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Home My WebLink About11638RESOLUTION NO. 11638 A RESOLUTION APPROVING FIRST AMENDMENT TO THE AUGUST 25, 2008 AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND VESTAS TOWERS AMERICA, INC. EXTENDING DEADLINE FOR CLOSING AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SFrTinN 1 First Amendment To Agreement dated August 25, 2008 between Pueblo, a municipal corporation and Vestas Towers America, Inc. ( "First Amendment') relating to deadline for closing, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. SECTION 2 The President of the City Council is authorized to execute the First Amendment in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. INTRODUCED: June 22, 2009 F-W Judy Weaver COUNCILPERSON APPR D' } �- PRESIDENTaf Cfty Council A77TSTFD DY: CITY CLERK ED Background Paper for Proposed RESOLUTION AGENDA ITEM # 8 DATE: June 22, 2009 DEPARTMENT: Law Department TITLE A RESOLUTION APPROVING FIRST AMENDMENT TO THE AUGUST 25, 2008 AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND VESTAS TOWERS AMERICA, INC. EXTENDING DEADLINE FOR CLOSING AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME ISSUE Should the City Council agree to extend the closing under agreement with Vestas Towers America, Inc.? RECOMMENDATION Approve the extension. BACKGROUND The August 25, 2008 Agreement between the City and Vestas Towers America, Inc. ( "Vestas ") required that certain documents be filed with the City Clerk on or before July 1, 2009 (the "Closing "). Due to change in personnel and need to coordinate efforts with its Denmark office, Vestas is requesting that the date of Closing be extended to December 31, 2009. Such extension does not affect any other terms and conditions of the Agreement or Vestas' and City's obligation thereunder. The effect of the extension is delaying City's payments to Vestas until after December 31, 2009. See attached copy of Vestas' letter requesting the extension. FINANCIAL IMPACT None. 9 Vestas Towers America, Inc. Engdraget 20 6800 Varde Denmark June 8, 2009 City Manager City of Pueblo 1 City Hall Place Pueblo, CO 81003 Thomas E. Jagger City Attorney 503 North Main Street Suite 127 Pueblo, CO 81003 Re Agreement dated August 25, 2008 (the "Agreement ") between Pueblo, a municipal corporation (the "City ") and Vestas Towers America, Inc., a Delaware corporation authorized to do business in the State' of Colorado (the "Company ") Gentlemen: On behalf of the Company, this letter constitutes a request for an extension of the Company's compliance with requirements of Section 2(b) of the Agreement. In particular, on behalf of the Company, I request that °the "Closing," as defined in the Agreement, is extended from.July 1, 2009 to December 31, 2009. The Company has focused its efforts on completion of the construction of its facility in Pueblo and not on the administrative requirements set forth in Section 2(b). Given that there are new Company personnel in Pueblo and the need to coordinate efforts with the Denmark offices, the Company is requesting an extension of this deadline only. At the request of the City's Attorney after discussing this matter with him, the Company has authorized this letter and our attorneys, Senn Visciano, have drafted the proposed attached Amendment to the Agreement for your review. Please advise our counsel by June 15, 2009 if you have any comments or concerns. It would be greatly appreciated if the City Council could take final and favorable action on the Amendment at its June 22, 2009 City Council meeting. Thank you very much. cc: Joel Rosenstein, Esq. Vestas Towers America, Inc. By: Erik Iversen Vice President CADocuments and Settings\lockman\Local Settings \Temporary Internet Files\ Content .Outlook \YX06R6GG\Extension Letter.doc FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT ( "Amendment ") entered into as of June 2009, between Pueblo, a municipal corporation (the "City ") and Vestas Towers America, Inc., a Delaware corporation authorized to do business in the State of Colorado.(the "Company "). WHEREAS, the City and the Company entered into a certain Agreement dated August 28, 2008 (the "Original Agreement"), in connection with the construction of a wind turbine tower. manufacturing facility and business (the "Tower Operation ") within the City of Pueblo; Colorado; WHEREAS, the City Council approved such application. and, as described in the Original Agreement, agreed to make funds available to the Company subj ect to and upon the terms and conditions of the Original Agreement; and WHEREAS, pursuant to Section 2(b) of the Original Agreement, the Company is requesting' an ' extension to comply with certain administrative provisions of the Original Agreement while it is proceeding with construction of the Tower Operation to meet the "Employment Commitment Date" as defined in the Original 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 he acknowledged, City and Company agree as follows: 1. The deadline for the "Closing" as defined . .in Section 2(b) of the Original Agreement is extended from `July 1, 2009 to December 31, 2009. In all other respects the Original Agreement is unchanged. 2. The Original Agreement, as amended hereby is referred to as the Agreement. 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 the Agreement and may not be amended or modified except in writing signed. by City and Company.. Any waiver of any provision of the 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 I deemed to be a waiver of any preceding or subsequent breach of the same or any other provision of the Agreement. The failure of either party to enforce or seek enforcement of the terms of the Agreement following any breach shall not be construed as a waiver of such breach. 3. The Original Agreement,' as amended hereby, shall be construed in accordance with and be governed by the laws of the State of Colorado without regard to conflict of law principles. 4. The person signing this Amendment in the name of and on behalf of Company represents and warrants that he and Company have the requisite power and authority to enter into, �r execute, and deliver this Amendment, and that this Amendment is a valid and legally bindin obligation of Company enforceable against Company in accordance with its terms. The persons signing this Amendment in the name of and on behalf of Cit represent and warrant that they and the City have the requisite power and authorit to enter into, execute, and deliver this Amendment, and that this Amendment is a valid and le binding obligation of the Cit enforceable against the Cit in accordance with its terms. 5. This Amendment 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. Pueblo, a Municipal Corporation B President of the City Council' The foregoing instrument was acknowledged before me this22 da of June, 2009 b as President of the City Council and e- V , as Cit Clerk of Pueblo, a municipal corporation. -itness my han d and official seal. My 67/Z, -,commission exp ires: 1/ 20// E �A LA N&ap -Public y STAZ O o�arGt � ) COUNTY OF i : -2- F-j11K 1VCr5C14 V WC rrC51UCIll The foregoing instrument was acknowledged before me this day of June 2009, by Erik Iversen as Vice President of Vestas Towers America, Inc, a Delaware corporation. Witness my hand and official seal. My commission expires: [SEAL] Notary Public