HomeMy WebLinkAbout7519RESOLUTION NO. 7519
A RESOLUTION APPROVING AN AGREEMENT BETWEEN
PUEBLO, A MUNICIPAL CORPORATION AND McDONNELL
DOUGLAS CORPORATION RELATING TO A JOB CREATING
CAPITAL IMPROVEMENT PROJECT AND AUTHORIZING
THE EXPENDITURE OF $850,000 THEREFOR FROM THE 1992
SALES AND USE TAX CAPITAL IMPROVEMENT PROJECT
FUND
WHEREAS, McDonnell Douglas Corporation has expressed a willingness to maintain and
expand its business activities within the Pueblo Municipal Airport Industrial Park and has committed
to employ at its facilities within the Pueblo Municipal Airport Industrial Park, ninety (90) full time
employees as a result of such maintenance and expansion program, and
WHEREAS, McDonnell Douglas Corporation through the Pueblo Economic Development
Corporation has made application for funds from the 1992 Sales and Use Capital Improvement
Project Fund, and
WHEREAS, the City Council is willing to approve such application for funds upon the terms
and conditions set forth herein; NOW, THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1
The City Council does hereby find and determine that McDonnell Douglas Corporation's
application for funds meets and complies with the criteria and standards established by Ordinance
No. 5742 and will create employment opportunities justifying the expenditure of public funds.
SECTION 2
The Agreement dated December 12, 1994 between Pueblo, a municipal corporation and
McDonnell Douglas Corporation, a copy of which is attached hereto and incorporated herein, 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 and the attached Non - Disclosure
Agreement in the name of the City and the City Clerk is authorized and directed to affix the seal of
the City thereto and attest same.
SECTION 3
Funds in an amount not to exceed $850,000 are hereby authorized to be expended and made
available to McDonnell Douglas Corporation out of the 1992 Sales and Use Tax Capital
Improvement Fund for the sole purpose of reimbursing it for the cost of the job creating capital
improvement project described in the attached Agreement. The funds hereby authorized to be
expended shall be released and paid by the Director of Finance to McDonnell Douglas Corporation
after receipt (1) by the City Clerk of the documents required to be filed pursuant to paragraph 3(a)
of the Agreement and (ii) by the Director of Finance of written requests for payment required by
paragraph 3(c) of the Agreement.
SECTION 4
This Resolution shall become effective upon final passage.
ATTEST:
Cify Clerk
INTRODUCED: December 12, 1994
B JOHN CALIFANO
Councilperson
APPROVED:
President of the City Council
-2-
AGREEMENT
THIS AGREEMENT entered into as of December 12, 1994 between Pueblo, a
municipal corporation (the "City ") and McDonnell Douglas Corporation, a Maryland
Corporation (the "Company ").
WHEREAS, Company has expressed a willingness to expand its business within the
Pueblo Municipal Airport Industrial Park, and in furtherance thereof has through the Pueblo
Economic Development Corporation made application for funds with the City, and
WHEREAS, the City has approved such application and will make funds available to
Company subject to and upon the terms and conditions of this Agreement.
1. As used in this Agreement, the following terms shall have the following meanings:
"Employment Commitment" means two hundred twenty -five (225) Full -Time
Employees.
"Company's Contribution" means the money the Company has spent and will
spend (approximately $2,125,000) related to the relocation of C -17 work to expand its
business on the Property including without limitation, renovating and equipping the facility on
the Property.
"Full -Time Employee" means a person employed by Company or outside
agencies for the Company to perform work at the Property for not less than thirty -two (32)
hours per week. The term "Full -Time Employee" shall include employees who perform work
1
at the Property including but not limited to employees of the Company and employees of
independent contractors where the contractor is acting as an agency to provide Full -Time
Employees for the Company, including, but not limited to, Security, Maintenance,
Manufacturing, Production, Administrative, and Secretarial personnel and other contract
labor hires. Full -time employees shall not include employees of independent contractors
except as described herein.
"Quarterly Average Number of Employees" means the sum of the number of Full -
Time Employees on each business day of a calendar quarter divided by the sum of the
business days of such calendar quarter.
