HomeMy WebLinkAbout10726RESOLUTION NO. 10726
A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A
MUNICIPAL CORPORATION AND CINGULAR WIRELESS, LLC, A DELAWARE LIMITED
LIABILITY COMPANY RELATING TO A JOB CREATING CAPITAL IMPROVEMENT PROJECT
WITHIN THE CITY OF PUEBLO, AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO
EXECUTE SAME, AND TRANSFERRING $5,670,000 FROM THE 1992 -2006 SALES AND USE
TAX CAPITAL IMPROVEMENT PROJECTS FUND FOR THE PROJECT
WHEREAS, Cingular Wireless, LLC, a Delaware limited liability company ( "Cingular
Wireless ") has made application for funds for a proposed job creating capital improvement project
whereby Cingular Wireless will locate an inbound service support center facility within the City of
Pueblo and employ five hundred (500) full -time employees at the facility, and
WHEREAS, the City Council of City has approved such application. NOW, THERE -FORE,
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1
The City Council finds and determines that (a) the expenditure of $5,670,000 for the job
creating capital improvement project with Cingular Wireless described herein and in the attached
Agreement between the City and Cingular Wireless ( "Project') meets and complies with the criteria
and standards established by Ordinance No. 6381, (b) the Project will create employment
opportunities for the citizens of the City of Pueblo thereby reducing unemployment and social evils
associated therewith, (c) the Project will enhance the economic development of the City by the
establishment of a new business resulting from Cingular Wireless making a commitment to operate
a new business facility, and (d) the expenditure of funds for a job creating capital improvement
project is a public purpose and municipal function and is in furtherance of the public health, safety
and welfare.
SECTION 2
The Agreement dated May 8, 2006 between the City and Cingular Wireless, 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, or in his absence the Vice - President of the City
Council is authorized to execute and deliver the Agreement in the name of the City and the City
Clerk is directed to affix the seal of the City thereto.
SECTION 3
Funds in the amount of $5,670,000 are hereby authorized to be transferred, expended and
made available to Cingular Wireless out of the 1992 -2006 Sales and Use Tax Capital
Improvement Projects Fund for the sole purpose of the Project in the manner described in the
Agreement. The funds hereby authorized to be transferred and expended shall be released and
paid by the Director of Finance to or for the benefit of Cingular Wireless after receipt by the Director
of Finance of written requests for payment required by Paragraph 2(c) of the Agreement.
SECTION 4
The officers and employees of the City are directed and authorized to perform any and all
acts consistent with this Resolution and Agreement necessary and required to effectuate the
transactions described herein.
SECTION 5
This Resolution shall become effective upon final approval and passage.
BY Randy Thurston
Councilperson
APPROVED: �•�
President of City Council
ATTESTED BY:
CITY CLERK
INTRODUCED May 8, 2006
Background Paper for Proposed
RESOLUTION
/& - 4/6 - 7 c �6
AGENDA ITEM # a'/ 4
DATE: May 8, 2006
DEPARTMENT: Law Department
TITLE
A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF
PUEBLO, A MUNICIPAL CORPORATION AND CINGULAR WIRELESS, LLC, A
DELAWARE LIMITED LIABILITY COMPANY RELATING TO A JOB CREATING
CAPITAL IMPROVEMENT PROJECT WITHIN THE CITY OF PUEBLO,
AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME,
AND TRANSFERRING $5,670,000 FROM THE 1992 -2006 SALES AND USE TAX
CAPITAL IMPROVEMENT PROJECTS FUND FOR THE PROJECT
ISSUE
Should City Council approve an agreement for a job creating capital improvement
project with Cingular Wireless, LLC?
RECOMMENDATION
Staff recommends approval of the agreement.
BACKGROUND
Cingular Wireless, LLC ( "Cingular ") has made application for $5,670,000 of City's
one -half cent sales and use tax revenue for a job creating capital improvement
project whereby Cingular will locate an inbound service support center facility in a
76,000 square foot building to be located on the property commonly known as the
former Andrews Foodservice Systems, 100 South Main Street, Pueblo, Colorado
( "Facility "). Cingular has committed to employ 500 full -time employees in the
Facility. During the seven year repayment period starting no later than October 1,
2008, if Cingular does not employ 500 employees who perform work at the Facility
for not less than 32 hours per week at an hourly salary of not less than $10.00 per
hour plus benefits, including health insurance and employment opportunities,
Cingular will each quarter pay the City $405 for each full -time employee less than
500.
