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HomeMy WebLinkAbout08984ORDINANCE NO. 8984 AN ORDINANCE APPROVING AN AMENDMENT TO RESOLUTION NO. 1 OF APPROVAL BY THE COLORADO ECONOMIC DEVELOPMENT COMMISSION CONCERNING THE DEDICATION OF SPECIFIED STATE SALES TAX INCREMENT REVENUE FOR THE “PUEBLO PROFESSIONAL BULL RIDERS UNIVERSITY AND HERITAGE OF HEROES PROJECT” AND APPROVING A RELEASE AND SETTLEMENT AGREEMENT AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAID DOCUMENTS BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Amendment to Resolution No.1 of approval by the Colorado Economic Development Commission concerning the dedication of specified state sales tax increment revenue for the “Pueblo Professional Bull Riders University and the Heritage of Heroes 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 hereby authorized and directed to execute said amendment for and on behalf of the City and the City Clerk is directed to affix the seal the City thereto and attest same. SECTION 2. The Release and Settlement Agreement, a copy of which is attached hereto, having been approved as to form by the City Attorney is hereby approved. The President of City Council is hereby authorized and directed to execute said agreement for and on behalf of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 3. The officers and staff of the City are directed and authorized to perform any and all acts consistent with the intent of this Ordinance and the attached amendment and attached agreement to effectuate the purposes of same. SECTION 4. This Ordinance shall become effective immediately upon final passage. INTRODUCED: March 14, 2016 BY: Ed Brown PASSED AND APPROVED: March 28, 2016 City Clerk’s Office Item # R-9 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: March 14, 2016 TO: President Stephen G. Nawrocki and Members of City Council VIA: Gina Dutcher, City Clerk FROM: Sam Azad, City Manager SUBJECT: AN ORDINANCE APPROVING AN AMENDMENT TO RESOLUTION NO. 1 OF APPROVAL BY THE COLORADO ECONOMIC DEVELOPMENT COMMISSION CONCERNING THE DEDICATION OF SPECIFIED STATE SALES TAX INCREMENT REVENUE FOR THE “PUEBLO PROFESSIONAL BULL RIDERS UNIVERSITY AND HERITAGE OF HEROES PROJECT” AND APPROVING A RELEASE AND SETTLEMENT AGREEMENT AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAID DOCUMENTS SUMMARY: Attached is an Ordinance which approves an amendment to Resolution No. 1 concerning the dedication of specified state sales tax increment revenue under the Colorado Regional Tourism Act (“RTA”). The Ordinance also approves a Release and Settlement Agreement between the City, the Pueblo Urban Renewal Authority (“PURA”) and the State of Colorado, acting through the Colorado Economic Development Commission (“Commission”). PREVIOUS COUNCIL ACTION: June 13, 2011: By Resolution, Council authorized the submission of an application to the Commission for funding of the Pueblo RTA Project December 10, 2012: By Resolution, Council authorized the President of City Council to sign Resolution No. 1 awarding state sales tax increment revenue for Pueblo’s RTA Project. BACKGROUND: The Colorado Economic Development Commission on November 8, 2012, adopted Resolution No. 1 which awarded state sales tax increment revenue to the City for Pueblo’s RTA Project. After adopting Resolution No. 1, the Commission learned that the percentage of state sales tax increment revenue dedicated to Pueblo’s RTA Project, namely 24.7% had been calculated in error. An amendment to Resolution No. 1 became necessary to correct the calculation error. Under the Amendment to Resolution No. 1, the percentage of state sales tax increment revenue that will be dedicated to the Pueblo RTA Project is as follows: Dates Percentage 05/01/2012 to 04/30/2022 24.7 05/01/2022 until the earlier of either date on which $35.7 million in 3.3 state sales tax increment revenue has been paid to the special fund under Section 3.E. below, or the expiration of the Financing Term. FINANCIAL IMPLICATIONS: The Pueblo Urban Renewal Authority, the City’s fiscal agent for the RTA Project, will receive $35.7 million in state sales tax increment revenue for Pueblo’s RTA Project. BOARD/COMMISSION RECOMMENDATION: Not applicable. STAKEHOLDER PROCESS: The City Manager and President of City Council collaborated with the Pueblo Urban Renewal Authority, the HARP Authority and the Pueblo Chamber of Commerce to negotiate a resolution of this RTA funding dispute with the State of Colorado. ALTERNATIVES: Failure to approve this Ordinance could result in litigation between the City of Pueblo and the State of Colorado concerning the RTA funding controversy. RECOMMENDATION: Adopt the Ordinance. Attachments: Proposed Ordinance; Amendment to Resolution No. 1 and Release and Settlement Agreement WHEREAS, Section 2.T. of Resolution No. 1 defined the "Percentage of State Sales Tax Increment Revenue" dedicated to the Project as "twenty four and seven-tenths percent (24.7%) of the portion