"Property" means the land and facilities owned or leased by Company
headquartered at 1 McDonnell Douglas Street, Pueblo, Colorado that consists of facilities
existing at Parcels A and B and Building 3 (see Attachment #1.)
2. Company shall spend Company's Contribution in furtherance of Company's
relocation of C -17 work and expansion of its business on the Property in an expeditious
manner.
3. City will make available to Company $850,000 (the "City Funds ") to assist in
Company relocation of work into company's facilities at the Property. Attachment #2 sets
forth in excess of $2.1 million Company expenditures made or anticipated to be made as part
of the Company relocation of work to its Pueblo Property including approximately $876,000
in equipment, $225,000 in construction and facility upgrades, and $1.1 million in labor cost
related to the relocation and set up. City Funds shall be utilized for two drivmatics and other
equipment and facilities modifications included in Attachment #2. Payments shall be made
subject to the following:
2
(a) Company filing in the office of the City Clerk copies of the following: (i)
certified copy of the Corporate Delegation of Authority authorizing designated employees to
execute agreements in the name of Company, and (ii) evidence satisfactory to City that
Company has spent, incurred costs or has lawfully committed to spend Company's
Contribution that represents the City Funds, including but not limited to Company accounting
records, purchase orders and invoices. The date of such filings is herein referred to as
"Closing."
(b) All future construction contracts for modifications to the facilities on the
Property for which payment is sought from City shall be awarded after competitive bidding
which allows qualified local contractors to reasonably participate in the competitive bidding
procedures.
(c) Company filing with the Director of Finance of City written requests for
payment certified by an authorized officer of Company that the amounts set forth in the
Request for Payments are actual costs or are lawful commitments to expend Company funds
for two drivmatics and other equipment and facility modifications described in Attachment #2
as evidenced by submitted accounting records, purchase orders and invoices, including
statements from the architect or contractor, where applicable, that such improvements have
been completed.
4. Company acknowledges that the primary purpose of City in entering into this
Agreement and the sole benefit to the City for making funds available to Company hereunder
is the creation of jobs. Therefore, Company represents and commits that it will maintain the
Employment Commitment for the period beginning 1 January 1995 and extending for three
years thereafter.
3
5. (a) If at the end of any calendar quarter during the three year period from the
effective date of this Agreement the Quarterly Average Number of Employees at the Property
for that calendar quarter is less than the Employment Commitment, Company shall repay to
City a pro -rata portion of the funds advanced calculated as follows:
225 (the Employment Commitment) minus (either (1) the Quarterly Average
Number of Employees for the quarter, or (2) 135 the Base Employment,
whichever is greater) multiplied times $787.04 (the Company's Payment).
(b) The Company's Payments, if any, shall be paid to the City without notice,
demand, offset or deduction on or before the thirtieth (30th) day following the end of the
applicable calendar quarter during the Repayment Period at the office of the Director of
Finance of City, 1 City Hall Place, Pueblo, Colorado 81003. All past due Company's
Payments shall bear interest at the rate of ten (10) percent per annum until paid.
(c) Within thirty (30) days after the end of each quarter covered by the
Repayment Period, Company will submit to City's Director of Finance Company's statement
showing the Quarterly Average Number of Employees for the preceding quarter and the
basis upon which Quarterly Average Number of Employees and Company's Payment, if any,
were computed certified by an officer of the Company to be true and correct. For purposes of
verifying such employment, City shall have access to Company's books and records,
including payroll records.
(d) Within 9 months of final signature of this Agreement, Company shall provide
evidence satisfactory to City that Company has spent, incurred costs, or has lawfully
0
committed to spend the Company Contribution, including but not limited to accounting orders,
purchase orders and invoices.
6. City Council of City shall relieve Company in whole from any Company Payment
obligation raised under this agreement only to the extent Company is precluded from
complying with its Employment Commitment by reason of an act of God, or the elements, fire,
explosion, strike, insurrection, riot, unavailability of materials, supplies or labor. In order to
obtain such relief, Company must submit to City written evidence and documentation of such
preclusion.
7. For purposes of verifying such full -time employment and Company Contributions,
City shall have access to Company's books and records including payroll records. City will,
however, respect the right of employees as to confidentiality of personnel records, and
agrees to enter into a confidentiality agreement with MDC to protect MDC's proprietary
financial /cost information.
