEST FOR RELEASE OF DEED OF TRUST AND RELEASE
February 14, 1996 Date
PUEBLO DEVELOPMENT FOUNDATION, a
1 nradn Nonnrnfi t C arnnrati nn Original Grantor
(Borrower)
Pueblo, a Municipal Corporation Original Beneficiary
(Lender)
August 28, 19 9 5 Date of Deed of Trust
September 28 , 1995 Recording Date of
Deed of Trust
Pueblo County of Recording
10950 4 0 Reception and /or Film Nos. of Recorded Deed of Trust
Reception No. Film No.
2834 3 3 8 Book and Page of Deed of Trust
Book No. Page No.
TO THE PUBLIC TRUSTEE OF
Pueblo County (The Public Trustee to which the above Deed of Trust conveys the said property.)
Please execute this release, as the indebtedness has been fully paid and /or the terms and conditions of the trust have
been fully satisfied.
Pueblo, a Mun i ct i na l C'nrr�nra t j o
Current Owner and Holder of the Evidence of De t Secured by Dee of Trust (Lender)
Billv G. Marti
Signature
State of Colorado, County of
Pueblo
The foregoing request for release was acknowledged before me on
Feb . 14, 1996 (date) by*
as Dir pctnr nf Finan
Date Commission Expires
)i.recror or financ
Agent or of urrem Owner and Holder
Signature
Witness My Hand and Seal
Notary Public
RELEASE OF DEED OF TRUST
KNOW ALL MEN, that the above referenced Grantor(A by Deed of Trust, conveyed certain real property described
in said Deed of Trust, to the Public Trustee of the County referenced above, in the State of Colorado, to be held in trust to
secure the payment of the indebtedness referred to therein.
NOW THEREFORE, at the written request of the legal holder of the said indebtedness, and in consideration of the
premises and the payment of the statutory sum, receipt of which is hereby acknowledged, I, as the Public Trustee in the
County first referenced above, do hereby remise, release and quitclaim unto the present owner or owners of said real
property, and unto the heirs, successors and assigns of such owner or owners forever, all the right, title and interest which
I have under and by virtue of the aforesaid Deed of Trust in the real estate described therein, and more particularly
described as follows:
Lot 74, Pueblo Memorial Airport
Industrial Park Subdivision,
County of Pueblo, State of Colorado
TO HAVE AND TO HOLD THE SAME, with all the privileges and appurtenances thereunto belonging forever; and
further I do hereby fully and absolutely release, cancel and forever discharge said Deed of Trust.
Public Trustee
State of Colorado, County of
Pueblo
The foregoing instrument was acknowledged before me on
(date) by
Nicho Grad.isar_____ __ - m the
By
Deputy Public Trustee
Witness My Hand and Seal
,Reception #: 1095040
InsL TD R Fee:
Date: 09/28/1995 Time: 1208 Book: 2834 Page: 338 Chris C. Munoz
5.00 D Fee: 0.00 SC: 1,00 Pg: 1 of 1 Pueblo Co.Clk, &Rec.
THIS DEED OF TRUST, Made this 28th day of August 19 9 5 , between
PUEBLO DEVELOPMENT FOUNDATION, a Colorado Nonprofit Corporation
the grantor herein whose address is P . 0. BOX 1663, Pueblo, CO 81003
County of Pueblo and State of Colorado,
and the PUBLIC TRUSTEE of the County or City and County in which the property described below is situated, in the
State of Colorado,
Witnesseth: The Grantor to secure its promissory noteCS) bearing even date herewith, i,� the Io� pr n idal O
sumo( One million one hundred fifty thousand and no /100 ' 1 '��ars,
payable to the order of Pueblo, a Municipal Corporation
the beneficiary herein whose address is 1 City Hall Place, Pueblo, CO
, after the date thereof,
with interest thereon from the date thereof at the rate of — 0 — percent per annum, principal and interest payable
in full on demand but in no event later than February 1, 1996
does hereby grant and convey unto said Public Trustee the following described property, situate in the
County of Pueblo , State of Colorado, to wit:
Lot 74, Pueblo Memorial Airport
Industrial Park Subdivision
County of Pueblo, State of Colorado
also known as street and number United Avenue, Pueblo, Colorado
TO HAVE AND TO HOLD the same together withal] appurtenances, in trust nevertheless, that in case of d r efault in the payment of said note o any part thereof
or interest thereon, or in the performance of any covenants hereinafter set forth, then upon the beret iciary (note holder) filing notice of election and demand for
sale, said Public Trustee, after advertising notice of said sale weekly, for not less than four weeks, in some newspaperof general circulation in said county, shall
sell said property in the manner provided by law in effect at the time of filing said notice and demand, at public auction for cash, at any proper place designated in
the notice of sale. Out of the proceeds of said sale said Trustee shall retain or pay first all fees, charges and costs and all moneys advanced for taxes, insurance
and assessments, or on any prior with interest thereon, and pay the principal and interest due on said note, rendering the overplus (if any) unto
the grantor; and after the expiration of the time of redemption, said Trustee shall execute and deliver to the purchaser a deed to the property sold. The
beneficiary may purchase said property orally part thereof at such sale.
The grantor covenants that at the time of delivery of these presents, he is seized of said property in fee simple, and that said property is
free ofencumbrances, except none
and that he will keep all buildings insured for fire and extended coverage in amount equal to the unpaid balance of said note with loss payable to the beneficiary, I l i
and will pay all taxes and assessments against said property and amounts due on prior encumbrances, and if he shall fail to pay insurance premiums, taxes or
amounts due on prior encumbrance, the beneficiary may pay the same and a I iounts so aid sha I become additional indebtedness due hereunder; and in case
of foreclosure, he will pay an attorney's feeYC i n a reasonae am'oun� .
Should the beneficiary hereunder be made a party to any action affecting this deed of trust or the title to said property, the grantor agrees that all
court costs and a reasonable attorney's fee paid by the beneficiary shall become additional indebtedness due hereunder; and the grantor does hereby
release and waive all claims in said property as a homestead exemption or other exemption now or hereafter provided by law.
It is agreed that in case of default in payment of said principal or interest or a breach of any of the covenants herein, then said principal sum herebyy
secured and interest thereon may at the option of the beneficiary become due and payable at once, anything in said note to the contrary notwithstand-
in and possession of said property will thereupon be delivered to the beneficiary, and on failure to deliver such possession the beneficiary shall be
ent fled to a receiver for said property, who may be appointed by any court of competent jurisdiction.
Whenever used herein the singular number shall include the plural, the plural the singular, and the use of any gender shall be applicable to all
genders. All of the covenants herein shall be binding upon the respective heirs, personal representatives, successors and assigns of the parties hereto.
Should any provision of this Deed of Trust be found to violate the statutes or court decisions of the State of Colorado, or of the United States, such
provision shall be deemed to be amended to comply with and conform to such statutes and decisions.
Executed t ay an ye rat pore written. PUEBLO DEVELOPMENT- _QUNDATION
:[SEAL•]
ATTEST:, _. re dent
.
r , - 'TATEOFCOLORADO,
Canntyaf Pueblo
a -- i a
•'•I Q `• The foregoing instrument was acknowledged before me this �� day of
n C� - r— - — rL, T T1--4- 4 n- -, r 11 — , a — 1- - - ,
PROMISSORY NOTE
$1,150,000.00
August 28, 1995
FOR VALUE RECEIVED, the undersigned, Pueblo Development Foundation, a Colorado
Nonprofit Corporation (the "maker "), promises to pay to the order of Pueblo, a Municipal
Corporation (the "payee "), at payee's office in Pueblo, Colorado, or at the place of business of any
subsequent holder hereof, or at such other place as the holder may designate in writing, the principal
sum of $1,150,000.00 without interest.
This note is payable in full upon demand but in no event later than February 1, 1996.