of revenue derived from state sales tax revenue collected within the Regional Tourism Zone in excess of the Base Year Revenue."; and WHEREAS, Section 3.D. of Resolution No. 1 provided that the percentage of state sales tax increment revenue that will be dedicated to the project is 24.7%; and WHEREAS, after adopting Resolution No. 1, the Commission learned that the percentage of state sales tax increment revenue dedicated to the Project, namely 24.7%, had been calculated in error; and WHEREAS, amendments to Resolution No. 1 are therefore necessary to address the erroneous percentage of state sales tax increment revenue dedicated to the Project. NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION THAT: 1. Section 2.T. of Resolution No. 1 is hereby deleted and replaced with the following language: T. "Percentage of Sales Tax Increment Revenue" shall mean twenty four and seven-tenths of a percent (24.7%) of the portion of revenue derived from state sales tax revenue collected within the Regional Tourism Zone in excess of the Base Year Revenue until April 30, 2022, and thereafter shall mean three and three-tenths of a percent (3.3%) of the portion of revenue derived from state sales tax revenue collected within the Regional Tourism Zone in excess of the Base Year Revenue until the earlier of either the date on which $35.7 million in state sales tax increment revenue has been paid to the special fund under Section 3.E. below, or the expiration of the Financing Term. 2. Section 3.D. of Resolution No. 1 is hereby deleted and replaced with the following language: D. Percentage of Sales Tax Increment Revenue. The percentage of state sales tax increment revenue that will be dedicated to the Project is as follows: Dates Percentage 05/01/2012 to 04/30/2022 24.7 05/01/2022 until the earlier of either the date on 3.3 which$35.7 million in state sales tax increment revenue has been paid to the special fund under Section 3.E. below, or the expiration of the Financing Term. In no event shall the total cumulative dollar amount of state sales tax increment revenue paid to the special fund under Section 3.E. below exceed $35.7 million. Page 2 of 3 3. This Amendment shall become effective on the date signed by the Commission's Chair at the direction of a majority of the Commission's members. 4. Except as expressly modified by this Amendment, all of the remaining provisions of Resolution No. 1 shall remain in full force and effect. COLORADO ECONOMIC DEVELOPMENT COMMISSION j4pOXL, 21 2 2,IL, DATED By: WirAmen Chair ATTEST AND ACKNOWLEDGEMENT: CITY OF PUEBLO, COLORADO 3 - ..28 - 1 (7 DATED By: Stephen G.Nawrocki President, City Council PUEBLO URBAN RENWAL AUTHORITY dOr nig ././0 • DATE By• Gary . . Trujillo • air, Board of Co issioners Page 3 of 3 RELEASE AND SETTLEMENT AGREEMENT This Release and Settlement Agreement is being entered between the State of Colorado, acting by and through the Colorado Economic Development Commission; the City of Pueblo, Colorado; and the Pueblo Urban Renewal Authority (collectively, the "Parties"). RECITALS WHEREAS, pursuant to C.R.S. § 24-3-101, the Colorado Economic Development Commission (the "Commission") is an agency of the State of Colorado (the "State"); WHEREAS, the City of Pueblo, Colorado ("Pueblo" or the "City") is a municipal corporation and is authorized to act through its City Council; and WHEREAS, the Pueblo Urban Renewal Authority ("PURA") is a body corporate and politic of the State of Colorado established pursuant to Part 1 of Article 25 of Title 31, C.R.S., and is authorized to act through its Board of Commissioners; and WHEREAS, the Commission is responsible for reviewing and approving local government applications for awards of State sales tax increment revenue to support regional tourism projects under the Colorado Regional Tourism Act, Part 3 of Article 46, Title 24, C.R.S. (the "Act"); and WHEREAS, by application dated June 30, 2011, Pueblo sought a State sales tax increment revenue award under the Act to support a regional tourism project generally referred to as the "Pueblo Professional Bull Riders University and Heritage of Heroes Project" (the "Project"); and WHEREAS, after determining that the Project materially met each of the criteria set forth in C.R.S. § 24-46-304 of the Act, the Commission voted to approve an award of State sales tax increment revenue for the Project on May 18, 2012; and WHEREAS, C.R.S. §§ 24-46-305(3) and (4) of the Act required that, upon approval of an application submitted by a local government pursuant to the Act, the Commission shall adopt a resolution specifying: (a) the local government that has been approved to undertake a regional tourism project; (b) the area of the regional tourism zone; (c) whether the Commission has authorized the creation of a regional tourism authority; (d) the percentage of State sales tax increment revenue that will be dedicated to the regional tourism project; and (e) any conditions of