8. If Closing does not occur on or before July 1, 1995, this Agreement shall
terminate and City and Company shall be released and discharged from all obligations
hereunder.
9. In the event of any litigation arising out of this Agreement, the court shall award to
the prevailing party its costs and reasonable attorney fees. All such litigation shall be filed in
the District Court, County of Pueblo, State of Colorado and each party submits to the
jurisdiction of that Court. Each party waives its right to a jury trial.
G�
10. This Agreement expresses the entire understanding of the parties and
supersedes any and all prior dealings and commitments with respect to the subject matter of
this Agreement and may not be amended except in writing signed by City and Company.
11. This Agreement shall be construed in accordance with and governed by the laws
of the State of Colorado.
12. Any notices hereunder shall be sufficiently given if given personally or mailed by
first class mail, postage prepaid, addressed:
(a) if to City, City Manager, City of Pueblo, 1 City Hall Place, Pueblo, Colorado,
81003, or
(b) if to the Company, Attention: Senior Manager, Business, 1 McDonnell
Douglas Street, Pueblo, Colorado, 81001.
or to such other address as either party shall specify in written notice given to the other party.
13. This agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns, provided Company may not assign this Agreement
or any interest herein without the prior written consent of City. At the election of City, any
assignment or attempted assignment without the consent of City shall be null and void.
14 No delay or failure by City to exercise its right to enforce Company's Repayment
Obligation, and no partial or single exercise of that right, shall constitute a waiver of that right,
unless the City Council otherwise expressly provides in its findings and decision made
pursuant to paragraph 6.
N
15. The person signing this agreement on behalf of Company represents and
warrants that such person and Company have the requisite power and authority to enter into,
execute, and deliver this Agreement and that this Agreement is a valid and legally binding
obligation of Company enforceable against Company in accordance with its terms.
16. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and the same
instrument.
Executed the day and year first above written.
[ S E A L] PUEBLO, A MUNICIPAL CORPORATION
ATTEST: B i�� YGC�
City Clerk pre ident of the' Council
[ S E A L ] McDONNELL DOUGLAS CORPORATION,
a Maryland Corporation
ATTEST: 1 , By: ()
Name: Thomas P. Tshudy
Title: Assistant General Counsel
Name: S. W. Vogeding
Title: Vice President - General Manager
Business Management - West
7
a�
U
Q
93
10 wotonj
M
q
a °
.i 4 •,=' Ynbrl ref~ I�.S'� "� ""r!. ^" *` ".. i
— — —"nVOO vononv?rd ,_, a — --
l .11 • 11 1.1 1 •�••� � ••
�ts oct8nea towoa�Vl
a
!
' V
M! r..
0 �
W
Q i
y �
0 w
V)
4
4a
uj
O W
° vi
93
10 wotonj
M
q
a °
.i 4 •,=' Ynbrl ref~ I�.S'� "� ""r!. ^" *` ".. i
— — —"nVOO vononv?rd ,_, a — --
l .11 • 11 1.1 1 •�••� � ••
�ts oct8nea towoa�Vl
a
A71 PUEBLO
PEDCO DETAIL LIST
Attachment #2
OUTSIDE SERVICES:
PURCHASE
FACILITIES
CONTRACT LABOR
IN HOUSE LABOR
TOTAL COSTS
DESCRIPTION:
EQUIPMENT:
$496,617
2 DRIVMATIC POSITIONERS
$496,617
$7,119
COLD WORK HOLE EQUIPMENT
$7,119
$44,400
OVERHEAD CRANE
$44,400
$37,368
SENSOR POSITIONING SYSTEM
$37,368
$19,149
VIBROBOWL RIVET FEED SYSTEM
$19,149
$6
DRIVMATIC MAINTENANCE EQUIPMENT
$3,300
$6,416
TELESCOPE EQUIPMENT
$6,416
$13,931
HEAVY DUTY STACKER
$13,931
$8
$8,150
POSITURNER
$8,150
$221,085
SHIPPING EQUIPMENT & HFHT'S
$221,085
$4,646
DIRECT PERISHABLE EQUIPMENT
$4,646
$26,350
WORK STATIONS & PERISHABLE EQUIPMENT
$26,350
FACILITIES:
PC OFFICE REARRANGEMENT & ENCLOSURE
$30,000
$30,000
$
REBUILD HVAC IN BLDG 2
