HomeMy WebLinkAbout2012-088-09/04/2012-APPROVING AN AGREEMENT BETWEEN THE CITY AND FORNEY INDUSTRIES, INC. TO PROVIDE BUSINESS INVESTMENT A RESOLUTION 2012-088
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROVING AN AGREEMENT BETWEEN THE CITY AND
FORNEY INDUSTRIES, INC. TO PROVIDE
BUSINESS INVESTMENT ASSISTANCE
WHEREAS, Forney Industries, Inc. ("Forney") intends to submit an annexation petition to
the City to annex the property upon which its manufacturing operation is located at 1830 LaPorte
Avenue; and
WHEREAS, in connection with the annexation, Forney will be expanding its business
operations and creating an additional six jobs with an average an annual salary of$47,000, which
jobs would provide a significant economic development benefit to the community at large; and
WHEREAS,the Forney annexation and expansion is anticipated to increase annual sales tax
revenue,personal property tax revenue,and real property tax revenue for the City by approximately
$304,000 net of the rebates over the ten-year term of the Agreement; and
WHEREAS, City staff has been working with Forney to discuss ways in which the City can
provide financial assistance to Forney that will enhance the likelihood that the annexation and
expansion will be pursued; and
WHEREAS, City staff has prepared for City Council's consideration a proposed agreement
between the City and Forney (the "Agreement"), which Agreement sets forth the terms and
conditions upon which financial assistance will be provided to Forney by the City and is attached
as Exhibit "A"; and
WHEREAS, the City Council has determined that providing financial assistance to Forney
as provided in the Agreement is in the best interests of the City and will serve the important public
purposes of increasing employment in the City, stabilizing and improving the long term tax base of
the City and providing additional economic development benefits to the City.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
. . Section 1. That the City Council hereby finds that providing financial assistance to
Forney,upon the terms and conditions contained in the Agreement,is in the best interests of the City
and serves the important public purposes of increasing employment within the City, stabilizing and
improving the long-term tax base of the City,and promoting economic development within the City.
Section 2. That the Agreement, in substantially the form contained in Exhibit "A"
attached hereto and incorporated herein by this reference, is hereby approved by the City Council,
subject to such modifications as may be deemed necessary by the City Manager,in consultation with
the City Attorney, in order to further the purposes of the Agreement.
Section I That the City Manager is hereby authorized to execute the Agreement on
behalf of the City.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 4th
day of September A.D. 2012.
Ma,or
OF FORT,
ATTEST:
'•Z
tit
City Clerk
.' .•,` �
EXHIBIT A
BUSINESS INVESTMENT AGREEMENT
FOR ECONOMIC DEVELOPMENT
RELATED TO FORNEY INDUSTRIES, INC.
THIS AGREEMENT is entered into this 28th day of September, 2012,by and between the
City of Fort Collins, Colorado, a home rule municipal corporation (the "City"), and Forney
Industries, Inc., a Colorado Corporation ("Forney").
RECITALS
WHEREAS, Forney is the owner of property located at 1830 LaPorte Avenue, Fort
Collins, Colorado that is more fully described in Exhibit A and incorporated herein by this
reference (the "Property"); and
WHEREAS, Forney has committed to petitioning City Council to annex the Property
into the City by September 28, 2012; and
WHEREAS, the annexation will enable the City to better maintain its place as the
regional business center of Northern Colorado in the face of competing facilities that could
otherwise draw significant employment opportunities out of the Fort Collins community; and
WHEREAS, Forney estimates that as a result of the annexation they will be expanding
operations and creating approximately 6 new professional jobs with an average salary of
$47,000 annually; and
WHEREAS, the City's Economic Health Office has concluded that the Project will
generate a substantial increase in tax revenue for the City, including approximately (i) $312,000
gross sales tax; (ii) $8,778 in gross new personal property tax in the first ten years; and (iii) $
58,784 in gross new real property tax in the first ten years; and
WHEREAS, according to the Economic Health Office the annexation and related
operations will prevent high-paying jobs from leaving Fort Collins to other sites in Northern
Colorado and elsewhere; and
WHEREAS, according to the Economic Health Office, the annexation and related
expansion of operations will keep a manufacturing and distribution business in the City; and
WHEREAS, Forney has requested that the City enter into a business investment
agreement for economic development; and
WHEREAS, based on Forney's representations that (i) they will use commercially
reasonable efforts to annex the Property into the City, (ii) the expansion of operations will
maintain a manufacturing and distribution facility that will be owned and operated by Forney,
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(iii) new jobs will be generated, and (iv) that they intend to have a reasonable expectation of
long-term operations in the City; and
WHEREAS, in order to encourage the Project, the City Council has determined, through
the adoption of Resolution 2012-088 on August 21, 2012, that it is in the best interests of the City
to provide a package of financial assistance consisting of three components: a rebate of new
City sales tax revenues generated by Forney after they annex; a rebate of City personal property
tax after they annex; and the rebate of City real property tax after they annex; and
WHEREAS, the City Council has further determined, through the adoption of
Resolution 2012-088 that providing the financial assistance described in this Agreement to
Forney will serve the important public purposes of increasing employment in the City,
stabilizing and improving the long term tax base of the City, and providing additional economic
development benefits to the City.