approval imposed by the Commission and incorporated in writing into the Commission's resolution of approval; and WHEREAS, the Commission adopted Resolution No. 1 governing the Project on November 8, 2012 ("Resolution No. 1"); and WHEREAS, Section 2.T. of Resolution No. 1 defined the "Percentage of State Sales Tax Increment Revenue" dedicated to the Project as "twenty four and seven-tenths percent (24.7%) of the portion of revenue derived from State sales tax revenue collected within the Regional Tourism Zone in excess of the Base Year Revenue."; and WHEREAS, Section 3.E.i. of Resolution No. 1 directed the Colorado Department of Revenue to pay any revenue generated by the "Percentage of State Sales Tax Increment Revenue" to a special fund established by PURA as the "Financing Entity" for the Project, and authorized PURA to "utilize such sales tax revenue solely to finance Eligible Costs incurred for the purpose of constructing the Eligible Improvements and implementing the Project."; and WHEREAS, after adopting Resolution No. 1, the Commission learned that the percentage of State sales tax increment revenue dedicated to the Project, namely 24.7%, had been calculated in error; and WHEREAS, amendments to Resolution No. 1 are therefore necessary to address the erroneous percentage of State sales tax increment revenue dedicated to the Project; and WHEREAS, Pueblo and/or PURA may in the future assert administrative, federal and/or State causes of action, at law or in equity, related to their respective interests under Resolution No. 1 and/or certain future amendments thereto; and WHEREAS, the Parties wish to avoid the expense and vagaries of litigation, and are willing to settle any claims arising out of or related to Resolution No. 1 and/or certain future amendments thereto on the terms set forth in this Release and Settlement Agreement without admissions of liability or wrongdoing. IN CONSIDERATION of the mutual and unilateral covenants, obligations, promises, and warranties contained within this Release and Settlement Agreement, the Parties agree as follows: OBLIGATIONS OF PUEBLO AND PURA 1. RELEASE. Pueblo and PURA, including the respective employees, successors, agents, and assigns of each, each hereby releases the State of Colorado, including, without limitation, the Commission, the Colorado Office of Economic Development& International Trade, the Governor's Office, and Colorado Risk Management, and all current and former employees, officials, agents and attorneys of each of those entities from any and all claims, causes of action, liabilities, expenses and/or damages which Pueblo and PURA may have or assert against the State of Colorado, the Commission, the Colorado Office of Economic Development& International Trade, the Governor's Office, and Colorado Risk Management, or any current or former employees, officials, agents and attorneys of each of those entities as a result of any acts by those entities or by any current or former employees, agents or attorneys of those entities which occurred prior to the effective Page 2 of 7 date of this Release and Settlement Agreement, or omissions by those entities or any current or former employees, officials, agents or attorneys of those entities to perform acts which should have been performed prior to the effective date of this Release and Settlement Agreement, including, without limiting the generality of the foregoing, any act or omission arising out of, or relating to Resolution No. 1 and/or the Amendment to Resolution No. 1, which is attached hereto as Exhibit A. Specifically, but not by way of limitation, this Release and Settlement Agreement includes the following claims: ® Any claim under C.R.S. ® Any claim arising under ® Any claim arising under §§ 24-46-301, through any State statute, such as any State rule of civil -310. C.R.S. §§ 24-4-101, procedure, such as through -108. C.R.C.P. 106. ® Any claim seeking ® Any claim in tort, ® Any other claim of any declaratory, injunctive, or contract, or for violation type whatsoever, arising other equitable relief. of the covenant of good out of federal law, the faith and fair dealing. common law of any State, any State statute, local law, or administrative procedure or rule. 2. COVENANT NOT TO SUE. Pueblo and PURA each further agrees and covenants that it has not and will not sue, or assert any federal, State or administrative cause of action, at law or in equity, whether before a court of law or an administrative agency, against the State of Colorado, the Commission, the Colorado Office of Economic Development & International Trade, the Governor's Office, and Colorado Risk Management, or any current or former employee, official, agent, or attorney of each of those entities for any claims, causes of action, liabilities, expenses and/or damages arising out of any acts by any of them which occurred prior to the effective date of this Release and Settlement Agreement, or omissions by any of them to