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ORDINANCE NO. 9712
AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE
CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION
AND THE PUEBLO DEVELOPMENT FOUNDATION, A
COLORADO NONPROFIT CORPORATION, RELATING TO A
JOB CREATING CAPITAL IMPROVEMENT PROJECT,
AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT
AND TRANSFERRING FIVE MILLION DOLLARS ($5,000,000)
FROM THE 1992-2021 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 Five Million Dollars
($5,000,000) 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 June 8, 2020 between the City of Pueblo, a Colorado 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
Mayor 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 $5,000,000 are hereby authorized to be transferred, expended
and made available out of the 1992-2021 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 authorized and directed to perform any and all acts
consistent with this Ordinance and the attached Agreement which are necessary or desirable to
effectuate the transactions described therein.
SECTION 5.
This Ordinance shall become effective on the date of final action by the Mayor and City
Council.
Action by City Council:
Introduced and initial adoption of Ordinance by City Council on May 26, 2020
Final adoption of Ordinance by City Council on June 8, 2020 .
President of City Council
Action by the Mayor:
☒ Approved on June 10, 2020 .
☐ Disapproved on based on the following objections:
Mayor
Action by City Council After Disapproval by the Mayor:
☐ Council did not act to override the Mayor's veto.
☐ Ordinance re-adopted on a vote of , on
☐ Council action on __________________failed to override the Mayor’s veto.
President of City Council
ATTEST
City Clerk
City Clerk’s Office Item # R-3
Background Paper for Proposed
Ordinance
COUNCIL MEETING DATE: May 26, 2020
TO: President Dennis E. Flores and Members of City Council
CC: Mayor Nicholas A. Gradisar
VIA: Brenda Armijo, City Clerk
FROM: Daniel C. Kogovsek, City Attorney
SUBJECT: AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF
PUEBLO, A COLORADO MUNICIPAL CORPORATION AND THE PUEBLO
DEVELOPMENT FOUNDATION, A COLORADO NONPROFIT CORPORATION,
RELATING TO A JOB CREATING CAPITAL IMPROVEMENT PROJECT,
AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT AND
TRANSFERRING FIVE MILLION DOLLARS ($5,000,000) FROM THE 1992-2021
SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS FUND
THEREFORE
SUMMARY:
Attached is an Ordinance approving and authorizing the Mayor to sign an Agreement with the
Pueblo Development Foundation, a Colorado nonprofit corporation (“PDF”).
PREVIOUS COUNCIL ACTION:
City Council approved a similar agreement with PDF on July 27, 2015 by Resolution No. 13284.
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 1992-2021 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 $5 million from the Half-Cent Tax
Fund to PDF 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 40,500 square feet allocated to manufacturing/warehouse space and
approximately 4,500 square feet allocated for office space. After construction of the shell building,
PDF agrees to convey title to the City.
BOARD/COMMISSION RECOMMENDATION:
Not applicable to this Ordinance.
STAKEHOLDER PROCESS:
Not applicable to this Ordinance.
ALTERNATIVES:
If this Ordinance 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 Ordinance.
Attachments: Proposed Ordinance and Agreement
AGREEMENT
THIS AGREEMENT is entered into effective June 8, 2020, between the City of
Pueblo, a Colorado 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-
2021 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, THEREFORE, 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 Five Million Dollars ($5,000,000.00) (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 Five Million Dollars ($5,000,000.00) for the acquisition of land
and construction of one (1) so-called shell building within the Minnequa Industrial
Park. The shell building shall be approximately 45,000 square feet in size with
approximately 40,500 square feet allocated to manufacturing/warehouse space
and approximately 4,500 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.
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(b) 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
the 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 bidis 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 the same to be promptly removed.
(III) City funds will be disbursed by City to PDF solely for the costs
of land acquisition and thereafter solely for the costs of design and construction in
accordance with the plans and specifications approved by City. In the event the costs of
land acquisition, design and construction exceeds the amount specified in Subsections
(a) and (b) of this Section 1, such costs shall be promptly paid by PDF and not by City.
2. This Agreement shall terminate effective December 31, 2025. 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 Mayor, 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 Mayor.
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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
covenantor 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, Mayor, City of Pueblo, 1 City Hall Place, Second Floor,
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 St., 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 by physical
or electronic signatures, and each such counterpart shall be deemed for all purposes to
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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.
[S E A L] City of Pueblo
a Colorado Municipal Corporation
Attest: jt CBy: J74.4a,Q✓
City Clerk Mayor
[S E A L] Pueblo Development Foundation
A Colorado nonprofit corporation
Attest: //_ , / ..// / By: 7
Name/f 4,/J-A • &a /Iarot ame: �'co i L .PPS
Title: Title:
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