Cingular warrants that the total cost of the Project is not less than $18,000,000
(including building, land and equipment).
City funds will be used to purchase equipment installed and used in the Facility and
Cingular will give City a prior perfected security interest in the equipment to secure
Cingular's performance.
City has committed to make available no less than 297 parking spaces during the
hours from 7:00 A.M. to 9:00 P.M., Monday through Friday, and from 9:00 A.M. to
6:00 P.M. on Saturday as needed for use by Cingular' full -time employees
performing work in Facility. The details of the parking space commitment are set
forth in Paragraph 8 of the attached Agreement.
FINANCIAL IMPACT
See Background.
6plla
AGREEMENT
THIS AGREEMENT entered into as of May 8, 2006 between the City of Pueblo, a municipal
corporation (the "City "), and Cingular Wireless, LLC, a Delaware limited liability company, and
its affiliates (the "Company ").
WHEREAS, Company has expressed a willingness to locate an inbound service support
center facility within the City of Pueblo and in furtherance thereof has 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:
I. The following terms as used in this Agreement shall have the following meaning
unless the context clearly indicates otherwise:
"Employment Commitment Date" means the 1 st day of the calendar month following the
calendar month in which Company gives written notice to City of the commencement of the
Employment Commitment Date, or October 1, 2008, whichever occurs first.
"Equipment" means new business personal property generally described in attached Exhibit
"A" to be acquired, installed, kept, maintained and used by Company after date of this Agreement
in the Facility having an exhaustible useful life of not less than three (3) years which can be
determined or estimated with reasonable accuracy. "Equipment' does not mean intangible property,
including but not limited to, computer software and/or computer software development costs.
"Computer software" includes but is not limited to all computer data base, programs and routines,
and documentation.
"Facility" means the approximately 76,000 square foot building to be located on the property
commonly known as the former Andrews Foodservice Systems, 100 South Main Street, Pueblo,
Colorado ( "Property "), wherein Company will conduct its business operations.
"Full -Time Employee" means a person who actually performs work at the Facility for not
less than thirty -two (32) hours per week at an hourly salary of not less than $10.00 per hour plus
benefits, including health insurance and educational opportunities, 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 or employees of independent
contractors except employees of an independent contractor acting as an agency to provide Full -Time
Employees for Company who perform work at the Facility.
"Lease" means an enforceable long -term lease of the Facility between Company, as tenant,
and HCPN, as landlord, for a term not less than ten (10) years.
"Project" means and includes the Property and all improvements thereon including the
Facility and Equipment.
"Quarter" means three consecutive calendar months commencing on the first day of January,
April, July and October of each calendar year.
"Quarterly Employees" means the sum of the aggregate number of Full -Time Employees on
each business day of a Quarter, divided by the number of business days in the Quarter.
2. Company represents and warrants to the City as an inducement for City to enter into
this Agreement and advance funds to or for the benefit of Company that the total cost of the Project
is not less than $18,000,000.00 (including building, land and equipment). Therefore, in reliance
upon such representation and warranty, City will advance to or for the benefit of Company funds
in an amount not to exceed $5,670,000.00 (the "City Funds "), subject to and contingent upon the
following conditions and covenants which Company agrees to perform and comply with:
(a) City Funds will be advanced by City solely for the acquisition of Equipment
by Company at fair market value from a reputable vendor in an arms - length transaction. Acquisition
of Equipment from any person or entity related to or a subsidiary of Company is not an arms- length
transaction. Company will give to City a prior perfected security interest (the "Security Interest ")
in all Equipment purchased with City Funds to secure Company's obligations under this Agreement.
(b) 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
issued by the Colorado Secretary of State, (ii) certified copy of the resolution of the governing board
of Company approving this Agreement and authorizing its officers to execute and deliver this
Agreement, Lease, and related documents in the name of Company, (iii) executed copy of a
memorandum of the Lease or short-form of the Lease confirming the existence and execution of the
Lease; and (iv) evidence reasonably satisfactory to City that Company will commence business
operations at the Facility. The date of the last to occur of the filings required under (i), (ii) (iii) and
(iv) of this Paragraph 2(b) shall be referred to herein as "Closing." If Closing does not occur on or
before October 1, 2006, or such later date as Company and City shall mutually agree, City, at its sole
option, may terminate this Agreement and City and Company shall thereafter be released and
discharged from all obligations hereunder.