perform acts which should have been performed prior to the effective date of this Release and Settlement Agreement, including, without limiting the generality of the foregoing, any act or omission arising out of, or related to Resolution No. 1 and/or the Amendment to Resolution No. 1, which is attached hereto as Exhibit A. 3. SOLE OWNER OF CLAIMS. Pueblo and PURA each represents that it is the sole owner of all claims purported to be released hereby, and that it has not assigned or transferred any claim against the State of Colorado to any third party. Pueblo and PURA each further represents and warrants that no third party is subrogated to its interest in claims released hereby, including but not limited to insurers, parent companies or subsidiaries subrogated by reason of payment of costs or expenses, or, if any third party has been subrogated to its interest, the interest of any subrogee has been settled, compromised and extinguished. Pueblo and PURA each agrees to defend and indemnify all persons and Page 3 of 7 entities released hereby and hold them harmless against the claims of any assignee or subrogee to claims released hereby that may hereafter be asserted. 4. OPEN RECORDS ACT AND OTHER RELEASES PROVIDED BY LAW. Pueblo and PURA each understands and agrees that upon a valid request made pursuant to applicable public disclosure laws, including, without limitation, the provisions of Section 24-72-101, et seq., C.R.S. (Open Records Act), as presently or subsequently amended, the State of Colorado is obligated to provide the requesting person a copy of this Release and Settlement Agreement. Pueblo and PURA each agrees that it will not hold the State of Colorado, the Commission, the Colorado Office of Economic Development & International Trade, the Governor's Office, and Colorado Risk Management, or their administrators, officers, agents or employees liable for any information released in compliance with applicable law. 5. ATTEST AND ACKNOWLEDGMENT OF AMENDMENT TO RESOLUTION NO. 1. After the respective authorized signatories of the State of Colorado have executed this Release and Settlement Agreement and the Commission has adopted the Amendment to Resolution No. 1, which is attached hereto as Exhibit A, Pueblo and PURA each will execute the "ATTEST AND ACKNOWLEDGEMENT" portions of the Amendment to Resolution No. 1. OBLIGATIONS OF THE STATE OF COLORADO 6. ADOPTION OF AMENDMENT TO RESOLUTION NO. 1. After the respective authorized signatories of Pueblo and PURA each has executed this Release and Settlement Agreement, the Commission will adopt the Amendment to Resolution No. 1, which is attached hereto as Exhibit A. 7. NO ADMISSION OF LIABILITY. The State of Colorado, including, without limitation, the Commission, the Colorado Office of Economic Development & International Trade, the Governor's Office, and Colorado Risk Management, by entering into this Release and Settlement Agreement, does not admit to any impropriety, wrongdoing or liability of any kind whatsoever, but is entering into this Release and Settlement Agreement in compromise of any claims, causes of action, liabilities, expenses and/or damages arising out of any acts which occurred prior to the effective date of this Release and Settlement Agreement, or omissions which should have been performed prior to the effective date of this Release and Settlement Agreement, including, without limiting the generality of the foregoing, any act or omission arising out of, or related to Resolution No. 1 and/or the Amendment to Resolution No. 1, which is attached hereto as Exhibit A. The Parties agree that this Release and Settlement Agreement does not constitute evidence of, or an admission of any liability, omission or wrongdoing of any kind by the State of Colorado, or any employees, officials, agents or attorneys of the State of Colorado. This Release and Settlement Agreement shall not be offered or received into evidence or otherwise filed or lodged in any proceeding against any party except as may be necessary to prove and enforce its terms. Page 4 of 7 GENERAL PROVISIONS 8. INTEGRATION. The Parties understand, acknowledge and agree that this Release and Settlement Agreement constitutes the entire agreement of the Parties regarding the subject matter and transactions referred to herein. The Parties understand, acknowledge and agree that the terms of this Release and Settlement Agreement are contractual in nature and not mere recitals. As such, the Parties understand, acknowledge and agree that this Release and Settlement Agreement is fully integrated and supersedes all previous oral or written agreements of the Parties. 9. BINDING EFFECT. This Release and Settlement Agreement shall inure to the benefit of, and be binding upon, the successors, assigns and heirs of the Parties. 10. GOVERNING LAW. This Release and Settlement Agreement is entered into in Colorado, and shall be governed by the laws of the State of Colorado. 