HomeMy WebLinkAbout13284RESOLUTION NO. 13284
A RESOLUTION APPROVING AN AGREEMENT BETWEEN
PUEBLO, A MUNICIPAL CORPORATION AND THE PUEBLO
DEVELOPMENT FOUNDATION, A COLORADO NONPROFIT
CORPORATION, RELATING TO A JOB CREATING CAPITAL
IMPROVEMENT PROJECT, AUTHORIZING THE PRESIDENT
OF CITY COUNCIL TO EXECUTE SAID AGREEMENT AND
TRANSFERRING FOUR MILLION, SEVEN HUNDRED
THOUSAND DOLLARS ($4,700,000) FROM THE 1992-2016
SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS
FUND THEREFORE
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The City Council finds and determines that the expenditure of $4,700,000 for the job
creating capital improvement project with the Pueblo Development Foundation, a Colorado
nonprofit corporation (“PDF”) described in the attached Agreement, meets and complies with
the criteria and standards established by Section 14-4-85.5 of the Pueblo Municipal Code and
will create employment opportunities justifying the expenditure of public funds.
SECTION 2.
The Agreement dated July 27, 2015 between Pueblo, a municipal corporation and PDF,
relating to a job creating capital improvement project, 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 directed to affix the seal of the City thereto and to attest same.
SECTION 3.
Funds in the amount of $4,700,000 are hereby authorized to b e transferred, expended
and made available out of the 1992-2016 Sales and Use Tax Capital Improvement Projects
Fund for the sole purpose of the job creating capital improvement project authorized herein and
in the manner described in the attached Agreement. The funds hereby authorized to be
transferred and expended, shall be released, disbursed and paid by the Director of Finance as
specified in the attached Agreement.
SECTION 4.
The officers and staff of the City are directed and authorized to perform any and all acts
consistent with the intent of this Resolution and the attached Agreement which are necessary or
desirable to effectuate the transactions described therein.
SECTION 5.
This Resolution shall become effective immediately upon final passage.
INTRODUCED: July 27, 2015
BY: Robert Schilling
City Clerk’s Office Item # Q-3
Background Paper for Proposed
Resolution
COUNCIL MEETING DATE: July 27, 2015
TO: President Stephen G. Nawrocki and Members of City Council
CC: Sam Azad, City Manager
VIA: Gina Dutcher, City Clerk
FROM: Daniel C. Kogovsek, City Attorney
SUBJECT: A RESOLUTION APPROVING AN AGREEMENT BETWEEN PUEBLO, A
MUNICIPAL CORPORATION AND THE PUEBLO DEVELOPMENT
FOUNDATION, A COLORADO NONPROFIT CORPORATION, RELATING TO A
JOB CREATING CAPITAL IMPROVEMENT PROJECT, AUTHORIZING THE
PRESIDENT OF CITY COUNCIL TO EXECUTE SAID AGREEMENT AND
TRANSFERRING FOUR MILLION, SEVEN HUNDRED THOUSAND DOLLARS
($4,700,000) FROM THE 1992-2016 SALES AND USE TAX CAPITAL
IMPROVEMENT PROJECTS FUND THEREFORE
SUMMARY:
Attached is a Resolution approving and authorizing the President of City Council to sign an
Agreement with the Pueblo Development Foundation, a Colorado nonprofit corporation (“PDF”).
PREVIOUS COUNCIL ACTION:
None.
BACKGROUND:
PDF was formed in 1964 as a Colorado nonprofit corporation to promote economic
development within the City of Pueblo and the areas surrounding the City. For more than fifty
years, PDF has helped start up businesses and assisted existing businesses in relocating to
Pueblo County and thereby has acquired expertise in economic development.
The City has planned the development of three industrial parks, i.e. Pueblo Memorial Airport
Industrial Park; Minnequa Industrial Park and the St. Charles Industrial Park which are currently
available for economic development and the relocation of new businesses to the Pueblo area.
Section 14-4-85.5 of the Pueblo Municipal Code (“Criteria Ordinance”) provides that the City
Council may authorize the expenditure of monies from the 1992-2016 Sales and Use Tax
Capital Improvement Projects Fund (“Half-Cent Tax Fund”) for the acquisition of land; the
construction of so-called shell buildings and for infrastructure improvements within the industrial
parks.