NOW, THEREFORE, in consideration of the promises contained in this Agreement, and
other good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows.
SECTION 1. DEFINITIONS
Application for Sales Tax Rebate means the application process for a sales tax rebate using City
approved forms consistent with the form attached as Exhibit B and specifically including the
following information: vendor name, invoice number and date, purchase price, and amount of
Fort Collins tax paid; invoices may not need to be submitted at the time of the application.
Charter means the Home Rule Charter of the City.
City means the City of Fort Collins, Colorado, a home rule municipal corporation.
Code means the Code of the City of Fort Collins.
Countv Assessor means the Larimer County Assessor.
Effective Period means the period following annexation of the Property and continuing during
Forney's ownership of the Property.
Forney means Forney Industries, Inc., a Colorado Corporation and its subsidiaries.
Land Use Code means the Fort Collins Land Use Code.
Personal Property means all Forney's corporeal personal property in the City.
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Petition for Annexation means that petition to annex the Property, as shown in Exhibit A, into
the City pursuant to the relevant provisions of the Code, Land Use Code, and state law.
Real Property means the Property as described on Exhibit A.
Sales Tax Rebate means the rebate of City sales tax to Forney described in Section 3 of this
Agreement.
SECTION 2. REPRESENTATIONS AND COVENANTS
2.1. The City represents and covenants that:
2.1.1. The City is a home rule municipal corporation of the State of Colorado.
2.1.2. There is no litigation or administrative proceeding pending or, to the knowledge
of the City, threatened, seeking to question the authority of the City to enter into
or perform this Agreement.
2.1.3. The City reasonably believes that it has the authority to enter into the
Agreement, and, assuming such authority, the City Council has properly and
regularly authorized the City to enter into the Agreement.
2.2. Forney represents and covenants that:
2.2.1. Forney is a corporation, duly organized and validly existing under the laws of
the State of Colorado, is authorized to do business in the State of Colorado, is not
in violation of any provisions of its organizational documents or, to its
knowledge, the laws of the State of Colorado.
2.2.2. Forney has the power and legal right to enter into the Agreement and has duly
authorized the execution, delivery and performance of this Agreement by proper
action, which Agreement will be enforceable against Forney in accordance with
its terms.
2.2.3. The consummation of transaction contemplated by this Agreement will not
violate any provision of the governing documents of Forney or, to its knowledge,
constitute a default or result in the breach of any term or provision of any
contract or agreement to which Forney is a party or by which it is bound.
2.2.4. To its knowledge, there is no litigation, proceeding, or investigation contesting
the power of authority of Forney with respect to the annexation, expansion of
operations, or this Agreement, and Forney is unaware that any such litigation,
proceeding, or investigation has been threatened.
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2.2.5. Forney has submitted a Petition for Annexation to the City in accordance with all
applicable procedures set forth in the Code, Land Use Code, and Colorado law
and has committed to take that Petition to the Fort Collins City Council no later
than September 4, 2012, with final approval by September 28, 2012.
2.2.6. In annexing and expanding its operations on the Property, Forney will comply
with all applicable zoning and land use requirements and other applicable
federal; state, county, and City statutes, rules, regulations and ordinances.
2.2.7. Forney currently intends to operate, or cause to operate, a manufacturing and
distribution facility for a period of not less than ten years beginning on December
31, 2012.
2.2.8. Forney will cooperate with the City in taking reasonable actions to defend
against any litigation brought by a third party concerning the annexation,
expansion of operations, or this Agreement.
SECTION 3. PAYMENT AND REIMBURSEMENT OF SALES TAX
3.1. Forney shall pay to the City all City sales tax due from Forney for its operations during
the Effective Period.
3.2. For purposes of this Agreement the parties agree that the rebate for sales taxes
contemplated by this Agreement shall be based upon the base sales tax rate of 2.25% and shall
specifically excludes any dedicated tax approved by City voters, including but not limited to:
3.2.1. A .25 percent tax approved by City voters to be used specifically for streets and
transportation and currently due to expire on December 31, 2015;
3.2.2. A .25 percent tax approved by City voters to be used specifically for general city
projects due to expire on December 31, 2015;
3.2.3. A .25 percent tax approved by City voters to be used specifically for natural areas
and due to expire on December 31, 2030; and
3.2.4. A .85 percent tax on all non-exempt taxable items, to be used for certain specified
purposes and to be levied for a ten year period, beginning January 1, 2011, and
ending December 31, 2021.
