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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. -2- 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 -3- 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 -4- 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 -5- 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 Im 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 -7- 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. 10 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. M 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, a limite companny_ By t v Name: )+%C r Title: <' FCD -10- Title: 0 ; 74 y / �' EXHIBIT `A' 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. A ti