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HomeMy WebLinkAbout09880ORDINANCE NO. 9880 AN ORDINANCE APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A COOPERATION AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND THE PUEBLO URBAN RENEWAL AUTHORITY, A BODY CORPORATE AND POLITIC OF THE STATE OF COLORADO, TO FACILITATE REHABILITATION OF THE HOLMES HARDWARE PROPERTY IN ACCORDANCE WITH THE URBAN RENEWAL PLAN FOR THE UNION AVENUE URBAN RENEWAL PROJECT AREA BY THE PAYMENT OF SALES TAX INCREMENT REVENUE TO SAID AUTHORITY FOR SUCH PURPOSES BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Cooperation Agreement (“Agreement”) dated February 22, 2021 between the City of Pueblo, a Colorado Municipal Corporation and the Pueblo Urban Renewal Authority, a Body Corporate and Politic of the State of Colorado, relating to the Union Avenue Urban Renewal 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 said Agreement in the name of the City and the City Clerk is authorized to affix the seal of the City thereto and attest same. SECTION 2. The officers and staff of the City are authorized to perform any and all acts consistent with this Ordinance and the attached Agreement, which are necessary or appropriate to implement the policies and transactions described therein. SECTION 3. 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 February 8, 2021. Final adoption of Ordinance by City Council on February 22, 2021. President of City Council Action by the Mayor: ☒ Approved on February 24, 2021 . □ 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-2 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: February 8, 2021 TO: President Lawrence W. Atencio 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 AND AUTHORIZING THE MAYOR TO EXECUTE A COOPERATION AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND THE PUEBLO URBAN RENEWAL AUTHORITY, A BODY CORPORATE AND POLITIC OF THE STATE OF COLORADO, TO FACILITATE REHABILITATION OF THE HOLMES HARDWARE PROPERTY IN ACCORDANCE WITH THE URBAN RENEWAL PLAN FOR THE UNION AVENUE URBAN RENEWAL PROJECT AREA BY THE PAYMENT OF SALES TAX INCREMENT REVENUE TO SAID AUTHORITY FOR SUCH PURPOSES SUMMARY: This Ordinance approves and authorizes the Mayor to sign a Cooperation Agreement with the Pueblo Urban Renewal Authority (the “Authority”) which approves payments of sales tax increment revenue to the Authority for seven (7) years, for the purpose of rehabilitating the Holmes Hardware Property located at 400 S. Union Avenue, Pueblo, CO 81003. PREVIOUS COUNCIL ACTION: By Ordinance No. 8093 dated October 26, 2009, the Pueblo City Council approved the Urban Renewal Plan for the Union Avenue Project Area (the “Plan”), which Plan is being carried out by the Authority. On February 8, 2021, the City Council approved a minor modification to the Plan to permit allocation of a portion of the City’s sales tax for approved projects within the Union Avenue Project Area. BACKGROUND: The Authority has received a proposal from Full Plate Management, LLC (the “Developer”) for redevelopment and rehabilitation of the Holmes Hardware Property (the “Holmes Hardware Rehabilitation”). This Ordinance approves and authorizes the Mayor to sign the attached Cooperation Agreement to implement the Holmes Hardware Rehabilitation. FINANCIAL IMPLICATIONS: Under the attached Cooperation Agreement, the City pledges to pay to the Authority the City sales tax increment revenue defined as 100% of the City’s three per cent (3%) municipal sales tax revenues collected from the restaurants and retail businesses located on the Holmes Hardware Property. This sales tax pledge shall begin with the first transactions subject to such sales taxes after completion of construction and the issuance of Certificates of Occupancy to such restaurants and retail businesses by the Pueblo Regional Building Authority and continuing for a period of seven (7) years thereafter. Available City sales tax revenue does not include any sales or use taxes collected prior to completion of construction of all improvements and the issuance of appropriate Certificates of Occupancy. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: City and Authority Staff have met with the Developer to begin the process for eventual rehabilitation of the Holmes Hardware Property. ALTERNATIVES: Denial of this Ordinance will result in the Holmes Hardware Property not being redeveloped. RECOMMENDATION: The Mayor recommends approval of the Ordinance. Attachments: Proposed Ordinance; Cooperation Agreement COOPERATION AGREEMENT (Rehabilitation of Holmes Hardware Property) 1.0 PARTIES. This Cooperation Agreement ("Agreement") is made and entered into as of February 22,2021,by and between the CITY OF PUEBLO,a home-rule municipality and political subdivision of the State of Colorado (the "City") and the PUEBLO URBAN RENEWAL AUTHORITY, a body corporate and politic of the State of Colorado (the "Authority"). City and Authority are sometimes referred to herein collectively as the "Parties" and individually as a "Party". 2.0 RECITALS. The following recitals are incorporated in and made a part of this Agreement. 