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3.3. To the extent permitted by the constitution and laws of the State of Colorado and the
Charter, including but not limited to, applicable prohibitions on multiple fiscal year obligations
and the condition that all financial obligations be contingent upon the appropriation of funds
sufficient and intended therefore by the City Council of the City, in its sole discretion, the City
agrees to rebate to Forney the City sales tax paid by Forney under the terms set forth in
paragraph 3.3.1, 3.3.2, 3.3.3, 3.3.4, And 3.3.5 below (the "Sales Tax Rebate"). If, as presently
contemplated by the parties, the contingencies described in those paragraphs and this
Agreement are satisfied, and subject to the legal limitations as noted above, the City will rebate
to Forney up to one hundred percent (100%) of City sales tax paid by Forney for the period
beginning September 28, 2012 and ending September 27, 2015(the "Rebate Period') subject to a
limit on the total sales tax rebate amount of Forty-Five Thousand Dollars ($45,000) (the
"Maximum Sales Tax Reimbursement") and subject to annual maximum amounts of$3,750 for
partial year 2012, $15,000 for 2013, $15,000 for 2014, and $11,250 for the partial year 2015. (the
"Maximum Annual Cap").
3.3.1. The Sales Tax Rebate shall be conditioned upon the full and timely payment by
Forney to the City of all City sales tax due and owing from Forney. If this
contingency has not been satisfied or is no longer satisfied as of the dates set
forth below, no such Sales Tax Rebate, or any subsequent Sales Tax Rebate or
other incentive payment provided in this Agreement, will be paid until payment.
of the City sales tax past due, with any applicable penalties and interest, is cured.
Furthermore, in order to be eligible for any Sales Tax Rebate hereunder, Forney
shall submit an Application for Sales Tax Rebate that satisfies all terms and
conditions of that Application for Sales Tax Rebate. The Application for Sales
Tax Rebate must be submitted as follows:
3.3.2. For rebate of City sales tax paid between September 28, 2012, and December 31,
2012, submit the Application for Sales Tax Rebate on or before March 31, 2013.
The City's Sales Tax Rebate to Forney for 2012 sales taxes hereunder will be due
and payable no later than June 30, 2013 (the "First Payment") and will not exceed
$3,750.
3.3.3. For the rebate of City sales tax paid during 2013, submit the Application for Sales
Tax Rebate on or before March 31, 2014. The related Sales Tax Rebate will be due
and payable to Forney no later than June 30, 2014 (the "Second Payment") and
will not exceed $15,000.
3.3.4. For the rebate of City sales tax paid during 2014, submit the Application for Sales
Tax Rebate on or before March 31, 2015. The related Sales Tax Rebate will be due
and payable no later than June 30, 2015 (the "Third Payment") and will not
exceed $15,000.
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3.3.5. For the rebate of City sales tax paid between January 1, 2015, and September 27,
2015, submit the Application for Sales Tax Rebate on or before December 31,
2015. The related Sales Tax Rebate will be due and payable no later than March
31, 2016 (the "Final Payment") and will not exceed $11,250.
3.4. The City, in its sole discretion, may pre-pay all or any portion of the Sales Tax Rebate
without penalty.
3.5. Forney assumes all risk associated with any legal contingencies limiting the City's
obligation to make any payments in future fiscal years and conditioning all future fiscal year
obligations on the City's discretionary appropriation of funds therefor.
3.6. In the event that the annexation of the Real Property has not been finalized by
September 28, 2012, as presently contemplated by the parties, the Rebate Period and maximum
amounts referenced in paragraph 3.3 above, as well as the maximum amounts referenced in
subparagraphs 3.3.2 and 3.3.5 will be adjusted to reflect the actual effective date of the
annexation ordinance.
3.7. It is not the parties' intent that Forney be paid or entitled to any interest or penalty on
sales taxes paid by Forney, or any penalty or interest on Sales Tax Rebate payments delayed or
withheld by the City.
3.8. In addition to the limit of the Maximum Sales Tax Reimbursement, the parties further
acknowledge and agree that the City is in no way responsible for the amount of City sales tax
actually paid or collected for any equipment or corporeal property of Forney.
3.9. The parties agree that the provisions of this Agreement do not constitute an
indebtedness of the City within the meaning of any constitutional or statutory limitation or
provision. The commitment of the City to pay the Sales Tax Rebate under this Agreement is
from year to year only and does not constitute a mandatory payment obligation of the City in
any fiscal year beyond the present fiscal year. This Agreement does not directly or indirectly
obligate the City to make any payment of a Sales Tax Rebate beyond those for which funds have
been appropriated as of the date of this Agreement. The City Manager (or any other officer or
employee at the time charged with the responsibility of formulating budget proposals) shall
make a good faith effort to include in the budget proposals and appropriation ordinances
proposed to the City Council, in each year prior to expiration of this Agreement, amounts
sufficient to meet the City's commitments hereunder, subject to the conditions and
contingencies set forth herein. Notwithstanding the foregoing, the parties expressly
acknowledge that the decision as to whether to appropriate such amounts is in the discretion of
the City Council.
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3.10. Under no circumstance will Forney be assessed or be liable for any City sales and
usetaxes with respect to any equipment or other corporeal property purchased and delivered to
Forney prior to the annexation of the Property. The parties specifically acknowledge and agree
that a rebate of use tax is not contemplated as part of this Agreement.
