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HomeMy WebLinkAbout06381ORDINANCE NO. 6381 AN ORDINANCE ESTABLISHING CRITERIA, STANDARDS, RULES AND REGULATIONS FOR THE APPROPRIATION AND EXPENDITURE OF FUNDS ON DEPOSIT IN THE 1992 -2001 SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS FUND AND REPEALING ORDINANCE NO. 5742 WHEREAS, the people of Pueblo by Ordinance Nos. 5668 and 5978 continued the three and one -half percent sales and use tax rate through December 31, 2001, and . WHEREAS, the people of Pueblo by Ordinance Nos. 5668 and 5978 dedicated the revenues from a one -half percent sales and use tax rate for job - creating capital improvement projects within the City and the Pueblo Memorial Airport and created a special fund to be known as the 1992 -2001 Sales and Use Tax Capital Improvements Project Fund for the deposit of such revenue, and WHEREAS, the people of Pueblo by Ordinance Nos. 5668 and 5978 authorized and directed the City Council to establish by Ordinance the criteria, standards, rules and regulations for the appropriation and expenditure of such revenues for job creating capital improvement projects and directed that none of the revenues shall be appropriated or .expended except in conformity with such criteria, standards, rules and regulations. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. For purposes of this Ordinance the following terms shall have the following meanings: (a) 'Primary job" means a full -time position in private sector employment by manufacturing, business, commercial or service industries producing, assembling or distributing products or providing services primarily or ultimately for sale, consumption or use outside of the City and County of Pueblo, Colorado. (b) "New employee" means a person employed in a primary job at the Project after its substantial completion if such person performs duties on a regular full -time basis at least thirty -two (32) hours each week. The number of new employees at any stated time shall be determined by dividing by twelve the total number of new employees on the last business day of each month of the prior twelve consecutive month period ending on the stated time. L. II It J (c) "Project Value" means the fair market value of the real property and tangible personal property (except inventory or property held for sale to customers in the ordinary course of business) comprising the Project. The value of such property owned by the Applicant shall be its original cost or the fair market value of the property as represented by the Applicant, whichever is less. The value of buildings or structures constructed on real property as part of the Project, whether new construction or rehabilitation of existing buildings or structures, shall be the construction contract price therefor and shall not include expenditures commonly referred to as soft costs which include but are not limited to costs associated with legal, accounting and realtor fees; loan fees; sales and marketing; project signs; and rent lost during construction. (d) "Applicant" means the person, firm, partnership, [or] corporation or other entity who intends to develop a Project and files a written application for Funds in forms to be approved by the City Manager. (e) "Capital Improvement Project" or "Project" means a project or improvement of a permanent and fixed nature and includes the acquisition of property (both real property and tangible personal property, except inventory or property held for sale to customers in the ordinary course of business), the construction, extension, remodeling or rehabilitation of buildings or structures within which individuals are customarily employed or which are customarily used to house machinery or equipment, and the installation or extension of streets, sanitary sewer, water or other utilities required to serve a Project. (f) "Funds" means the sales and use tax revenues collected and on deposit in the 1992 -2001 Sales and Use Tax Capital Improvement Projects Fund[.] and the fair market value of real property owned by the City to be transferred as part of a Project (g) "Job Creating" means the creation of employment for new employees. "Construction Contract" means any and all contracts or other arrangements, including, without limitation, "design- build" arrangements, for construction work, labor, services and /or materials in excess of $50,000 for a Project SECTION 2. Application for Funds shall be filed in the office of the City Manager for preliminary review. If the City Manager determines that the application generally conforms with the provisions and intent of this Ordinance, he [will] shall forward the application and comments of City's administrative staff, if any, to City Council for consideration. If the City Manager determines that the application does not generally conform with the provisions and intent of this Ordinance, he will return the application to the Applicant with the reasons for his determination. The City Manager shall act in a timely and expeditious manner. ,, i� �l' II IILI Illy I III. SECTION 3. Each of the following criteria and standards must be met before the City Council may by Resolution approve an application for Funds: (a) The Project may not be speculative in nature and the Applicant must document to the City's satisfaction the Applicant's financial ability and experience to complete the Project and fulfill the Applicant's representations and commitments made with respect to the Project, including, without limitation, the number of new employees, the Project Value, and the Project's gross salary. (b) The amount of Funds made available for the Project shall not be greater than either: (i) fifty percent (50 %) of the Applicant's committed annual gross salary (excluding employee benefits) for new employees to be employed at the Project within two (2) years after its substantial completion; or, (ii) fifty percent (50 %) of the Project Value, as determined by the City Council in its sole discretion. (c) Employees employed by the Applicant within the City or at the Pueblo Memorial Airport (except employees transferred from outside the City and the County for purposes of developing the Project) on the date of the approval of Applicant's application shall not be counted as new employees and the number of such employees shall not be less than the average number of employees employed by Applicant within the City and the Pueblo Municipal Airport during the twelve month period immediately prior to such date as computed pursuant to Section 