Upon failure to make payment of principal as herein provided, or upon default in the
performance of any provisions of the deed of trust securing this note, the entire principal sum shall,
at the election of the holder hereof, at once become due and payable without notice, and shall
thereafter bear interest at the rate of twelve percent (12 %) per annum until fully paid. Failure of
the holder to exercise this election shall not constitute a wavier of the right to exercise the same in
the event of any subsequent default.
This note and all principal and interest payable hereunder are secured by a deed of trust of
even date herewith upon real estate situated in the County of Pueblo, State of Colorado.
In the event it becomes necessary to place this note in the hands of an attorney for collection
or to foreclose the deed of trust securing this note by proceedings in court or with the Public
Trustee, the maker hereof agrees to pay attorney's fees in a reasonable amount.
The maker and all endorsers hereof severally waive presentment, protest, and demand, notice
of protest, demand and of dishonor and nonpayment of this note, and expressly agree that this note
or any payment hereunder may be extended from time to time by the holder hereof without in any
way affecting the liability of the makers and endorsers hereof.
Executed at Pueblo, Colorado the day and year first above written.
fSEALj
Attest: ,1 , ! e
Secretary
PUEBLO DEVELOPMENT FOUNDATION
<-� resid nt
VEEN
OFFICE OF THE CITY ATTORNEY
127 Thatcher Building
PUEBLO, COLORADO 81003
TO: Gina Dutcher, City Clerk
FROM: City Attorney
RE: Jones Tones, Inc.
DATE: February 12, 1996
The following documents should be filed with Resolution No. 7694 approving the agreement
between Jones Tones, Inc. and the City:
(a) Executed Agreement dated August 28, 1995
(b) Uniform Commercial Code - Security Agreement executed by Jones Tones, Inc.
(d) Uniform Commercial Code Financing Statement filed in the office of the
Secretary of State on December 8, 1995 as instrument No. 952090221.
Thomas E. Fagg
sin
enc.
STATE OF COLORADO
UNIFORM COMMERCIAL CODE — SECURITY AGREEMENT
Debtor: JONES TONES INC.
Name:
Addteta:
Residence:
No. Street City state
33865 UNITED AVE PUEBLO CO
Rrdrresr:
No. street City state
Secured Party:
Nmw: PUEBLO, A MUNICIPAL CORPORATION
Addrw&- 1 CITY HALL PLACE PUEBLO CO
No. street Cit state
Debtor, for consideration, hereby grants to Secured Party a security interest in the following property and any and all additions, accessions and
substitutions thereto or therefor (hereinafter called the "COLLATERAL "):
All equipment, including but not limited to, the equipment
described in the attached Exhibit "A ".
To secure payment of the indebtedness evidenced by c"KKWA s66YkcYeXXye WWa *"Qfi)jKy'"Ik � &6M m�
2b ;wtiff*xx that certain Agreement between Debtor and Secured party
dated August 28, 1995, and that certain Lease between Debtor and
Secured Party dated September 21, 1995.
DEBTOR EXPRESSLY WARRANTS AND COVENANTS:
1. That except for the security interest granted hereby Debtor is, or to the extent that this agreement states that the
Collateral is to be acquired after the date hereof, will be, the owner of the Collateral free from any adverse lien, security interest or
encumbrances; and that Debtor will defend the Collateral against all claims and demands of all persons at anytime claiming the
same or any interest therein.
2. The Collateral is used or bought primarily for:
❑ Personal, family or household purposes:
❑ Use in farming operations;
l Use in business.
3. That Debtor's residence is as stated above, and the Collateral will be kept at
33 865 United Avenue Pueblo CO
No. and Sum City County State
4. If any of the Collateral is crops, oil, gas, or minerals to be extracted or timber to be cut, or goods which are or are to
become fixtures, said Collateral concerns the following described real estate situate in the County
Of and State of Colorado, to wit:
No. UCC 1205 Rev. 3-87 SECURITY AGREEMENT a
Bradford Publishing, 1743 Wazee St., Denver, CO 80202 — (303) 292 -2500 — 5 -93 Copyright 1987
5. Promptly to notify Secured Party of any change in the location of the Collateral.
6. To pay all taxes and assessments of every nature which may be levied or assessed against the Collateral.
7. Not to permit or allow any adverse lien, security interest or encumbrance whatsoever upon the Collateral and not to
permit the same to be attached or replevined.