SECTION 4. PAYMENT AND REBATE OF PERSONAL PROPERTY TAXES
4.1. Forney shall pay to the City all personal property taxes due from Forney associated with
its operations on the Property during the Effective Period.
4.2. To the extent permitted by the constitution and laws of the State of Colorado and the
Charter, including but not limited to, applicable prohibitions on multiple fiscal year obligations
and the condition that all financial obligations be contingent upon the appropriation of funds
sufficient and intended therefore by the City Council of the City, in its sole discretion, the City
agrees to rebate to Forney a portion of the City personal property taxes paid under the terms
and conditions set forth in paragraph 4.3 below (the "Personal Property Tax Rebate'). If, as
presently contemplated by the parties, the contingencies described in paragraph 4.3 and this
Agreement are satisfied as to each of the ten payments provided for therein, and subject to the
legal limitations as noted above, the City will rebate to Forney up to the amount shown on the
Payment Schedule defined below, of City personal property taxes actually paid in the
increments and for the time periods described therein, subject to a limit on the total amount of
Personal Property Tax Rebate to be paid by the City of Three Thousand Nine Hundred Ninety
Dollars ($3,990) in total, and a limit on each annual payment of Three Hundred Ninety-Nine
Dollars ($399).
4.3. The payments of Personal Property Tax Rebates referenced in paragraph 4.2 above will
be made by the City to Forney as follows:
4.3.1. Forney and the City have jointly created a schedule of estimated personal
property taxes to be paid ('Payment Schedule") associated with the Property as
described in this Agreement, attached hereto and incorporated herein by this
reference as Exhibit C. This Payment Schedule also provides the basis for a
schedule of personal property tax rebate payments, which shall be 50% of the
City personal property taxes paid by Forney up the maximum amounts set forth
above.
4.3.2. The annual Personal Property Tax Rebate contemplated by this Section will be
paid by December 31 of each year, with the first such annual payment scheduled
for 2015 as set forth in the Payment Schedule.
4.3.3. Forney expressly agrees that no portion of the Personal Property Tax Rebate will
be paid if, at the time specified for payment, Forney:
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(a) has not continuously conducted it operations on the Property as described in
this Agreement; or
(b) has not actually paid to the City during the relevant tax year personal
property taxes equal to or greater than two times the Personal Property Tax
Rebates for that year, as set forth in the appropriate payment schedule; or
(c) has not actually paid to the City during the term of this Agreement total
personal property taxes equal to or greater than two times the total Personal
Property Tax Rebates paid to date under the Agreement, including the
pending payment.
4.4. The City reserves the right to modify the Payment Schedule in the event that material
change to the City's mill levy or personal property tax assessment methodology would make
the Payment Schedule provided herein inconsistent with the parties' intent that the Personal
Property Tax Rebate not exceed fifty percent(50%) of the amount of personal property tax
actually collected by the City for the personal property installed and operating as part of
Forney's business operations on the Property.
4.5. The parties agree that the City may, at its option, require Forney to make available to the
City all documents that verify the purchase of Personal Property installed or used on the
Property, including the County Assessor's certification of value. The City agrees that, except as
otherwise provided by law or applicable court order, such documents constitute privileged
information and confidential financial data within the meaning of the Colorado Open Records
Act, and, to the extent permitted by law, the City shall deny the right of inspection of such
documents to any third party without the consent of Forney.
4.6. The City, in its sole discretion, may pre-pay all or any portion of the Personal Property
Tax Rebate without penalty.
4.7. Forney assumes the entire risk that the annexation and operations on the Property will
be approved and maintain operations at the levels sufficient to generate the level of personal
property tax identified above, and the risk that all or any portion of the Personal Property Tax
Rebate may be forfeited unless the requirements of this Agreement have been satisfied. Fomey
further assumes all risk associated with legal contingencies limiting the City's obligation to
make any payments in future fiscal years and conditioning all future fiscal year obligations on
the City's discretionary appropriation of funds therefor.
4.8. It is not the parties' intent that Forney be paid or entitled to any interest or penalty on
personal property taxes paid, or any penalty or interest on Personal Property Tax Rebate
payments delayed or withheld by the City.
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4.9. The parties agree that the provisions of this Agreement do not constitute an
indebtedness of the City within the meaning of any constitutional or statutory limitation or
provision. The commitment of the City to pay the Personal Propertv Tax Rebate described in
this Agreement is from year to year only and does not constitute a mandatory payment
obligation of the City in any fiscal year beyond the present fiscal year. This Agreement does not
directly or indirectly obligate the City to make any payment of any Personal Property Tax
Rebate beyond those for which funds have been appropriated as of the date this Agreement.
The City Manager (or any other officer or employee at the time charged with the responsibility
of formulating budget proposals) shall make a good faith effort to include in the budget
proposals and appropriation ordinances proposed to the City Council, in each year prior to
expiration of this Agreement, amounts sufficient to meet the City's commitments hereunder,
subject to the conditions and contingencies set forth herein. Notwithstanding the foregoing, the
parties expressly acknowledge that the decision as to whether to appropriate such amounts is in
the discretion of the City Council.