1(b). (d) The Project must be consistent with the City's long -range planning objectives for the City as a whole as well as the location of the Project. (e) The Project may not be for an activity or business which materially and substantially competes, as determined by the City Council in the exercise of its sole discretion, with an existing activity or business within the City. (f) If a Project is to be located at the Pueblo Memorial Airport, (i) the Project may not result in the relocation, in whole or in part, of an existing business or industry from the City to the Pueblo Memorial Airport, and (ii) the fair market value of any land or building transferred by the City to the Applicant shall be included as part of the Funds made available to the Applicant for purposes of Section 3(b). (g) If the application is for a loan of Funds, (i) the loan may be at such interest rate as the City Council shall determine and must be secured by a first deed of trust and /or security interest in all or a portion of the Project or other collateral acceptable to the City, having a reasonable fair market value in relation to the principal amount of the loan, (ii) the term of the loan shall not exceed ten (10) years, and (iii) the difference in the interest to be paid on the loan and interest calculated by using the so- called "prime rate" of Norwest Bank of Denver plus three percent (3 %) (as determined by the Director of Finance) shall be included as part of the Funds made available to the Applicant for purposes of Section 3(b). (h) All Construction Contracts [including design - build" contracts or other contractual arrangements in excess of $50,000 for a Project] shall be awarded by competitive bidding. Applicant 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. Applicant may invite other qualified general contractors with their principal place of business outside of Pueblo County, Colorado to submit bids. Applicant 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. Applicant 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 the Applicant and the general contractor who shall use its best efforts in good faith to engage local subcontractors and suppliers for such construction. If an Applicant, its employees or agents negotiate with a general contractor, subcontractor or supplier with respect to a Project prior to competitive bidding, the Applicant shall not enter into any Construction Contract with such general contractor, subcontractor or supplier for the Project. "Negotiate" means to discuss, confer upon, or arrange the terms and conditions of a Construction Contract including, without limitation, obtaining estimates of construction costs. SECTION 4. The City Council may grant a variance to the requirements set forth in Section 3, if the City Council determined in its sole discretion that the Project will create employment for new employees justifying the expenditure of Funds; provided, however, that such variance [shall not exceed twenty percent (20 %) of the requirements set forth in said Section 3(b)] and the grounds therefor are set forth in the Resolution approving the application SECTION 5. The City Council may expend portions of the Fund for the construction of so- called shell buildings or for the remodeling and renovation of existing buildings for the purpose of making such buildings available to Applicants who meet the standards and criteria of this Ordinance. SF(;TION 6 When an application for Funds is approved by Resolution adopted by the City Council, the Applicant as a condition precedent to the receipt of any of the approved Funds, shall within sixty (60) days after the date of such approval, or such later date as City and Applicant may mutually approve, enter into a written agreement with the City which contractually commits and binds Applicant to, and secures the performance of, all criteria and standards of this Ordinance or any variance thereto approved by the City Council, and all representations contained in the Applicant's application or otherwise made to the City by Applicant. The agreement shall contain a provision whereby the Applicant 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 its application. For breach or violation of such warranty, the City shall have the right to terminate the agreement, or recover the full amount of such commission, percentage, contingent fee or other remuneration, or to seek such other remedies legally available to City, which remedies shall be cumulative. SECTION 7. Any action taken by the City Council relating to an application for Funds is, and shall constitute, a legislative measure. No person or entity shall have a right to or be eligible to receive any Funds except as may be specifically authorized by Resolution of the City Council. Notwithstanding that an application for Funds may meet and comply with the criteria and standards of this Ordinance, the City Council reserves the right in its sole and absolute discretion to approve, reject, disapprove, or approve with modification any such application. No recourse shall be had against the City, the City Council or any officer, employee or agent of the City, by, or be available to, any Applicant or other person or entity resulting from or arising out of the filing of an application for Funds or the rejection, modification, approval or nonapproval of an application by the City Council. The filing of an application by an Applicant shall constitute and be construed to constitute an expressed waiver and release of the City, the City Council, and officers, employees and agents of the City from any such recourse and all other claims or liabilities with respect to the application or any action taken or not taken thereon by the City or the City Council. SECTION 8. This Ordinance may be rescinded, modified or amended, in whole or in part, at any time by ordinance duly adopted by the City Council. SFCTION 9 If any section, paragraph, clause or provision of this Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity of enforceability of such section, paragraph, clause or provision shall not affect any of the remaining provisions of this Ordinance. SECTION 10. Ordinance No. 5742 is hereby repealed provided that such repeal shall not affect any contract, obligation, right, remedy or privilege granted or existing prior to the effective date of this Ordinance. SECTION 11. This Ordinance shall become effective immediately upon final passage. INTRODUCED November 23, 1998 BY: Al Gurule Councilperson APPROVED: lA L Prosidwd oVm unod ATTEST: 1 '., R 1