11. HEADINGS. The headings used in this Release and Settlement Agreement are for the convenience of the Parties only. As such, these headings shall not have any legal effect whatsoever or, in any other way alter or modify the meaning or interpretation of this Release and Settlement Agreement. 12. ADDITIONAL ASSURANCES. This Release and Settlement Agreement is intended to be self-operative. Notwithstanding the foregoing, the Parties agree that, at the reasonable request of the other party, they shall execute any further documents or instruments reasonably necessary to effectuate the transactions contemplated by this Release and Settlement Agreement, including specifically the Amendment to Resolution No. 1 attached hereto as Exhibit A. 13. SEVERABILITY. If any provision of this Release and Settlement Agreement should be declared to be unenforceable, then the remainder of this Release and Settlement Agreement shall continue to be binding upon the Parties. 14. COSTS. The Parties agree that each party shall bear its own costs and attorney fees, if any. 15. EXECUTION IN COUNTERPARTS OR BY FACSIMILE. This Release and Settlement Agreement may be executed in counterparts or with signatures obtained via facsimile or email transmission, each of which shall have full force and effect upon execution by all Parties to this Release and Settlement Agreement. 16. VALIDITY/EFFECTIVE DATE. This Release and Settlement Agreement shall not be deemed valid until it has been signed by the Commission's Chair at the direction of a majority of the Commission's members. The effective date of this Release and Settlement Agreement is the date that it is signed by the Commission's Chair at the direction of a majority of the Commission's members. Page 5 of 7 17. WARRANTIES. The Parties expressly warrant that they have carefully and completely read the terms of this Release and Settlement Agreement. The Parties expressly warrant that they have had the opportunity to consult with counsel prior to executing this Release and Settlement Agreement, that they fully understand the terms of this Release and Settlement Agreement, and that they enter into this agreement knowingly and voluntarily, and without coercion, duress or undue influence. The Parties expressly warrant that their respective signatories each has full authority to act in signing this Release and Settlement Agreement. The Parties expressly acknowledge that they believe the terms of this Release and Settlement Agreement are appropriate to reach a full and final settlement of this matter. The Parties expressly understand and agree that the signing of this Release and Settlement Agreement shall be forever binding, and no rescission, modification or release of the Parties from the terms of this Release and Settlement Agreement will be made for mistake or any other reasons. The Parties represent that they are legally competent to execute this Release and Settlement Agreement and accept full responsibility and assume the risk of any mistake of fact as to any damages, losses, or injuries, whether disclosed or undisclosed, sustained as a result of any act or omission arising out of, or related to Resolution No. 1 and/or the Amendment to Resolution No. 1, which is attached hereto as Exhibit A, any claim brought or which could have been brought, or any other matter between the parties occurring up to the effective date of this Release and Settlement Agreement. The Parties further warrant and acknowledge that no promise or inducement has been offered except as set forth herein and that this Release and Settlement Agreement was executed by them without reliance upon any statement or representation by the persons or Parties released or their representatives concerning the nature or extent of any damages or any legal liability therefore. The Parties acknowledge that entering into this Release and Settlement Agreement is not an admission by any party of any wrongful or improper actions, but rather reflects the Parties' mutual desire to resolve this matter amicably and without additional expense or litigation. 18. AMENDMENT. This Release and Settlement Agreement may not be amended except in a writing setting forth such amendment and executed by all Parties. 19. ENFORCEABILITY. The Parties expressly acknowledge that this Release and Settlement Agreement shall be governed by the laws of the State of Colorado and shall be enforceable in accordance with its terms only in the state courts of Colorado. CAUTION: THIS IS A RELEASE. READ BEFORE SIGNING. WHEREFORE,the Parties agree to and do accept the terms of this Release and Settlement Agreement. Page 6 of 7 CITY OF PUEBLO, COLORADO �►1 3 -22 ' ' ( : -%� DATED By: Stephen G. Nawrocki President, City Council ATTEST: City erk PUEBLO URBAN RENWAL AUTHORITY � / r 3.3c9.16 . DATED :y: ' ary . Truji o C,air, Board of Commissioners ATTEST: Board i etary COLORADO ECONOMIC DEVELOPMENT COMMISSION Aplin... 21 2-.01 4, air/ DATED By: - , hair Page 7 of 7