Loading...
HomeMy WebLinkAbout8765RESOLUTION NO. 8765 A RESOLUTION APPROVING AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND MCDONNELL DOUGLAS CORPORATION, A WHOLLY OWNED SUBSIDIARY OF THE BOEING COMPANY, RELATING TO A JOB CREATING CAPITAL IMPROVEMENT PROJECT AND AUTHORIZING THE EXPENDITURE OF $1,500,000 THEREFOR FROM THE 1992 -2001 SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS FUND WHEREAS, The Boeing Company (the "Company ") has expressed a willingness to expand its business activities at the Pueblo Memorial Airport Industrial Park and has committed to employ an additional 150 full time employees, and WHEREAS, Company through the Pueblo Economic Development Corporation has made application for funds from the 1992 -2001 Sales and Use 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 The Boeing Company's application for funds meets and complies with the criteria and standards established by Ordinance No. 6381 and will create employment opportunities justifying the expenditure of public funds. SECTION 2_ The Agreement dated as of July 26, 1999 between Pueblo, a municipal corporation, and The Boeing Company, a copy of which is 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 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 $1,500,000 are hereby authorized to be expended and made available to The Boeing Company out of the 1992 -2001 Sales and Use Tax Capital Improvement Projects Fund for the sole purpose of the job creating capital improvement project and in the manner 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 The Boeing Company after receipt (i) by the City Clerk of the documents required to be filed pursuant to paragraph 2(c) of the Agreement and (ii) by the Director of Finance of written requests for payment required by paragraph 2(d) of the Agreement. SECTION 4 This Resolution shall become effective upon final passage. ATTEST: 4 Cityirrk INTRODUCED: July 26, 1999 B Bob Schilling Councilperson APP VED: resident of the City Council F:\ FILES \CITY\ECONDEV \BOEING \RESOLUIN.WPD -2- AGREEMENT THIS AGREEMENT entered into as of July 26, 1999 between Pueblo, a municipal corporation (the "City ") and McDonnell Douglas Corporation a wholly owned subsidiary of The Boeing Company, a Delaware corporation (the "Company "). WHEREAS, Company has expressed a willingness to expand 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. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Company agree as follows: 1. The following terms as used in this Agreement shall have the following meaning unless the context clearly indicates otherwise: "Current Employment" means two hundred seventy -five (275) Full -Time Employees. "Employment Commitment Date" means the earlier of (i) six months after substantial completion of the Improvements or (ii) August 1, 2000. "Facility" means Company's facilities located on Tracts 1 and 2, McDonnell Douglas Subdivision, Pueblo County, Colorado. "Full -Time Employee" means a person who actually performs work at the Facility 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 approximately 36,000 square foot industrial building and related site improvements to be constructed and installed adjacent to what is commonly known as Building 4, located on Tracts 1 and 2, McDonnell Douglas Subdivision, Pueblo County, Colorado, for Company by Pueblo Development Foundation. "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. "Quarter" means three consecutive calendar months. 2. City will advance to or for the benefit of Company funds in the amount of $1, 500,000.00 (the "City Funds "), subject to and contingent upon the following conditions and covenants which Company agrees to perform and comply with: (a) Company shall use and all City Funds shall be spent solely for the construction and installation of the Improvements. (b) Company shall cause the Improvements to be constructed and installed in an expeditious manner. (c) Company shall file in the office of the City Clerk copies of the following: (i) Company's certificate or other evidence of authority to transact business in the State of Colorado, (ii) this Agreement executed by an authorized representative of Company, and (iii) evidence satisfactory to City that Company has commenced to expand its business in the Facility. The date of such filings is herein referred to as "Closing." If Closing does not occur on or before December 1, 1999, or such later date as Company and City shall mutually agree, this Agreement shall terminate and City and Company shall be released and discharged from all obligations hereunder. (d) 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 constructing the Improvements, identifying the portion of the Improvements for which payment is requested, including certificates of the architect and contractor that such portion of the Improvements have been constructed and installed. (e) All construction contracts for the Improvements shall be awarded by competitive bidding. General contractors holding Building Contractors -A (General Unlimited) licenses having their principal place of business in the City or County of Pueblo who are qualified and experienced to perform construction work for the Project ( "Local Contractors ") shall be invited to submit bids. Other qualified general contractors with their principal place of business outside of Pueblo County, Colorado may be invited to submit bids. The same scope of work to be bid shall be timely furnished to each general contractor invited to bid. For "design- build" or other contractual arrangements, this requirement may be accomplished by a pre -bid conference or other acceptable competitive bidding procedure which allows Local Contractors a reasonable opportunity to participate in the competitive bidding procedures. All bids will be received and opened publicly. The construction contract shall be awarded to the lowest qualified bidder. A similar provision with respect to local subcontractors and suppliers shall be included as part of the construction contract with the general contractor who shall use its best efforts in good faith to engage local subcontractors and suppliers for such construction. If Company or Pueblo Development Foundation, their employees or agents negotiate with a general contractor, subcontractor or supplier with respect to the Improvements prior to competitive bidding, a construction contract shall not be entered into with such general contractor, subcontractor or supplier for the Improvements. "Negotiate" means to discuss, confer upon, or arrange the terms and conditions of a construction contract including, without limitation, obtaining estimates of construction costs. -2- 3. Company acknowledges and agrees that the primary purpose of City in entering into this Agreement and the sole benefit to the City for making City Funds available to Company hereunder is the creation of jobs. Therefore, Company represents, covenants, and agrees that it will employ not less than one hundred fifty (150) Full -Time Employees in addition to the Current Employment or a total of four hundred twenty -five (425) Full -Time Employees at the Facility by the Employment Commitment Date and thereafter (the "Employment Commitment "). 