8. That the Collateral is in good condition, and that he will, at his own expense, keep the same in good condition and
from time to time, forthwith, replace and repair all such parts of the Collateral as may be broken, worn out, or damaged without
allowing any lien to be created upon the Collateral on account of such replacement or repairs, and that the Secured Party may
examine and inspect the Collateral at any time, wherever located.
9. That he will not use the Collateral in violation of any applicable statutes, regulations or ordinances.
10. The Debtor will keep the Collateral at all times insured against risks of loss or damage by fire (including so-
called extended coverage), theft and such other casualties as the Secured Party may reasonably require, including collision
in the case of any motor vehicle, all in such amounts, under such forms of policies, upon such terms, for such periods, and
written by such companies or underwriters as the Secured Party may approve, losses in all cases to be payable to the
Secured Party and the Debtor as their interest may appear. All policies of insurance shall provide for at least ten days' prior
written notice of cancellation to the Secured Party; and the Debtor shall furnish the Secured Party with certificates of such
insurance or other evidence satisfactory to the Secured Party as to compliance with the provisions of this paragraph. The
Secured Party may act as attorney for the Debtor in making, adjusting and settling claims under or cancelling such
insurance and endorsing the Debtor's name on any drafts drawn by insurers of the Collateral.
UNTIL DEFAULT Debtor may have possession of the Collateral and use it in any lawful manner, and upon default
Secured Party shall have the immediate right to the possession of the Collateral.
DEBTOR SHALL BE IN DEFAULT under this agreement upon the happening of any of the following events or
conditions:
(a) default in the payment or performance of any obligation, covenant or liability contained or referred to herein or in any
note evidencing the same;
(b) the making or furnishing of any warranty, representation or statement to Secured Party by or on behalf of Debtor
which proves to have been false in any material respect when made or furnished;
(c) loss, theft, damage, destruction, sale or encumbrance to or of any of the Collateral, or the making of any levy seizure
or attachment thereof or thereon;
(d) death, dissolution, termination or existence, insolvency, business failure, appointment of a receiver of any part of the
property of, assignment for the benefit of creditors by, or the commencement of any proceeding under any bankruptcy or
insolvency laws of, by or against Debtor or any guarantor or surety for Debtor.
UPON SUCH DEFAULT and at any time thereafter, or if it deems itself insecure, Secured Party may declare all
Obligations secured hereby immediately due and payable and shall have the remedies of a secured party under Article 9 of the
Colorado Uniform Commercial Code. Secured Party may require Debtor to assemble the Collateral and deliver or make it
available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Expenses of
retaking, holding, preparing for sale, selling or the like shall include Secured Party's reasonable attorney's fees and legal
expenses.
No waiver by Secured Party of any default shall operate as a waiver of any other default or of the same default on a future
occasion. The taking of this security agreement shall not waive or impair any other security said Secured Party may have or
hereafter acquire for the payment of the above indebtedness, nor shall the taking of any such additional security waive or impair
this security agreement; but said Secured Party may resort to any security it may have in the order it may deem proper, and
notwithstanding any collateral security, Secured Party shall retain its rights of set -off against Debtor.
All rights of Secured Party hereunder shall inure to the benefit of its successors and assigns; and all promises and duties of
Debtor shall bind his heirs, executors or administrators or his or its successors or assigns. If there be more than one Debtor, their
liabilities hereunder shall be joint and several.
