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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: i� INTRODUCED: August 11 , 1997 By Al G ir>ile Councilperson APPROVED: r r President of t ` City Council J: \CITY\ECONDEV\FOUNTAIN\aESOLUTI WPD _2 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 -2- 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: -3- (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 r / 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 7:\ CITY\ECONDEV\POUNTAIN\AGREE.WPD _4