4. Notwithstanding anything contained herein to the contrary, if Company shall for any reason default in its Employment Commitment set forth in paragraph 3 hereof, Company shall repay to City a pro -rata share of the City Funds advanced by City under paragraph 2 hereof based upon the number of Full -Time Employees employed by Company at the Facility (the "Repayment Obligation "), as follows: (a) During the five (5) year period starting on the Employment Commitment Date 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 four hundred twenty -five (425) employed at the Facility by Company multiplied by $500.00 (the "Company's Quarterly Payments "). Company's Quarterly Payment for any one Quarter will not exceed $75,000.00. For example, if for the Quarter ending June 2003 the Quarterly Employees is 400, the amount payable by Company to City on or before July 15, 2003 would be (425 - 400) x $500.00 = $12,500.00. (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 after the Employment Commitment Date and for one calendar month after the Repayment Period, Company will submit to City's Director of Finance Company's statements showing the Quarterly Employees for the preceding Quarter and the basis upon which Quarterly Employees and Company's Quarterly Payment, if any, 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 and Company as to confidentiality of personnel records. (d) If Company defaults in its Repayment Obligation by failing to make a Quarterly Payment when due, and such default is not cured within sixty (60) days after written notice specifying the default is given by City to Company, then in such event, City may declare the entire balance of Company's Repayment Obligation due and owing together with interest thereon at the rate of ten (10) percent per annum, and for such purpose, the entire balance of Company's Repayment Obligation shall be an amount equal to 150 times $500.00 multiplied by the remaining Quarters of the Repayment Period plus the amount of Company's unpaid Quarterly Payments, if any, but in no -3- event more than the amount of City Funds advanced by City under paragraph 2 hereof and interest as herein provided. Company's Repayment Obligation is absolute and unconditional and shall not be abated, reduced, diminished, modified, withheld or otherwise offset for any cause or reason whatsoever. 5. 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 Obligation contained in paragraph 4. 6. (a) City Council of City may, in its sole discretion, relieve Company, in whole or in part, from Company's Repayment Obligation set forth in paragraph 4, if the City Council, after public 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, 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 4, 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 by the City in scheduling a hearing, or failure by City to exercise its right to enforce this Agreement, including 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. 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 allowed by law, each party waives its right to a jury trial. 8. 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. 9. This Agreement shall be construed in accordance with and governed by the laws of -4- the State of Colorado without regard to conflict of law principles. 10. The covenants, representations and warranties made by each party herein shall survive the Closing for the benefit of the other party. 11. Company acknowledges and agrees 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 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, and Company further acknowledges and agrees that City has not made, nor by any provision of this Agreement shall City be construed to have made any representation or warranty to the contrary with respect thereto. 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, with copy to Thomas E. Jagger, City Attorney, 127 Thatcher Building, Pueblo, Colorado, 81003, or (b) if to the Company, One McDonnell Douglas, Pueblo, Colorado, 81001, or to such other address as either party shall specify in written notice given to the other party. 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 without the express written consent of the City, which consent may be arbitrarily withheld, conditioned or delayed. Any assignment or attempted assignment of this Agreement by Company without such consent shall be null and void. 14. The persons signing this Agreement in the name of and on behalf of Company represent and warrant that they 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. Company represents and warrants that no person, entity, or organization has been employed or retained or will receive or be paid, directly or indirectly, any commission, percentage, contingent fee or any other remuneration payment or receipt of which is contingent upon approval of this Agreement or City's advancement of funds to Company hereunder. For breach or violation of this warranty, City shall have the right to terminate this Agreement, or recover the full amount of such commission, percentage, contingent fee or other remuneration, or to seek such other remedies legally available to City, which remedies shall be cumulative. N72 16. In no event shall City, its officers, agents or employees be liable to Company for damages, including without limitation, compensatory, punitive, indirect, special or consequential damages, resulting from or arising out of or related to this Agreement or the performance or breach thereof by City or the failure or delay of City in the performance of any covenant or provision under this Agreement on its part to be performed. In consideration of City entering into this Agreement, Company hereby waives and discharges City, its officers, agents and employees from any and all claims for any and all such damages. No breach, default, delay or failure of City under this Agreement shall be or be construed to be a waiver or release of Company's Repayment Obligation under paragraph 4 hereof with respect to the amount of City Funds actually advanced or paid by City to or for the benefit of Company pursuant to paragraph 2 hereof. Company shall have the right to file an action to specifically enforce City's obligations under this Agreement without showing or proof of an inadequate remedy at law. In no event shall Company be liable to City for special or consequential damages resulting from or arising out of or related to this Agreement or the performance or breach thereof by Company or failure or delay of Company in the performance of any covenant or provision under this Agreement on its part to be performed. 17. 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. 18. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the other provisions of this Agreement which shall remain in full force and effect. Executed at Pueblo, Colorado, the day and year first above written. [SEAL] ATTEST: City C k [SEAL] ATTEST:_ Name: Title: Pueblo, 1 nicipal Co ration By A J to "C [ President of the City Council McDONNELL DOUGLAS CORPORATION B Name P K . MAtz S 4-4 Title: 6� n e-e-M- Mr A(44. Tl/C i3,--L A-% S €(�� a L l L✓ t'Es(A i7r�t .S F:\ FILES \CITY\ECONDEV \BOEING \AGRMENT.WPD -6-