2.1 The Plan. On October 26, 2009, pursuant to Ordinance No. 8093, as modified on February 8, 2021, by Ordinance No. ?1'1L the City Council of the City approved the Urban Renewal Plan for the Union Avenue Urban Renewal Project Area(the"Plan"),which Plan is being carried out by the Authority in cooperation with the City and in furtherance of the objectives of the Colorado Urban Renewal Law (the "Act"). The Plan, as modified, permits the allocation of municipal sales tax increment revenue to the Authority for specific development projects subject to the written agreement of the City. 2.2. Holmes Hardware Property. In furtherance of and implementation of the Plan,the Authority has received a proposal from Full Plate Management, LLC (the "Developer") for redevelopment and rehabilitation of certain property in the Plan area known as the Holmes Hardware Property (the "Holmes Hardware Rehabilitation"). The Holmes Hardware Property is described and depicted in Exhibit A, attached to and made a part of this Cooperation Agreement. The City has determined it is in the public interest and furtherance of the objectives of the Act and the Plan to allocate the Available City Sales Tax Revenue (defined in Section 5.0, below) to the Authority to assist in the Holmes Hardware Rehabilitation. 3.0 AGREEMENT. In consideration of the mutual covenants, agreements, and promises in this Agreement and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as set forth in this Agreement. 4.0 CONDITION PRECEDENT. This Agreement is contingent upon the ability of the Developer to finance and complete completion of improvements pursuant to an agreement with the Authority so that the first of such the areas of such improvements or elsewhere on the Holmes Hardware Rehabilitation that produce municipal sales taxes may open and operate for their intended use within a time determined by the Authority to be reasonable under the circumstances ("Completion of Construction"). If the Authority and the Developer are unable to reach such agreement as determined by the Authority or if such agreement is terminated for any reason prior to Completion of Construction,the allocation of Available Sale Tax Revenue by the City shall also terminate automatically, and this Cooperation Agreement shall be null and void. 5.0 ALLOCATION OF AVAILABLE CITY SALES TAX REVENUE. Subject to the requirements of Section 4.0, the City hereby allocates and irrevocably pledges to pay to the Authority the Available City Sales Tax Revenue defined as 100%of the City's three per cent(3%) municipal sales tax revenues collected from the restaurants and retail businesses located on the Holmes Hardware Property. This sales tax pledge shall begin with the first transactions subject to such sales taxes after Completion of Construction and the issuance of Certificates of Occupancy to such restaurants and retail businesses by the Pueblo Regional Building Authority and continuing for a period of seven (7)years thereafter(the"Term"). Available City Sales Tax Revenue does not include any sales or use taxes collected prior to Completion of Construction of all improvements and the issuance of appropriate Certificates of Occupancy. 5.1 Pledge and Payment. Creation, perfection, enforcement and priority of the pledge of the Available City Sales Tax Revenue shall be governed by § 11-57-208, C.R.S., and this Agreement. Payment of Available City Sales Tax Revenue shall be made by the 20th of each month during the Term commencing on the first full month after collection of such revenue. 5.2 Books and Accounts. During the Term, the Parties will keep, or cause to be kept, proper and current books and accounts in which complete and accurate entries are made as follows: (a) by the City of amounts of municipal sales taxes collected from the Holmes Hardware Property after Completion of Construction and the amounts of Available City Sales Tax Revenue paid to the Authority; and (b) by the Authority of amounts of Available Sales Tax Revenue received by the Authority and paid to or on behalf of the Developer pursuant to an agreement approved by the City in accordance with Section 6.0, and such other calculations, allocations and payments reasonably required by this Agreement. 5.3 Inspection of Records. All books, records and reports (except those required by applicable law to be kept confidential) in the possession of the Parties required by Section 5.2, shall at all reasonable times be open to inspection by such accountants or other agents as each Party may from time to time designate. 6.0 RESPONSIBILITY OF THE AUTHORITY. The Authority will be responsible for entering into one or more agreements with the Developer that comply with the requirements of the Act, the Plan, and this Agreement, including covenants to finance and commence and complete construction of all required improvements in accordance with all applicable City requirements within times deemed reasonable by the Authority. Any such agreement between the Authority and the Developer shall be subject to the approval of the City Attorney for compliance with this Agreement, which approval shall not be unreasonably delayed, conditioned, withheld, or denied. 7.0 MISCELLANEOUS PROVISIONS. The following provisions apply to this Agreement. 7.1 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed to have been sufficiently given for all purposes if personally served or if sent by certified mail or registered mail, postage and fees prepaid,addressed to the Party to whom such 2 notice is to be given at the address set forth below: To the City: Mayor, City of Pueblo, 1 City Hall Place, 2nd Floor, Pueblo, CO 81003; with a copy to: City Attorney, l City Hall Place, 3rd Floor, Pueblo, CO 81003; To the Authority: Executive Director, Pueblo Urban Renewal Authority, 115 E. Riverwalk, Suite 410, Pueblo, CO 81003 with a copy to: Paul Benedetti, 2710 Iliff Street, Boulder, CO 80305; or to such other address or person as any party may from time to time specify in a writing delivered to the other party in the manner provided in this paragraph. Any notice shall be deemed delivered on the day on which personal delivery is effected or three (3) days after deposit in the mail in the case of registered or certified mail, and one (1) business day after deposit in the case of overnight courier. 