(c) As conditions precedent to the disbursement of City Funds for the acquisition
of Equipment, (i) Company shall file in the office of the City Clerk the documents required by (b)
above, and (ii) Company shall file with City's Director of Finance written request for payment
certified to be true and correct by an 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
Equipment, identifying the Equipment for which payment is sought, including invoices therefore
and certificates of delivery and installation in the Facility, together with documentation, satisfactory
to City, establishing such Equipment has an exhaustible useful life of not less than three (3) years.
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All City Funds, if any, received by Company shall be accounted for in a separate ledger account of
Company and held in trust by Company for the sole and only purpose of paying for the purchase of
Equipment.
3. (a) Company shall have the right from time to time, without any release from or
consent by City, to sell, replace or otherwise dispose of any item of the Equipment that may have
become obsolete or unfit for use or no longer useful, necessary or profitable. At the written request
of Company, City shall promptly release the Security Interest with respect to all disposed of
Equipment. Company shall be required to replace such disposed of Equipment if the fair market
value of the remaining Equipment subject to the Security Interest is less than Company's remaining
Repayment Obligation, as defined in Paragraph 5(a), (as prorated over the term of the Repayment
Period as defined in Paragraph 5(a)), in which event Company shall supplement the Security Interest
to include any replacement Equipment and such other collateral which is equal to or greater than the
prorated amount of the remaining Repayment Obligation.
(b) Company may, at its own expense, install at the Facility personal property or
trade fixtures other than the Equipment subject to the Security Interest ("Additional Equipment ").
Any such Additional Equipment which is purchased and installed at Company's expense shall be
and remain the property of Company and may be removed by Company at any time. If any of the
foregoing Additional Equipment is leased by Company or Company shall have granted a security
interest in such Additional Equipment in connection with the acquisition thereof by Company, then
(i) City hereby disclaims, waives, and releases any and all right available to City to lien, distrain or
attach such Additional Equipment; and (ii) in order to facilitate any Additional Equipment financing
required by Company, City agrees to execute and deliver to Company and Company's lender, from
time to time, a "waiver and consent" confirming the foregoing.
(c) City covenants and agrees that, provided Company has fulfilled all
requirements of the Repayment Obligation described in Paragraph 5 below City shall promptly
release the Security Interest upon expiration of the Repayment Period described in Paragraph 5(a)
below.
4. 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 j obs. Therefore, Company represents, covenants, and agrees that it will
after date of this Agreement continuously conduct its business operations and employ Full -Time.
Employees at the Facility as follows: (i) during the period from date hereof to the Employment
Commitment Date, Company shall use its best efforts in good faith to employ as many Full -Time
Employees as reasonably justified by its business operations, and (ii) on and after the Employment
Commitment Date, Company shall employ not less than Five Hundred (500) Full -Time Employees
at the Facility (collectively the "Employment Commitment ").
5. Notwithstanding anything contained in this Agreement to the contrary, if Company
shall for any reason default in its Employment Commitment set forth in Paragraph 4, 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
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Obligation "), as follows
(a) During the seven (7) year period starting on the Employment Commitment
Date and ending eighty-four (84) months thereafter (the "Repayment Period ") Company shall pay
to City an amount each Quarter equal to the Quarterly Employees less than five hundred (500) Full -
Time Employees employed during such Quarter at the Facility by Company multiplied by $405.00
(the "Company's Quarterly Payments "). For example, if during the Second Quarter of the second
year after the Employment Commitment Date such Quarterly Employees is 450, the amount payable
to City on or before the 15' day of the next calendar month would be (500 -450) x $405.00 =
$20,250.00.
(b) Company's Quarterly Payments, if any, shall be paid to the City without
notice, demand, deduction or setoff on or before the thirtieth (30th) 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, or such other person or
location as the City may designate. All past due Company's Quarterly Payments shall bear interest
at the rate of eight (8) percent per annum (the "Default Rate ") until paid.
(c) Within thirty (30) days after the end of each Quarter after the Employment
Commitment Date, and for one calendar month after the Repayment Period, the 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. Upon
receipt of written request from City, Company will provide City with payroll records and other
supporting documentation to support the foregoing certification. Notwithstanding the foregoing,
Company shall not be required to provide any information subject to the privacy rights of its
employees. City covenants and agrees to treat all documents provided by Company, except the
number of Quarterly Employees reported to City, as confidential and shall not disclose same (except
pursuant to a subpoena or court order or in the event any action is filed by City to enforce this
Agreement) to any party other than those City employees who have a need to know such
information.