Date this °` L day of 1 /�/
Q� 19
Debtor: JONES TONES, INC Secured Party:* PUEBLO, A MUNICIPAL CORPORATION
BY
It ih,. S'c rl' " mlc d'd to sene m a fan cine stlucmem naiad pate " well as the d'hi muse "p
nepreciatioNAmortintion Report 19%
Activity: Form 1121 ine 21 PAGE 1
Name JONES TONES INC. IEIN 33- 0391867
Description
of Pro a
Date
in Service
Cost
or Basis
Land
Bus
Use %
Depr
Type
Asset
Class
Conv
1
19%
De Arnort
Cost of
Goods
Sold
Date of
Disposition
Depreciable
Basis
IRC Section 179
Expense
Listed
Prop-
a rty
Depr
Meth-
od
Re-
covery
Period
Yr
of
Dept
Prior
Depreciation/
Amortization
FIXTURES
01/01/9
4 053.
1oo.o
MACRS
7
HY
709.
4
200D8
7.00
3
]COPIER
01/31/92
5,010.
1oo.0o
MACRS
7
HY
876.
5
20ODB
7.00
3
PHONE SYSTEM
01/16/92
2,073.
1oo.o
MACRS
7
HY
3631
2.073.
20ODB
7.0
CABINETS
01/15/92
6,784.
1 oo. oo
MAC RS7
HY
1 187.
6
20ODB
7.00
3
SINKS
03/25/92
1,956.
100. 00
MACRS
7
HY
342.
1
200D8
7.0
COMPUTER EQUIP
04/01/92
7,550.
loo. oc
MACRS
7
HY
1 321.
7 550.
200D8
7.00
3
COMPUTER 5/92
05/08/92
6,880.
1 oo. oo
MACRS
7
HY
1 2031
6 880.
20ODB
7.0
3
COMPUTER6 /92
06/22/92
2,537.
1oo.0
MACRS
7
HY
444.
2 537.
20ODB
7.0
3
COMPUTER8 /92
08/04/92
6,881.
loo.00
MACRS7
HY
1,204T.
6
20ODB
7.0
COMPUTERS /26/92
08/26/92
5
loo .o
MACRS
7
HY
941..,
5,382.
20ODB
7.0
3
COMPUTERIO /92
10/03/92
5,996.
1oo.0
MACRS
7
HY
T, 049.
5.996.
200D8
7.0
3
COMPUTER11 /92
11/30/92
2
1oo.00
MACRS
7
HY
41Z .
2 353
200D8
7.0
3
COMPUTER12 /92
12/11/92
3,966.
loo.00
MACRS
7
HY
694.
3.966.
20ODB
7.0
3
OFFICE EQUIP 12/9
12/09/92
2,849.
ioo.0o
MACRS
7
HY
498.
2.849.
20ODB
7.001
3
E UIP 12/92
12/11/9
9, 287.
1oo.0
MACRS7
JHY 1
1,625.1
9,287
20ODB
7 .00
3
flEPUIP2 /92
02/05/92
20,615.
1 oo. oo
MACRS
7
HY
3 606.
20 615.
20ODB
7.0
�IJ PUMP4/92
04/07/92
1,489.
10o.o
MACRS
7
HY
260.
1.489.
200DO
7.00
3
I-J INST
05/21/92
425.
ioo.o
MACRS
7
HY
74.
425.
20ODB
7.0
3
4 WAREHOUSE EQUIP8 /9
08/07/92
11683.
loo.00
MACRS
7
HY
295.
1,683.
20ODB
7.0
PHONE SYSTEM4 /9
04/21/92
3 626.
1 oo. oo
MACRS
7
HY
634.
3 626.
200D8
7.0
3
ENGINEERING EQUIP8 /92
08/ 14/92
4 1 777.
iwoo
MACRS 17
H Y J
836.
4,777.
200D8
7.00
3
41OFFICE FUR. 1/9201/15/92
6
iwoo
MACRS
7
HY
12,180.
69,630.
20ODB
7.0
3
,',, MAC. & E P.1 /9
01/20/92
92 867.
ioo.o
MACRS
7
HY
16 2451
92,867.