SECTION 5. PAYMENT AND REBATE OF REAL PROPERTY TAXES
5.1. Forney shall pay to the City all real property taxes due from Forney associated with its
operations on the Property during the Effective Period.
5.2. To the extent permitted by the constitution and laws of the State of Colorado and the
Charter, including but not limited to, applicable prohibitions on multiple fiscal year obligations
and the condition that all financial obligations be contingent upon the appropriation of funds
sufficient and intended therefore by the City Council of the City, in its sole discretion, the City
agrees to rebate to Forney a portion of the City real property taxes paid for the real property
under the terms and conditions set forth in paragraph 5.3 below (the "Real Property Tax
Rebate'). If, as presently contemplated by the parties, the contingencies described in paragraph
5.3 and this Agreement are satisfied as to each of the ten payments provided for therein, and
subject to the legal limitations as noted above, the City will rebate to Forney up to the amount
shown on the Payment Schedule defined below, of City real property taxes actually paid for the
real property in the increments and for the time periods described therein, subject to a limit on
the total amount of Real Property Tax Rebate to be paid by the City of Twenty Six Thousand
Seven Hundred Twenty Dollars ($26,720) in total, and a limit on each annual payment of Two
Thousand Six Hundred Seventy-Two Dollars ($2,672).
5.3. The payments of Real Property Tax Rebates referenced in paragraph 5.2 above will be
made by the City to Forney as follows:
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5.3.1. Forney and the City have jointly created a schedule of estimated real property
taxes to be paid (the "Payment Schedule') associated with the Property as
described in this Agreement, attached hereto and incorporated herein by this
reference as Exhibit C. This Payment Schedule also provides the basis for a
schedule of real property tax rebate payments, which shall be 50% of the City
real property taxes paid by Forney up to the maximum amount set forth above.
5.3.2. The annual Real Property Tax Rebate contemplated by this Section will be paid
by December 31 of each year, with the first such annual payment scheduled for
2015 as set forth in the Payment Schedule.
5.3.3. Forney expressly agrees that no portion of the Real Property Tax Rebate will be
paid if, at the time specified for payment, Forney:
(a) has not continuously conducted it operations on the Property as described in
this Agreement; or
(b) has not actually paid to the City during the relevant tax year real property
taxes equal to or greater than two times the Real Property Tax Rebates for
that year, as set forth in the appropriate payment schedule; or
(c) has not actually paid to the City during the term of this Agreement total real
property taxes equal to or greater than two times the total Real Property Tax
Rebates paid to date under the Agreement, including the pending payment.
5.4. The City reserves the right to modify the Payment Schedule in the event that material
change to the City s mill levy or the County's real property tax assessment methodology would
make the Payment Schedule provided herein inconsistent with the parties' intent that the Real
Property Tax Rebate not exceed fifty percent (50%) of the amount of real property tax actually
collected by the City for the Property.
5.5. The parties agree that the City may, at its option, require Forney to make available to the
City all documents that verify the assessed value of the Property, including the County
Assessor's certification of value. The City agrees that, except as otherwise provided by law or
applicable court order, such documents constitute privileged information and confidential
financial data within the meaning of the Colorado Open Records Act, and, to the extent
permitted by law, the City shall deny the right of inspection of such documents to any third
party without the consent of Forney.
5.6. The City, in its sole discretion, may pre-pay all or any portion of the Real Property Tax
Rebate without penalty.
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5.7. Forney assumes the entire risk that the annexation will be approved and the Property
valuation will be sufficiently high to generate the level of real property tax identified above, and
the risk that all or any portion of the Real Property Tax Rebate may be forfeited unless the
requirements of this Agreement have been satisfied. Forney further assumes all risk associated
with legal contingencies limiting the City's obligation to make any payments in future fiscal
years and conditioning all future fiscal year obligations on the City's discretionary
appropriation of funds therefor.
5.8. It is not the parties' intent that Forney be paid or entitled to any interest or penalty on
real property taxes paid, or any penalty or interest on Real Property Tax Rebate payments
delayed or withheld by the City.
5.9. The parties agree that the provisions of this Agreement do not constitute an
indebtedness of the City within the meaning of any constitutional or statutory limitation or
provision. The commitment of the City to pay the Real Property Tax Rebate described in this
Agreement is from year to year only and does not constitute a mandatory payment obligation of
the City in any fiscal year beyond the present fiscal year. This Agreement does not directly or
indirectly obligate the City to make any payment of any Real Property Tax Rebate beyond those
for which funds have been appropriated as of the date of this Agreement. The City Manager(or
any other officer or employee at the time charged with the responsibility of formulating budget
proposals) shall make a good faith effort to include in the budget proposals and appropriation
ordinances proposed to the City Council, in each year prior to expiration of this Agreement,
amounts sufficient to meet the City's commitments hereunder, subject to the conditions and
contingencies set forth herein. Notwithstanding the foregoing, the parties expressly
acknowledge that the decision as to whether to appropriate such amounts is in the discretion of
the City Council.