(d) Notwithstanding anything contained in this Agreement to the contrary, if (i)
Company defaults in the performance of any material covenant or obligation under this Agreement,
including without limitation, its Repayment Obligation, (ii) such default is not cured within ninety
(90) days after written notice sent by registered or certified mail to the Company specifying the
default, and (iii) such default if continuing would materially frustrate the intent of this Agreement,
then in such event, City may declare the entire balance of Company's Repayment Obligation due
and owing together with interest thereon from the date of default at the Default Rate, and for such
purpose, the entire balance of Company's Repayment Obligation shall be an amount equal to 500
times $405.00 multiplied by the remaining Quarters or prorated portions of a Quarter of the
Repayment Period plus the amount of Company's unpaid Quarterly Payments, if any. 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; provided, however,
Company's Repayment Obligation shall be reduced by $202,500.00 for each Quarter during the
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Repayment Period Company meets its Repayment Obligation by either (i) employing 500 Quarterly
Employees at the Facility, or (ii) paying Company's Quarterly Repayment for such Quarter.
(e) Except as otherwise provided in Paragraphs 9 and 15 hereof, damages
awarded to City for any breach of this Agreement by Company shall not exceed the amount of
Company's Repayment Obligation (as the same may be accelerated under Paragraph 5(d) above)
plus interest at the Default Rate; provided however, Company Repayment Obligation shall be
reduced by $202,500.00 for each Quarter during the Repayment Period Company meets its
Repayment Obligation by either (i) employing 500 Quarterly Employees at the Facility, or (ii)
paying Company's Quarterly Payment for such Quarter.
6. Company's Repayment Obligation contained in Paragraph 5 shall be deemed to be
a debt of Company payable to City until Company performs and discharges its obligations hereunder
including its Repayment Obligation.
7. (a) Prior to instituting any proceeding to enforce Company's Repayment
Obligation under Paragraph 5, City shall notify Company in writing of its intention to institute such
proceedings. Company may request relief from its Repayment Obligation by delivering to City
within thirty (30) days after date of City's notice, Company's written request for relief specifying
the grounds upon which such relief is sought together with documents supporting such grounds.
Within ninety (90) days after receipt of Company's request, City will schedule a meeting with the
City Council at which Company may appear. City will notify Company of the time and place of the
meeting. Failure of Company to timely deliver its complete written request for relief and grounds
therefore or to appear at the scheduled meeting with the City Council shall entitle City to
immediately institute proceedings to enforce Company's Repayment Obligation.
(b) City Council may or may not, in its sole and absolute discretion, relieve
Company, in whole or in part, from Company's Repayment Obligation. Any action taken by the
City Council relating to a request for relief shall be final and binding on Company, and not subject
to judicial review. Any such action by City Council is, and shall constitute, a legislative measure.
Nothing contained in this Paragraph 7 shall grant or be construed to grant to Company any right to
relief from its Repayment Obligation.
(c) No delay by the City in scheduling a meeting, 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.
8. , Company represents and warrants that it needs a total of 525 parking spaces for its
Full -Time Employees performing work at the Facility and that Company will have available 228
off - street parking spaces on the Property. Therefore, City commits to make available parking spaces
within the area surrounding the Facility shown on the attached Exhibit "B" ( "Parking Area ") when
needed by Company based upon the number of Full -Time Employees employed by Company at the
Facility and after such Full -Time Employees have first used and occupied the 228 parking spaces
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on the Property as follows:
(a) City will permit Company at its expense to construct, install and use in
conjunction with its business conducted at the Facility temporary off - street parking for not less than
228 motor vehicles on City's land adjacent to the Property near South Main Street at such location
and with such access as City shall designate ( "Designated Area ") for use by Company's Full -Time
Employees performing work at the Facility during the hours from 7:00 A.M. to 9:00 P.M., Monday
through Friday, and from 9:00 A.M. to 6:00 P.M. on Saturday ( "Parking Hours "). The Parking
Hours may be modified by mutual agreement of Company and City. Except during Parking Hours,
the parking spaces within the Designated Area shall be open for public parking. Company shall
keep and maintain the Designated Area and access thereto in good, clean, safe condition and repair.