200D8
7.00
3
'MAC &E P. 12/92
12/10/92
9
100.0o
MACRS 17
HY
1 625.
9,287.
20ODB I7.00
3
Touts
Total cost of goods sold ....................... ...............................
-- EXHIBIT A
Activity: F
Form 112C
Name JONES T
TONES I
INC.
opreciation/Arnortization 99
Report 14
ine 21 PAGE 2
EIN 33- 0391967
Description Date Cost Land Bus I Depr I Asset 1co 1994
of Pro in Service or Basis I I Use %I Type I Class I I DepdAmnrt
Total cost of goods sold ....................... ...............................
Total cost of goods sold ....................... ...............................
AltempNve Minimum Tax Depreciation Ro _ art 1994
Activity: Form 112L _ i ne 21 PAGE 1
Name lEmpioyer Identification Number
JONES TONES INC.
33- 0391867
Description
of Pro a
Real
Pro
Leased
Property
AMT Cost
or Basis
AMT Recovery
Period
AMT 1994
Depreciation
AMT
Acl ustment
AMT Depreci-
able Basis
AMT Deprecia-
lion Method
AMT Prior
Depreciation
ANT
Pmkrence
,: FIXTURES
4 053.
10.0
478.
231.
4 053.150DB
COPIER 1 1
5!010.
7.00
753.
1231
5 010.15OD6
' SYSTEM I 1
2 073.
10.00
245.
118
2 073.15ODB
`;.:CABINETS
6,784.
10.001
800.
6 784.15ODB
'E SINKS
1 956.
10.00
231.
1,956.
150DO
xCOMPUTER EQUIP 1
7,550.
10.00
890.
431.
7,550.
150DB
'1 COMPUTER 5/92
6
10.0
811.
392.
6 880.15ODB
COMPUTER6 /92 1
2 537.
10.0
299.
145.
2,537 ,
150DB
COMPUTER8 /92
6,881.
10.0
812.
392.
6 881.15OD6
- COMPUTER8 /26/92
5,382.
10.0
635.
306.
5 382.15ODB
COMPUTERIO /92 I I
5
10.0
707.
342.
5 996.15ODB
=COMPUTERII /92 1
2!353.
10.00
278.
134.
2 353.15OD6
COMPUTERI2 /92 1 1
3
10.00
468.
226.
3 966.15ODB
OFFICE EQUIP 12/92
2 849.
10.0
336.
162 .
2,849.
150DB
'-EQUIP 12/92 1 1
9,287.
10.00
1,095.
9 287.150D8
eEPUIP2 /92
20 615.
10.00
2.431.
1 175.
20,615.
150DB
- ' "PUMP4 /92 I 1
1,48-9.
10.001
176.
84.
1,489.
150DO
INSTRUMENT5 /92 1
425.
10.00
50.
24.
425.150DB
WAREHOUSE EQUIPS /92
1 683.
10.00
198.
97.
1 683.15ODB
4PHONESYSTEM4 /92 1
3,626.
10.0
428.
206.
3 626.15ODB
,, ENGINEERING EQUIPS /92 1 1
4 777.
10.0
563.
273.
4:777.
150DB
;:OFFICE FUR. 1/92 1
69,630.
10.0
8,212.
3 968.
69,630.
150DB
°MAC. & E P.1/92 1
9-2-,8-6-7.
10.0
10,953.
5,292.
92,867.
150DO
:MAC &E P.12/92
9 287.
10.0
1 095.
530.
9 287.15OD6
Totals .... ...............................
277
32 944.1
15
277 956.
• - AMT may apply based on method used for regular tax purposes.
Altem"ve Minimum Tax Depreciation Ro -wi
Form 112L -ine 21
1994
Name Employer Identification Number
JONES TONES INC. 1 33-0391867
Description
Real
I Leased I
AMT Cost
AMT Recovery
AMT 1994
ANT
, d of Property
1 propertAProperVor
Basis
I Period I
Depreciation 1
AcluslOwnt
• — AMT may apply based on method used for regular tax purposes.