FINANCIAL IMPLICATIONS:
In the attached Agreement, the City has agreed to transfer up to $4.7 million from the Half-Cent
Tax Fund to PDF, as follows:
Up to $3.1 million for the acquisition of land and construction of one so-called shell
building within one of the industrial parks. The shell building shall be approximately
45,000 square feet in size with approximately 40,000 square feet allocated to
manufacturing/warehouse space and approximately 5,000 square feet allocated for
office space. After construction of the shell building, PDF agrees to convey title to the
City.
Up to $100,000 for the acquisition of two development sites in the industrial parks. PDF
agrees to prepare the unimproved sites for subsequent development by the extension of
utility lines. After acquisition, PDF agrees to convey title to the two development sites to
the City.
Up to $1,500,000 for the extension of fiber optic conduit within the industrial parks.
Following construction and installation of the conduit, PDF agrees to convey title to the
City.
BOARD/COMMISSION RECOMMENDATION:
Not applicable to this Resolution.
STAKEHOLDER PROCESS:
Not applicable to this Resolution.
ALTERNATIVES:
If this Resolution is not approved, future development in the City’s three industrial parks will be
impaired.
RECOMMENDATION:
The Pueblo Economic Development Corporation recommends approval of this Resolution.
Attachments:
Proposed Resolution and Agreement
AGREEMENT
THIS AGREEMENT is entered into effective July 27, 2015, between the City of Pueblo,
a municipal corporation ("City") and the Pueblo Development Foundation, a Colorado nonprofit
corporation("Foundation"), WITNESSETH:
WHEREAS, Foundation was formed in 1964 as a Colorado nonprofit corporation to
promote economic development within the City of Pueblo and the area surrounding the City; and
WHEREAS, for more than fifty years, Foundation has assisted new businesses in
relocating to Pueblo County and has acquired expertise in economic development; and
WHEREAS, the City has planned the development of three industrial parks, i.e. Pueblo
Memorial Airport Industrial Park; Minnequa Industrial Park and the St. Charles Industrial Park
(collectively "Industrial Parks") which are currently available for economic development and the
relocation of new businesses to the Pueblo area; and
WHEREAS, Section 14-4-85.5 of the Pueblo Municipal Code ("Criteria Ordinance")
provides that the City Council may authorize the expenditure of monies from the 1992-2016
Sales and Use Tax Capital Improvement Projects Fund ("Half Cent Tax Fund") for the
acquisition of land and construction of so-called shell buildings and for infrastructure
improvements within the Industrial Parks; and
WHEREAS, entering into this Agreement with the Foundation will create employment
opportunities justifying the expenditure of public funds.
NOW, THEREFOR, in consideration of the foregoing and the mutual covenants herein
contained, the City and the Foundation agree as follows:
1. City hereby encumbers and appropriates monies from the Half Cent Tax Fund in
the amount of up to Four Million Seven Hundred Thousand Dollars ($4,700,000.00) (the "City
Funds") for use and expenditure by the Foundation, subject to and contingent upon the following
conditions and covenants which Foundation agrees to perform and comply with:
(a) Up to Three Million One Hundred Thousand Dollars ($3,100,000.00) for
the acquisition of land and construction of one (1) so-called shell building within one of
the Industrial Parks. The shell building shall be approximately 45,000 square feet in size
with approximately 40,000 square feet allocated to manufacturing/warehouse space and
approximately 5,000 square feet allocated for office space. After construction of the shell
building, Foundation agrees to convey title thereto to the City, free and clear of any liens
or encumbrances.
(b) Up to One Hundred Thousand Dollars ($100,000.00) for the site readiness
of two (2) development sites in the Industrial Parks. Foundation agrees to prepare the
unimproved sites for subsequent development by the extension of utility lines for
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subsequent utility services. After acquisition, Foundation agrees to convey title to the
two development sites to the City, free and clear of any liens or encumbrances.
(c) Up to One Million Five Hundred Thousand Dollars ($1,500,000.00) for
the extension of fiber optic conduit within the Industrial Parks. Following construction
and installation of the conduit, Foundation agrees to convey title of the conduit to the
City, free and clear of any liens and encumbrances. Foundation further agrees to
establish a repayment system in which businesses and entities which use the fiber in the
new conduit in the Industrial Parks, shall agree to make reasonable payments for same,
with said funds to be ultimately transferred to the City (after deducting reasonable
administrative costs) to reimburse the City for the conduit construction costs.