The temporary off - street parking permit and authorization granted by this subparagraph (a)
( "Temporary Permit ") shall terminate upon written notice given by City to Company specifying the
date of termination which shall not be earlier than ninety (90) days after the date of City's notice of
termination. During the effective period of the Temporary Permit, City will make available as
needed for Company's Full -Time Employees performing work at the Facility additional rent -free
contiguous parking spaces designated by the City within the Parking Area in number equal to the
difference between the total number of parking spaces in the Designated Area and 297.
(b) Upon termination of the Temporary Permit, City will make available as
needed by Company in conjunction with its business conducted at the Facility a total of 297 rent -free
parking spaces within the Parking Area for use by Company's Full -Time Employees performing
work at the Facility during the Parking Hours.
(c) City or another agency or entity in cooperation with the City (herein
"Owner "), contingent upon and subject to funds being budgeted and appropriated and otherwise
made available therefor, will construct a parking structure within the Parking Area adequate in size
for both City's and Company's needs ( "Parking Structure "). Except during emergencies and
reasonable periods for repairs and maintenance, Owner will designate and make available as needed
in the Parking Structure no less than two hundred ninety-seven (297) parking spaces for use by
Company's Full -Time Employees when performing work at the Facility during the Parking Hours.
Company, in coordination with Owner, may reduce the number of parking spaces at Company's
discretion (reasonably exercised) if such parking spaces are no longer needed by Company based
upon the number of Full -Time Employees employed by Company at the Facility. Except during
Parking Hours, such parking spaces shall be open for public parking. The foregoing provision shall
not be construed or interpreted as creating a multiple - fiscal year direct or indirect debt or other
financial obligation whatsoever of the Owner or a general obligation or other indebtedness of the
Owner within the meaning of any constitutional, Charter or statutory debt limitation. The foregoing
provision shall not directly or indirectly obligate the Owner to expend any funds or make any
payment with respect to the Parking Structure in any fiscal year beyond those actually appropriated
and budgeted by the Owner therefor in such fiscal year. Parking spaces in the Parking Structure
shall be used only for parking motor vehicles in compliance with the Owner's reasonable rules and
regulations. Motor vehicles shall only be parked within marked spaces and display an appropriate
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identification that the operator thereof is a Full -Time Employee of Company. Owner may obstruct
or deny access to or use the parking spaces during emergencies and during reasonable periods for
maintenance and repairs to the Parking Structure and/or the parking spaces.
(d) Upon construction of the Parking Structure and provision of parking spaces
consistent with Paragraph (c) above, City's parking space commitment set forth in subparagraph (b)
above shall terminate.
(e) Company shall pay to the Owner of the Parking Structure during the effective
term of the Lease the following amounts:
Upon construction of the Parking Structure
and through the twelfth year of the Lease $3,000.00 per month
During the thirteenth through the
twenty- second year of the lease $4,500.00 per month
During the twenty -third through the
thirty- second year of the Lease $6,000.00 per month
Such monthly payments shall be due and payable without notice or demand in advance at the
location designated by the Owner. Past due monthly payments shall accrue interest at the Default
Rate.
(f) City's and Company's obligations under this Paragraph 8 shall automatically
cease and terminate upon the earliest to occur of any of the following events:
(i) the Lease expires or is terminated for any reason; or,
(ii) Company ceases to conduct an inbound service support center within the
Facility; or
(iii) Company's Repayment Obligation is accelerated under Paragraph 5(d)
hereof, or,
(iv) May 1, 2036.
(g) For purposes of clarification, the term "Full -Time Employee" as used in this
Paragraph 8 means (i) during the period from date hereof to Employment Commencement Date, a
person employed by Company who actually performs work at the Facility for not less than thirty-
two (32) hours per week, and (ii) after the Employment Commencement Date, a person employed
by Company who actually performs work at the Facility for not less than thirty-two (32) hours per
week at an hourly salary of not less than $10.00 per hour plus benefits, including health insurance
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and educational opportunities whether employed by Company or an outside entity as an agency to
provide Full -Time Employees for Company.
9. In the event of any litigation arising under this Agreement, the court shall award to,
and the prevailing party shall recover its costs together with all reasonable and out -of- pocket
expenses of any kind relating to the litigation including, but not limited to, reasonable attorney fees.
Venue for any such litigation shall be Pueblo County, Colorado. All such litigation shall be filed
in the District Court, County of Pueblo, State of Colorado, and each parry submits to the jurisdiction
of such District Court. To the extent allowed by law, each party waives its right to a jury trial.