SECTION 6. CITY'S RIGHT TO WITHHOLD OR OFFSET PAYMENTS
6.1. Following annexation of the Property, Forney agrees to comply with all City codes,
ordinances, resolutions and regulations, and to pay all taxes, fees and expenses due to the City
under the Code, the Land Use Code, the Petition for Annexation, or this Agreement, subject to
any variances or modifications of standards that may be granted to Forney under the Code or
the Land Use Code, and to comply with the terms and conditions of the Petition for Annexation.
If Forney is in violation of the provisions of the Code, the Land Use Code, this Agreement or the
Petition for Annexation, the City will provide written notice to Forney of such violation, and
allow the Forney a period of sixty (60) days in which to cure such violation. The City may
thereafter withhold any payment of Sales Tax Rebate, Personal Property Tax Rebate, or Real
Property Tax Rebate due to Forney under this Agreement until such time as the violations are
cured or abated.
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6.2. In addition to the foregoing, the City, at its option, may, after the notice and after the
expiration of the cure period if such violations have not been cured or abated, apply any Sales
Tax Rebate, Personal Property Tax Rebate, or Real Property Tax Rebate that would otherwise be
payable to Forney under this Agreement to any unpaid amounts theretofore due and payable to
the City-by Forney under this Agreement, the Code, the Land Use Code, or the Petition for
Annexation, in which event Forney will be credited with the full amount of any such payments.
SECTION 7. RECORDS AND AUDITS
7.1. Forney must keep true, accurate and complete records of all equipment and personal
property installed and operated on the Property and identifying and document all equipment
and Personal Property installed or operated on the Property, which records will be available for
inspection by the City without unreasonable delay and without City expense. Forney agrees
that the City has the right, through its duly authorized agents or representatives, to examine all
.such records upon ten (10) days notice at all reasonable times, for the purpose of determining
the accuracy and propriety of the financial representations which have been made by Forney as
well as the right to inspect and inventory the Personal Property on the Property in order to
confirm that the same is in place and in use as required in connection with any rebate
hereunder. This right of review and inspection exists solely to determine Forney's compliance
with this Agreement and terminates upon termination of the later of the City's payments of
Sales Tax Rebate as provided in Section 3 of this Agreement, the payments of Personal Property
Tax Rebates as provided in Section 4 of this Agreement, and the payments of Real Property Tax
Rebates as provided in Section 5 of this Agreement. In the event that the City becomes the
custodian of any such records which may contain trade secrets or confidential or proprietary
information, and are so marked, the City will, to the extent permitted by law, protect the
confidentiality of such information and deny any request for inspection of such records.
7.2. The City will keep, or cause to be kept, true, accurate and complete records of all
calculations relating to the Sales Tax Rebate; the Personal Property Tax Rebate; the Real
Property Tax Rebate; and such other calculations, allocations and payments required by this
Agreement, and will make such records available for inspection by Forney upon ten (10) days
notice at all reasonable times, to the extent permitted by law.
SECTION 8. RESTRICTIONS ON ASSIGNMENT
8.1. The qualifications of Forney to accomplish the objectives of the City hereunder are of
particular concern to the City. Therefore, no voluntary or involuntary successor in interest of
Forney shall acquire any rights or powers under this Agreement except as expressly set forth
herein and Forney will not assign all or any part of this Agreement, except with the prior
written approval of the City Council, in its sole discretion; provided, nothing herein shall
prevent Forney from ceasing or modifying its operations or selling the Property.
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8.2. Forney must notify the City within fifteen (15) days of any and all changes whatsoever
in the identity of the parties in control of Fomev, or the degree thereof, of which it or any of its
officers have been notified or otherwise have knowledge or information.
SECTION 9. EVENTS OF DEFAULT; REMEDIES
9.1. Default or an event of default by Forney mean one or more of the following events:
9.1.1 Any representation or warranty made in this Agreement by Forney was
materially inaccurate when made or shall prove to be materially inaccurate;
9.1.2 Forney assigns or attempts to assign this Agreement in violation of Section 8 of
this Agreement; or
9.1.3 Forney fails to substantially observe or perform any other material covenant,
obligation or agreement required under this Agreement.
9.2. In order to exercise any remedy for default hereunder, upon the occurrence of any event
of default, the City shall provide written notice to Forney. Forney must immediately proceed to
cure or remedy such default, and in any event, such default shall be cured within thirty (30)
days after receipt of the notice, or such longer time as the City and Forney agree in writing.
Upon the failure of Forney to so cure any such default, the City shall have all remedies available
to it, in law or in equity, excluding specific performance.
9.3. Default or an event of default by the City shall mean one or more of the following
events:
9.3.1. Any representation or warranty made in this Agreement by the City was
materially inaccurate when made or shall prove to be materially inaccurate; or
9.3.2. The City fails to perform any material covenant, obligation or agreement
required of it under this Agreement.
