HomeMy WebLinkAbout8204RESOLUTION NO. 82p4
A RESOLUTION APPROVING AN AGREEMENT BETWEEN
PUEBLO, A MUNICIPAL CORPORATION AND FOUNTAIN
FOUNDRY, INC. RELATING TO A JOB CREATING CAPITAL
IMPROVEMENT PROJECT AND AUTHORIZING THE
EXPENDITURE OF $105,000 THEREFOR FROM THE 1992 -2001
SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS
FUND
WHEREAS, Fountain Foundry, Inc. has expressed a willingness to expand its business
activities within the City of Pueblo and has committed to employ seventy (70) full time employees
within the City of Pueblo, and
WHEREAS, Fountain Foundry, Inc. through the Pueblo Economic Development Corporation
has made application for funds from the 1992 -2001 Sales and Use Tax Capital Improvement
Projects 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 Fountain Foundry, Inc.'s application
for funds meets and complies with the criteria and standards established by Ordinance No. 5742 and
will create employment opportunities justifying the expenditure of public funds.
SECTION 2
The Agreement dated August 11, 1997 between Pueblo, a municipal corporation and
Fountain Foundry, Inc., a copy of which is attached hereto and incorporated herein, having been
approved as to form by the City Attorney, is hereby approved. The President of the City Council
is authorized to execute and deliver the Agreement 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 not to exceed $105,000 are hereby authorized to be expended and made
available to Fountain Foundry, Inc. out of the 1992 -2001 Sales and Use Tax Capital Improvement
Projects 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 Fountain Foundry, 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.
ATTEST:
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INTRODUCED: August 11 , 1997
By Al G ir>ile
Councilperson
APPROVED: r
r
President of t ` City Council
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AGREEMENT
THIS AGREEMENT entered into as of August 11, 1997 between Pueblo, a municipal
corporation (the "City ") and Fountain Foundry, Inc., a Colorado Corporation (the "Company ").
WHEREAS, Company has expressed a willingness to expand its business within the City of
Pueblo 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.
As used in this Agreement, the following terms shall have the following meanings:
"Company's Contribution" means the approximately $425,000 Company will spend to
expand its business on the Property including the $105,000 to be advanced by City under this
Agreement.
"Full -Time Employee" means a person employed by Company to perform work at the
Property for not less than thirty-two (32) hours per week. The term "Full -Time Employee" does not
include independent contractors nor employees of independent contractors.
"Monthly Employees" means the sum of the number of Full -Time Employees on each
business day of a calendar month divided by the sum of the business days in such month.
"Property" means the building and facilities located at 1815 West 14th Street, Pueblo,
Colorado.
2. Company shall spend Company's Contribution in furtherance of Company's
expansion of its business on the Property in an expeditious manner.
3. City will make available to Company funds in an amount not to exceed $105,000 to
assist Company in the expansion and improvement of the Property (the "City Funds "). Company
shall spend City Funds only for capital improvements. City Funds will be advanced to Company
subject to and contingent upon:
(a) Company filing in the office of the City Clerk copies of the following: (i)
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,(ii) Certificate
of Good Standing issued by the Colorado Secretary of State, and (iii) evidence satisfactory to City
that Company has spent or has lawfully committed to spend Company's Contribution. The date of
such filings is herein referred to as "Closing."
(b) All construction contracts for improvements to the Property for which
payment is sought from City shall be awarded after competitive proposals which allows qualified
local contractors to reasonably participate in the competitive bidding procedures.
(c) Company filing with the Director of Finance of City, within twelve (12)
months from date of this Agreement, written requests for payment certified by an authorized officer
of Company that the amounts included in the request for payment have not been included in any
prior request for payment and are for the actual cost of capital improvements to the Property,
identifying the capital improvements for which reimbursement is sought, including invoices or
statements from the architect or contractor that such improvements have been completed.
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 not
less than seventy (70) 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 portion of the 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:
(a) During the five (5) year period starting July 1, 1998 and ending sixty (60)
months thereafter (the "Repayment Period "), Company shall pay to City an amount each month
equal to the Monthly Employees less than seventy (70) employed at the Property by Company
multiplied by Fifty and No /100 Dollars ($50.00) (the "Company's Monthly Payments "). If the total
of City Funds advanced to Company is less than $105,000, the $50.00 will be proportionately
reduced. For example, if the total of City Funds advanced to Company is $105,000 and for the
month of June 1999 the Monthly Employees was 50, the amount payable by Company to City during
the month of July 1999 would be $1,000.00 (70 - 50 x $50.00).
(b) Company's Monthly Payments, if any, shall be paid to the City without notice,
demand, offset or deduction on or before the fifteenth (15th) day of each month during the
Repayment Period and for one (1) calendar month thereafter at the office of the Director of Finance
of City, 1 City Hall Place, Pueblo, Colorado, 81003. All past due Company's Monthly 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 calendar month during the
Repayment Period and for one (1) calendar month thereafter, Company will submit to City's Director
of Finance Company's statement showing the Monthly Employees for the preceding month and the
basis upon which Monthly Employees and Company's Monthly 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, and construed
to be a debt of Company payable to City until Company performs and discharges its obligations
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hereunder including its Repayment Obligation contained in this paragraph 5.
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
hearing, finds and determines 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, 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 give notice to 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
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 January 1, 1998, this Agreement shall
terminate and City and Company shall be released and discharged from all obligations hereunder.
8. 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. To the extent permitted by law, each party waives its right to a jury trial.
9. 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.
10. This Agreement shall be construed in accordance with and governed by the laws of
the State of Colorado.
11. Any notices hereunder shall be sufficiently given if given personally or mailed by
first class mail, postage prepaid, addressed:
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(a) if to City, City Manager, City of Pueblo, 1 City Hall Place, Pueblo, Colorado,
81003, or
(b) if to the Company, 1815 West 14th Street, Pueblo, Colorado, 81003,
Attention: Charles W. Frazier, Jr.;
or to such other address as either party shall specify in written notice given to the other party.
12. This Agreement shall be binding upon and inure to the benefit of the parties and their
respective successors and assigns, provided Company may not assign this Agreement or any interest
herein without the prior written consent of City. At the election of City, any assignment or
attempted assignment without the consent of City shall be null and void.
13. The person signing this Agreement on behalf of Company represents and warrants
that such person 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.
14. 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 the day and year first above written.
[SEAL]
PUEBLO, A MUNICIPAL CORPORATION
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ATTEST: By
City Cle President of the Uity Co ncil
[SEAL
0
Name: ,Zl - �'4f/
Title: C--
FOUNTAIN FOUNDRY, INC.
Title:
Federal Identification No. N 061 cgs-'c
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