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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 1 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. 2 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. 3 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 4 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- 5