7.2 Delays. Any delays in or failure of performance by any Party of its obligations under this Agreement shall be excused if such delays or failure are a result of acts of God, fires, floods, strikes, labor disputes, accidents, regulations or order of civil or military authorities, shortages of labor or materials, or other causes, similar or dissimilar, that are beyond the control of such Party. 7.3 Default. Time is of the essence, subject to Section 7.2, above. Provided this Cooperation Agreement has not been terminated pursuant to Section 4.0, the sole remedy for default under this Agreement shall be to compel payment of Available City Sales Tax Revenue by the equitable remedies of specific performance or injunction. The Parties hereby waive any rights to money damages. 7.4 Section Captions. The captions of the Sections are set forth only for the convenience and reference of the Parties and are not intended in any way to define, limit, or describe the scope or intent of this Agreement. 7.5 Additional Documents or Action. The Parties agree to execute any additional documents or take any additional action that is reasonably necessary to carry out this Agreement. 7.6 Integration and Amendment. This Agreement represents the entire agreement between the Parties with respect to the subject matter and there are no oral or collateral agreements or understandings with respect to the subject matter. This Agreement may be amended only by an instrument in writing signed by the Parties. If any other provision of this Agreement is held invalid or unenforceable, no other provision hereof shall be affected by such holding, and all of the remaining provisions of this Agreement shall continue in full force and effect. 7.7 Waiver of Breach. A waiver by any Party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either Party. 3 7.8 Governing Law; Attorney Fees; Venue. This Agreement shall be governed by the laws of the State of Colorado. In the event of any litigation arising under this Agreement, the court shall award to the prevailing party its costs together with all reasonable and out-of-pocket expenses of any kind relating to the litigation including, but not limited to, reasonable attorney fees. 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 full extent permitted by applicable law, each Party hereby waives its right to a trial by jury. 7.9 Binding Effect. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective legal representatives, successors, heirs, and assigns, provided that nothing in this Section shall be construed to permit the assignment of this Agreement. 7.10 Execution in Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute but one and the same instrument. 7.11 No Third-party Beneficiaries. This Agreement is intended to describe the rights and responsibilities only as to the Parties hereto. This Agreement is not intended and shall not be deemed to confer any rights on any person or entity not named as a Party hereto. 7.12 No Presumption. The Parties to this Agreement and their attorneys have had a full opportunity to review and participate in the drafting of the final form of this Agreement. Accordingly, this Agreement shall be construed without regard to any presumption or other rule of construction against the Party causing the Agreement to be drafted. 7.13 Severability. If any provision of this Agreement as applied to any Party or to any circumstance shall be adjudged by a court to be void or unenforceable, the same shall in no way affect any other provision of this Agreement, the application of any such provision in any other circumstances or the validity, or enforceability of the Agreement as a whole. 7.14 Minor Changes. The Parties executing this Agreement are authorized to make non-substantive corrections to this Agreement and attached exhibits, if any,as the Parties mutually consider necessary. 7.15 Good Faith of Parties. In the performance of this Agreement or in considering any requested approval, acceptance, or extension of time, the Parties agree that each will act in good faith and will not act unreasonably, arbitrarily, capriciously, or unreasonably withhold, condition, or delay any approval, acceptance, or extension of time required or requested pursuant to this Agreement. 7.16 Parties Not Partners. Notwithstanding any language in this Agreement or any other agreement, representation, or warranty to the contrary, the Parties shall not be deemed to be 4 partners or joint venturers, and no Party shall be deemed to be responsible for any debt or liability of any other Party. 7.17 No Waiver of Immunity. Nothing contained in this Agreement constitutes a waiver of sovereign immunity or governmental immunity by the Parties under applicable state law. IN WITNESS WHEREOF, this Agreement is executed by the Parties hereto in their respective names as of the date first above written. CITY OF PUEBLO, COLORADO A COLORADO MUNICIPAL CORPORATION • ATTEST: By: '1ka ' r. Nicholas A. Gra r, Mayor '8-CP,—rld-a ("if- City Clerk THE PUEBLO U► :AN 11 4WAL • UTHORITY ATTEST: ..411111."- By: i1111 "By: some Chai Secrete r 5