$50, 000
,000
$7,025
$7
ELECTRICAL INSTALLATION- MACHINE SHOP
$7,025
$11,258
CONSTRUCTION /CONCRETE PAD
$11,258
$,594
CONSTRUCTION/WIRE HARNESS
$32,594
$4
$4,909
RE- INSTALL DUCT WORK
$4,909
$4,892
CHAIN LINK FENCING /GSE, BLDG 3 & C17
$4,892
$20,154
COMPUTER &TELEPHONE REARRANGEMENTS
$20,154
$,719
FACILITY MOVES & REARRANGEMENTS - IPS
$65,719
$8,275
$8
PREPARATION FOR DRIVMATIC
$8,275
OUTSIDE SERVICES: CONTRACT LABOR
$64,408
$64,408
KELLY & MANPOWER -GSE PROCUREMENT
IN -LABOR COSTS:
$61,706
$61,706
A71 REARRANGEMENT LABOR COSTS
$8,199
$8,199
A71 DRIVMATIC START -UP
$101,475
$101,475
A71 TRAINING
$672,357
$672,357
A3 & A71 NON - RECURRING LABOR
$459,000
$459,000
DAC NON - RECURRING LABOR
TOTAL
$888,531
$234,826
$64,408
$1,302,737
$2,490,502
ACTUALS INCURRED /COMMITTED
$764,412
$154,826
$64,408
$760,012
$1,743,658
Attachment #2
NON - DISCLOSURE AGREEMENT
This Agreement is entered into as of 12 December 1994 by and between
McDonnell Douglas Corporation, having a place of business at 5301 Bolsa Avenue,
Huntington Beach, California 92647 (hereinafter referred to as "MDC ") and Pueblo, a
Municipal Corporation (hereinafter referred to as "City ").
1. PURPOSE
The purpose of this Agreement is to set forth the rights and obligations of the
parties with respect to the use, handling, protection, and safeguarding of Proprietary
Information which is disclosed by and between the parties hereto relating to MDC's
expansion of business at the Pueblo Municipal Airport Industrial Park and the City's
agreement to make available funds to MDC for that purpose.
2. DEFINITION
Proprietary Information is defined as technical data and other information
(including but not limited to reports, descriptions, drawings, compositions, business
and financial information, and computer software) in whatever form, which is related to
the subject matter set forth in Article 1 hereabove, and is identified as proprietary by
the disclosing party in accordance with the following guidelines:
(1) When disclosed in writing, Proprietary Information will be clearly and
conspicuously marked by appropriate stamp or legend by the disclosing
party as Proprietary Information.
(2) When disclosed orally or visually, Proprietary Information will be
immediately identified as Proprietary Information; within thirty (30) days of
disclosure, the disclosing party will reduce the oral or visual disclosure to
written form, mark it as proprietary, and deliver it to the receiving party.
(3) When disclosed in the form of magnetic recording or some other
machine readable form, Proprietary Information will be identified as
Proprietary Information when transmitted; if possible, the container and
form of the information will be clearly and conspicuously marked as
proprietary to the disclosing party.
3. TERM
This Agreement shall terminate on December 31, 1998; however, this
Agreement may be terminated by either party at any time by giving thirty (30) days
written notice of termination to the other party. Notwithstanding any such termination,
the requirements specified in Article 5 herebelow shall continue to be binding upon
the parties thereafter.
Page 1 of 4
4. LIMITATIONS ON USE AND DISCLOSURE OF PROPRIETARY INFORMATION
A. Proprietary Information disclosed by one party shall be used by the
receiving party solely for the purpose of verification of full -time employment and
Company Contribution as defined in Agreement dated December 12, 1994 between
MDC and City and shall not otherwise be used for the benefit of the recipient or others.
B. Proprietary Information shall not be copied or reproduced by the
receiving party without the express written permission of the disclosing party, except
for such copies as may be reasonably required for accomplishment of the purpose
stated above.