9.4. Upon the occurrence of any event of default, Forney will provide written notice to the
City. The City must immediately proceed to cure or remedy such default, and in any event,
such default shall be cured within thirty (30) days after receipt of the notice, or such longer time
as the City and Forney agree in writing. Upon the failure of the City to so cure any such
default, Forney will have all remedies available to it, in law or in equity excluding specific
performance.
13
SECTION 10. NOTICES
10.1. All notices required or permitted hereunder shall be in writing and shall be effective
upon mailing, deposited in the United States Mail, postage prepaid, and addressed to the
intended recipient as follows. Any party can change its address by written notice to the other
given in accordance with this paragraph.
10.1.1. City of Fort Collins: City of Fort Collins
Attention: City Manager
300 LaPorte Avenue, PO Box 580
Fort Collins, CO 80522-0580
10.1.2. With a copy to: City of Fort Collins
Attention: City Attorney
300 LaPorte Avenue, PO Box 580
Fort Collins, CO 80522-0580
10.1.3. Forney: Forney Industries, Inc.
Attention: Steve Anderson, President
1830 LaPorte Avenue
Fort Collins, Colorado 80521
10.1.4. With a copy to: Forney Industries, Inc.
Attention: Kyle Pettine, COO
1830 LaPorte Avenue
Fort Collins, Colorado 80521
SECTION 11. MISCELLANEOUS
11.1. Binding Effect. This Agreement inures to the benefit of and is binding upon the
City and Forney and Forney's assignees which are permitted pursuant to Section 8 of this
Agreement.
1.1.2. No Third Partv Beneficiaries. The City is not obligated or liable under the terms of this
Agreement to any person or entity not a party hereto except any assignee permitted pursuant to
Section 8 of this Agreement. Further, the City is not bound by any contracts or conditions that
Forney may negotiate with third parties.
14
11.3. Interpretation Turisdiction and Venue. This Agreement is being executed and
delivered and is intended to be performed in the State of Colorado, and the laws of Colorado
govern the validity, construction, enforcement and interpretation of this Agreement. Exclusive
jurisdiction and venue for resolution of any dispute arising hereunder will be in the Larimer
County, Colorado District Court.
11.4. Entire Agreement. This Agreement embodies the whole agreement of the parties
concerning financial assistance by the City. Although it is anticipated there will be at least one
other agreement governing annexation issues related to the Property, there are no promises,
terms, conditions, or obligations other than those contained herein exist with respect to the
financial assistance package. This Agreement supersedes all provisions, communications,
representations, or agreement, either verbal or written, between the parties with respect to the
financial assistance package.
11.5. Waiver of Breach. A written waiver by either party to this Agreement of the breach
of any term or provision of this Agreement will not operate or be construed as a waiver or any
subsequent breach by another party.
11.6. Article and Section Captions.The captions of the articles and sections of this Agreement
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.
11.7. City and Fomev Not Partners. Notwithstanding any language in this Agreement,
the City is not a member, partner, or joint venturer of Forney, and the City shall not be
responsible for any debt or liability of Forney or its contractors or agents. Forney is not
responsible for any debt or liability of the City or their contractors or agents.
11.8. Severability. If any portion or portions of this Agreement are determined to be illegal
or unenforceable, the remainder of this Agreement will not be affected thereby and will remain
in full force and effect as if such illegal or unenforceable portion or portions did not exist. If all
or any portion of the payments required by the terms of this Agreement are determined, by a
court of competent jurisdiction in a final non-appealable judgment, to be contrary to public
policy or otherwise precluded, and if the decision of such court clearly indicates how the
payments may be made differently and in a manner that is legal, valid and enforceable, then the
Parties will utilize their reasonable, best, good faith efforts to promptly restructure and/or
amend this Agreement in accordance with such court decision, or to enter into a new
agreement, to assure, to the extent legally permissible, that all payments are made to Forney as
contemplated by this Agreement.
11.9. Originals. This Agreement may be simultaneously executed in any number of
counterparts, each of which will be deemed original but all of which constitute one and the
same Agreement.
15
11.10. Toint Draft. The parties agree they drafted this Agreement jointly with each having the
advice of legal counsel and an equal opportunity to contribute to its content.
IN WITNESS WHEREOF, the City and Forney have executed this Agreement as of the
date first above written.
CITY OF FORT COLLINS, COLORADO
a municipal corporation
By:
Darin A. Atteberry, City Manager
Attest:
City Clerk
Approved as to form:
Assistant City Attorney
FORNEY INDUSTRIES, INC.
a Colorado corporation
By:
Name and title
State of )
)ss.
County of )
The foregoing was acknowledged before me this day of
2012, by as Forney Industries, Inc., a Colorado
corporation.
Witness my hand and official seal.