(d) Plans and Bidding:
(I) PDF shall cause plans and specifications to be prepared for the
work contemplated by this Agreement.. The plans and specifications shall be filed with the City,
and work shall not be performed until and unless the same are approved by City, which approval
shall not be unreasonably withheld.
(II) All construction contracts for the work contemplated by the
approved plans and specifications ("Construction Contracts") shall be awarded by competitive
bidding. PDF shall invite 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")
to submit bids. PDF may invite other qualified general contractors with their principal place of
business outside of Pueblo County, Colorado to submit bids. PDF shall assure that the same
scope of work to be bid is 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. PDF will use its best efforts in good faith to award the
construction contract to the lowest qualified bidder. A similar provision with respect to local
subcontractors and suppliers shall be included as part of the construction contract between PDF
and the general contractor who shall use its best efforts in good faith to engage local
subcontractors and suppliers for such construction. After award, PDF shall enter into one or more
Construction Contracts for the work and cause the construction to be expeditiously completed,
and PDF shall timely pay all contractors for work upon the Project. PDF shall not allow nor
suffer any mechanics liens to be filed upon the Project and in the event any such liens are filed,
shall cause same to be promptly removed.
(III) City Funds will be disbursed by City to PDF solely for the costs of
design and construction in accordance with the plans and specifications approved by City. In the
event the cost of the design and construction exceeds the amount specified in Subsections (a), (b)
and (c) of this Section 1, such costs shall be promptly paid by PDF and not by City.
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2. This Agreement shall terminate effective December 31, 2020. Any unspent City
Funds remaining as of that date, shall revert to the Half Cent Tax Fund. Foundation agrees that
during the term of this Agreement, Foundation will submit annual budgets, to be approved in
advance by the City Manager, for the expenditure of monies received from the Half Cent Tax
Fund, pursuant to this Agreement. Foundation further agrees that any changes of more than ten
(10%) in any annual budget must likewise be approved in advance by the City Manager.
3. Foundation 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 City Funds to Foundation 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,
and/or to seek such other remedies legally available to City, which remedies shall be cumulative.
4. (a) In no event shall City or Foundation, their officers, agents or employees be
liable to each other 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 the parties hereto or the failure or delay of the parties
hereto in the performance of any covenant or provision under this Agreement on their part to be
performed. In consideration of the other party entering into this Agreement, City and Foundation
hereby waive and discharge each other, their officers, agents and employees from all claims for
any and all such damages.
(b) Notwithstanding the above, in the event of breach of this Agreement by
the City or Foundation, the non-breaching party shall have the right to request specific
performance of this Agreement by the breaching party, but not damages.
5. In the event of any litigation arising under this Agreement, exclusive 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 party submits to the jurisdiction of
such District Court. To the extent allowed by law, each party waives its right to a jury trial.
6. 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. This Agreement may not be amended or modified except
in writing signed by City and Foundation . 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.
7. 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.
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8. Any notices hereunder shall be sufficiently given if given in writing personally or
mailed by first class, registered, or certified mail, postage prepaid, addressed:
(a) if to City, City Manager, City of Pueblo, 200 S. Main Street, Pueblo, CO
81003 with a copy to City Attorney, 1 City Hall Place, Third Floor, Pueblo, Colorado 81003, or
(b) if to the Foundation, President, 301 N. Main Street, Suite 210, Pueblo,
Colorado 81003.
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 8.
9. 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 Foundation may
not assign this Agreement or any interest herein without the express written consent of the City,
which consent may not be unreasonably withheld.
10. The persons signing this Agreement in the name of and on behalf of Foundation
represent and warrant that they and Foundation 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 Foundation enforceable against Foundation in accordance with its terms.
11. 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.
12. Neither party shall be, or hold itself out as, agent of the other or as joint venturers
or partners under this Agreement.
13. 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.
14. The provisions of this Agreement are for the exclusive benefit of the parties
hereto and their successors and permitted assigns, and no third party shall be a beneficiary, or
have any rights by virtue of this Agreement.
15. 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 effective the day and year first above written.
[ SEAL ] Pueblo, a Municipal Corporation
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Attest: •AxJ• B
City C - - i . e ity Council
[ SEAL] Pueblo Development Foundation
a Colorado nonprofit corporation
Attest: By
Name:
Name: 40z2,47-1_, ))70 0/
Title: Title: D2i'Si 64.177-
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