C. Proprietary Information shall be disclosed only to the director or
employees of the receiving party who have a "need to know" in connection with the
purpose stated above.
D. Except as permitted in Article 4 hereabove, Proprietary Information shall
not be disclosed by receiving party to any third party without the prior written consent
of the disclosing party.
E. This Agreement shall not restrict disclosure or use of Proprietary
Information which:
(1) was in the public domain at the time of disclosure or thereafter enters
the public domain through no breach of this Agreement by the receiving
party; or
(2) was, at the time of receipt, otherwise known to the receiving party
without restrictions as to use or disclosure; or
(3) becomes known to the receiving party from a source other than the
disclosing party without breach of this Agreement by the receiving party;
or
(4) is developed independently by the receiving party without the
use of Proprietary Information disclosed to it hereunder; or
(5) is disclosed more than five (5) years after it is first received
hereunder.
5. LIABILITY FOR INADVERTENT DISCLOSURE
Neither party shall be liable for the inadvertent or accidental use or disclosure of
information identified as proprietary provided such use or disclosure occurs despite
the exercise of the same degree of care as that party normally takes to safeguard and
preserve its own Proprietary Information, provided such degree of care is no less than
a reasonable one.
Page 2 of 4
6. WARRANTY
NEITHER PARTY MAKES ANY WARRANTY, GUARANTEE, OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF
THE PROPRIETARY INFORMATION DISCLOSED HEREUNDER. NEITHER PARTY
SHALL BE LIABLE FOR DAMAGES, OF WHATEVER KIND, AS A RESULT OF THE
OTHER PARTY'S RELIANCE ON OR USE OF THE INFORMATION PROVIDED
HEREUNDER.
7. NO FORMAL BUSINESS OBLIGATIONS
This Agreement shall not constitute, create, give effect to or otherwise imply a
joint venture, pooling arrangement, partnership or formal business organization of any
kind, nor shall it constitute, create, give effect to, or otherwise imply an obligation or
commitment on the part of either party to submit a proposal to or perform a contract
with the other party. Nothing herein shall be construed as providing for the sharing of
profits or loss arising out of the efforts of either or both parties. Neither party will be
liable to the other for any of the costs associated with the other's efforts in connection
with this Agreement.
8. NO LICENSE GRANTED
No license or conveyance of any rights to either party under any discoveries,
inventions, patents, trade secrets, copyrights, or other form of intellectual property is
granted or implied by the exchange of Proprietary Information between the parties.
9. SPECIFIC PERSON TO RECEIVE PROPRIETARY INFORMATION
Each party shall advise the other party of one person in its employ who will
receive the Proprietary Information exchanged pursuant to this Agreement. On the
effective date of this Agreement the following are so named:
MDC
Name: Steve Goldberg
Telephone: (719) 585 -3109
Fax No. (719) 585 -3139
City
Name: Billy G. Martin
Telephone: (719) 584 -0845
Fax No. (719) 584 -0844
10. UNITED STATES GOVERNMENT REGULATIONS
The parties and their employees shall not use or disclose any Proprietary
Information or other information furnished hereunder in any manner contrary to the
laws and regulations of the United States of America, or any agency thereof, including
but not limited to, the Export Administration Regulations of the U.S. Department of
Commerce, the International Traffic in Arms Regulations of the U.S. Department of
Page 3 of 4
State, and the Industrial Security Manual for Safeguarding Classified Information of
the Department of Defense.
11. APPLICABLE LAW
This Agreement shall be construed by the laws of the state of California,
excepting its rules as to conflicts of laws.
12. ASSIGNMENT
Neither this Agreement nor any interest herein may be assigned in whole or in
part by either party hereto without the prior written consent of the other party.
McDonnell Douglas Corporation
McDonnell Douglas Aerospace
Compan
Signature
S. W. Vogeding
Name
Pueblo, a Municipal Co. rporation
Company
Signature
J d �lc E f—::� N C
Name
Vice President - General Manager
Business Management - West
Title
December 6, 1994
Date
President of the City Council
Title
December 12. 1994
Date
Page 4 of 4