My commission expires:
Notary Public
16
EXHIBIT A
Parcels of land located in the Northwest Quarter of Section 10, Township 7 North, Range 69
West of the 6th Principal Meridian, County of Larimer, State of Colorado, and being more
particularly described as follows:
Commencing at the Center Quarter Comer of Section 10 and assuming the South line of the
Northwest Quarter of Section 10 to bear North 89014'44" West, with all other bearings herein
relative thereto;
Thence, North 89°14'44" West, 61.5.00 feet to the Southwest comer of Radio City Annexation,
said point also being on the North line of Frey Annexation and said point being the POINT OF
BEGINNING;
Thence along said North line of Frey Annexation, North 89°14'44" West, 710.01 feet to a point on
the East line of Springer Farm Annexation; thence along said East line, North 00°38'55"
East, 435.71 feet to the North line of Springer Farm Annexation; thence along said North line,
North 89°14'49" West, 330.72 feet to a point on the East line of Canfield Annexation; thence
along said East line, North 00°42'46" East, 656.12 feet; thence departing said East line, South
89°24'33" East, 1320.17 feet; thence, South 00023'46" West, 377.97 feet; thence, North 89°14'44"
West, 285.00 feet; thence, South 00°23'46" West, 164.64 feet to the Northwest comer of Radio
City Annexation; thence along the West line of Radio City Annexation, South 00°23'46" West,
308.17 feet, thence departing said West line, North 87°54'20" West, 249.40 feet, thence, South
07037'19" East, 72.44 feet; thence, North 89°14'44" West, 86.39 feet; thence, North 00°23'46" East,
21.00 feet; thence, North 89°14'44" West, 83.00 feet; thence, South 00°23'46"West, 50.00 feet;
thence, North 89°14'37"West, 85.00 feet; thence, South 00°23'46" West, 120.00 feet to a point on
the North right-of-way line of Laporte Avenue; thence along said North right-of-way line,
South 89°14'44" East, 493.58 feet to a point on the West line of Radio City Annexation; thence
along said West line, South 00°23'46" West, 30.00 feet to the POINT OF BEGINNING.
Said parcel of land contains 23.160 acres, more or less (±), and is subject to any rights-of-way or
other easements of record or as now existing on said described parcel of land.
17
Exhibit A
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18
Exhibit B
Financial Services
City of Sales Tax Division
t Collins Fort North Mason Street,2"'Flmr
P.O.Box 580
Col
Fort Collins,CO 80522
970.221.6780
070 221.6782-fax
rcgov conil;alee6+x
SALES TAX REBATE APPLICATION
Cormpalry Name: Phone Number
Nlailin,2 Adchess: Fort Collins License Number:
Email.address:
Colttact Person:
Rebate htfonuation:
Rebate Deal':
Purchase price of eligible purchases:
Amount of sales tax rebate(2.25%only):
I hereby authouze the City to review and consider sales and use tax records.vendor records.contract and otter
infonmrion available regarding the company's eligibility for a rebate under this program.
I certify that the company requesturg dus rebate is in compliance with all Federal.State and local la\vs and
reguluions; for the facility located hr Fat Collins. I also certify that the company is current with all Cite of Fort
Collins contracntal.paylrtem and sales and use tax obligations.
I declare under penalty of perjury that this claim(including anv accompmrviug schedules and statements)has been
exannxd by are mud to the best of my knowledge and belief is trite amd made in good faith for the stated purpose.
Further.I represent and watrant that I have the necessary authority to execute this application on behalf of the
company, and to make the above certifications.muhorizalioms.and deckuarion.
A claim by an agent must be accompanied by power of attomey.
Sigttanue of person other than taxpayer preparutg rebate Date
Signature of taxpayer Date
Exhibit B
INSTRUCTIONS:
1. A lis[ing of puuchases must bz subudttzd w'idt the applica[iou and nn st include the folio eiu�infonna[ion:
• Vendor name
• hrvoice number
• hnoice dare
• Purchase price
• Amount of Foil Collins sales taz paid
2. You are not required to submit copies of the invoices at the time the rebate is requested. However, invoices
will be requested based on the list of purchases submitted.
3. Applications must be submitted uo later than March 31 of the year following the date of puu'dliase.
20
Exhibit C
Forney Business Assistance Rebate Analysis
Year Taxes are Paid 2012 2013 2014 201S 2016 2017 2018 2019 2020 2021 2022 2023 2024
Sales Tax Totals
Sales Tax Collected 24,000 24,000 24,000 24,000 24,000 24,000 24,000 24,000 24,000 24,000 24,000 24,000 24,000 312,000
Sales Tax Rebate Paid - 3,750 15,000 1S,000 11,250 45,000
Personal Property Tax
Personal Property Collected 798 798 798 798 798 798 798 798 798 798 798 8,778
Personal Property Rebate Paid 399 399 399 399 399 399 399 399 399 399 3,990
Real Property Tax
Real Property Collected 5,344 5,344 5,344 5,344 5,344 5,344 S,344 5,344 5,344 S,344 5,344 S8,784
Real Property Rebate Paid 2,672 2,672 2,672 2,672 2,672 2,672 2,672 2,672 2,672 2,572 26,720
Total Taxes Paid 24,000 24,000 30,142 30,142 30,142 30,142 30,142 30,142 30,142 30,142 30,142 30,142 30,142 379,562
Total Taxes Rebated 3,750 15,000 18,071 14,321 3,071 3,071 3,071 3,071 3,071 3,071 3,071 3,071 75,710