10. This Agreement expresses the entire understanding of the parties and supersedes and
abrogates any and all prior dealings and commitments, whether oral or written, with respect to the
subject matter of this Agreement and may not be amended or modified except in writing signed by
City and Company. Any waiver of any provision of this Agreement must be in writing and signed
by the party whose rights are being waived. No waiver of any breach of any provision hereof shall
be or be deemed to be a waiver of any preceding or subsequent breach of the same or any other
provision of this Agreement. The failure of either party to enforce or seek enforcement of the terms
of this Agreement following any breach shall not be construed as a waiver of such breach.
11. This Agreement shall be construed in accordance with and be governed by the laws
of the State of Colorado without regard to conflict of law principles.
12. Any notices hereunder shall be sufficiently given if given in writing personally or
mailed by registered or certified 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, 503 N. Main Street, Suite 127, Pueblo,
Colorado, 81003, or
(b) if to the Company, Ms. Cynthia James, Senior Manager — Tax Credits &
Incentives, Cingular Wireless, 5565 Glenridge Connector, Suite 520, Atlanta, Georgia, 30342, or
to such other person or address as either party shall specify in written notice given to the other party
pursuant to the provisions of this Paragraph 12. Notices shall be effective (i) upon receipt if
delivered personally; or (ii) three (3) business days after deposit in the mails, if mailed.
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 approved assigns. Company may not
assign this Agreement or any interest herein without the express written consent of the City, which
consent shall not be unreasonably withheld or delayed. Any assignment or attempted assignment
of this Agreement by Company without such consent shall be null and void. No assignment of this
Agreement or any interest herein by Company shall release or discharge Company from its
obligations hereunder.
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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 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 by City or City's advancement of City Funds to Company hereunder. For breach
or violation of this warranty, City shall have the right to recover the full amount of such
commission, percentage, contingent fee or other remuneration, orto seek such otherremedies legally
available to City, which remedies shall be cumulative.
16. (a) 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 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, discharge or release of Company's Repayment Obligation under
Paragraph 5 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. Notwithstanding the foregoing, if
City defaults in the performance of its obligations under this Agreement, Company shall have the
right to specifically enforce City's obligations under this Agreement.
(b) The City does not by entering into this Agreement or by any provision hereof,
waive or intend to waive any rights, immunities, conditions or protection under the Colorado
Governmental Immunity Act, C.R.S. §24 -10 -101, et seq., or otherwise available or provided under
any law to the City and its officers and employees, except to the extent that the last sentence of
Paragraph 16(a) represents such a waiver.
17. If any provision of this Agreement is declared by a court of competent jurisdiction
to be invalid or unenforceable, and such invalidity or unenforceability does not materially frustrate
the intent of this Agreement, such determination shall not affect the other provisions of this
Agreement which shall remain in full force and effect.
18. Neither party shall be, or hold itself out as, agent of the other or as joint ventures
under this Agreement.
19. Each party acknowledges that this Agreement was fully negotiated by the parties and,
therefore, no provision of this Agreement shall be interpreted against any party because such party
or its legal representative drafted such provision.
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20. The provisions of this Agreement are for the exclusive benefit of the parties hereto
and their successors and approved assigns, and no third party shall be a beneficiary, or have any
rights by virtue of, this Agreement.
21. This Agreement may be executed in any number of counterparts, and each such
counterpart shall be deemed for all purposes to be an original, and all such counterparts shall
together constitute but one and the same original.
Executed at Pueblo, Colorado, the day and year first above written.
[SEAL]
Pueblo, a Municipal Corporation
President of the City Council
CINGULAR WIRELESS, LLC,
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Furniture
IT Phone Switch and Operating System
IT Printers
Generator
UPS System (Battery Backup for Computer Room)
Gas /Fire Suppression System for Computer Room
Signage
Kitchen Equipment
Network Cabling
Servers and Routers
Security System
Reader Boards
Air Conditioner System for Computer Room
Personal Computers
Network Infrastructure, Cell Phone Site
Parking Control System
and if necessary for the expenditure of all City Funds after the acquisition
of the foregoing described personal property, the following:
Transferable Computer Telephone Integration License;
Transferable Workforce Management System License.
NOTE: This list is not inclusive of all equipment eligible to be purchased with City Funds.
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