HomeMy WebLinkAbout2011-066-07/19/2011-APPROVING AN AGREEMENT BETWEEN THE CITY AND AVAGO TECHNOLOGIES US, INC. TO PROVIDE BUSINESS INVESTME i
RESOLUTION 2011-066
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROVING AN AGREEMENT BETWEEN THE CITY AND
AVAGO TECHNOLOGIES US, INC. TO PROVIDE
BUSINESS INVESTMENT ASSISTANCE
FOR THE BUILDING 4 RETROFIT
WHEREAS,Avago Technologies US,Inc. ("Avago")will be modifying a building located
on its business campus by retrofitting approximately 10,000 square feet for use as a wafer fabrication
facility (the "Project'); and
WHEREAS, the Project will enable the City to better maintain and attract high-paying
primary jobs in the City; and
WHEREAS, Avago estimates that it will invest over $80.2 million in the Project; and
1
WHEREAS,Avago anticipates that the Project will create approximately 92 jobs paying an
annual average salary of$49,800, which would provide significant economic development benefit
to the community at large; and
WHEREAS, according to preliminary estimates, Avago will also pay City fees and taxes
related to the construction of the Project in the approximate amount of$448,000; and
WHEREAS, City staff has been working with Avago to discuss ways in which the City can
provide financial assistance to the Project that will enhance the likelihood that the Project will be
pursued; and
WHEREAS, City staff has prepared for City Council's consideration a proposed agreement
between the City and Avago (the "Agreement'), which Agreement sets forth the terms and
conditions upon which financial assistance will be provided to Avago by the City and is attached as
Exhibit A; and
WHEREAS, the Project is anticipated to increase annual property tax revenue for the City
by approximately$138,000 over the ten-year term of the Agreement; and
WHEREAS, the City Council has determined that providing financial assistance to the
Project 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 Avago,
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 3. 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 19th
day of July A.D. 2011.
G�
ayor
OF FORTCO
ATTEST: ��� °•�l�
• •2
G. L 1N
City Clerk C��ORA�O
EXHIBIT A
BUSINESS INVESTMENT AGREEMENT
FOR F,CONOMIC DEVELOPMENT
RELATED TO AVAGO TECHNOLOGIES BUILDING 4 RETROFIT
l
THIS AGREEMENT is entered into this day of 2011,by and
between the City of Fort Collins, Colorado, a home rule municipal corporation (the "City"), and
AVAGO Technologies US Inc., , a Delaware Corporation ("AVAGO").
RECITALS
WHEREAS,AVAGO is the owner of property located at 4380 Ziegler Road in the City
that is more fully described in Exhibit A and incorporated herein by this reference(the
"Property");and
WHEREAS, AVAGO has committed to redeveloping the Property by retrofitting one of
the buildings on the Property to include a 10,000 square foot expansion wafer fabrication facility
within that building(the "Project");and
WHEREAS, the building on the Property to be retrofitted is known as Building 4 and is
identified on Exhibit A as BLDG 4;and
WHEREAS, the Project will consist of a construction expansion and remodel in addition
to an investment in equipment;and
WHEREAS, Project will enable the City to better maintain its place as the regional retail
and business center of Northern Colorado in the face of competing facilities that could
otherwise draw significant employment opportunities and retail sales revenues out of the Fort
Collins community; and
WHEREAS, AVAGO estimates that the total investment in the Project will total more
than$80 million (including both construction and equipment purchases)and create
approximately 92 jobs earning salaries ranging from$40,000 to $100,000 annually, and that will
provide significant economic benefit to the community at large;and
WHEREAS, the City's Economic Health Office has concluded that the Project will
generate a substantial increase in tax revenue for the City consisting of approximately(i)
$323,000 in construction use tax;and (ii)$81,500 annually in new personal property tax in the
first ten years and$163,000 in new property tax in the subsequent years;and
WHEREAS, according to the Economic Health Office, the Project will prevent high-
paying primary jobs from leaving Fort Collins to other sites in Northern Colorado and
elsewhere; and
WHEREAS, according to the Economic Health Office, the Project will bring a type of
chip manufacturing to the City that has primarily occurred off-shore;and
11
WHEREAS, AVAGO has requested that the City enter into a business investment
agreement for economic development;and
WHEREAS,based on AVAGO's representations that the Project will (i)be a high quality
wafer fabrication facility that will be owned and operated by AVAGO, (ii) generate new
primary jobs, and (iii)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 2011-_on , 2011, that it is in the best interests
of the City to provide a package of financial assistance for the Project consisting of two
components: the rebate of new use tax revenues generated by the Project and the rebate of
personal property tax on new Eligible Equipment installed in Building 4 as part of the Project;
and
WHEREAS, the City Council has further determined, through the adoption of
Resolution 2011-_that providing the financial assistance described in this Agreement to
AVAGO 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 Use Tax Rebate means the application process for a use tax rebate using City
approved forms consistent with the form attached as Exhibit B.
AVAGO means AVAGO Technologies US Inc., a Delaware Corporation.
Building 4 means that building located at 4380 Ziegler Road,Building 4.
Certificate of Occupancy has the same meaning as set forth in the City of Fort Collins Land Use
Code.
Charter means the Home Rule Charter of the City.
CLty means the City of Fort Collins,Colorado, a home rule municipal corporation.
Code means the Code of the City of Fort Collins.
2
County Assessor means the Larimer County Assessor.
Development Agreement means that agreement required when plans, profiles and specification
have been approved by the City pursuant to the Land Use Code.
Eligible Equipment means new manufacturing equipment and electronic equipment installed
no later than December 31,2012, and that is necessary for the construction and operation of the
Project.
Land Use Code means the Fort Collins Land Use Code.
Project means AVAGO's retrofit of existing Building 4 by 10,000 square feet for use as a wafer
fabrication facility and other improvements that provide significant energy savings and
represented on page 2 of Exhibit A as Area of Work.
Wafer Fabrication Facility and Facili mean a 10,000 square foot wafer fabrication facility built
in Building 4 as a result of the Project.
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, and assuming such
authority, the City Council has properly and regularly authorized the City to
enter into the Agreement.
2.2. AVAGO represents and covenants that:
2.2.1. AVAGO 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. AVAGO 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 AVAGO in accordance with
its terms.
3
2.2.3. The consummation of transaction contemplated by this Agreement will not
violate any provision of the governing documents of AVAGO or, to its
knowledge, constitute a default or result in the breach of any term or provision
of any contract or agreement to which AVAGO 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 AVAGO with respect to the Project or this Agreement,
and AVAGO is unaware of that any such litigation, proceeding, or investigation
has been threatened.
2.2.5. AVAGO will submit a Site Plan to the City in accordance with all applicable
procedures set forth in the Land Use Code. AVAGO will redevelop the Property
with appropriate care and diligence and cause the Project to be constructed in a
manner consistent with the Site Plan,as approved in accordance with the Land
Use Code.
2.2.6. In redeveloping the Property and Building 4, AVAGO 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. AVAGO intends to operate, or cause to operate,Building 4 as a high quality
wafer fabrication facility for a period of not less than ten years following the
earlier date of the issuance of a Certificate of Occupancy or December 31,2012.
2.2.8. AVAGO will cooperate with the City in taking reasonable actions to defend
against any litigation brought by a third party concerning the Project or this
Agreement.
SECTION 3. REIMBURSEMENT OF USE TAX REVENUES
3.1. The City will collect the Use Tax Revenues from AVAGO's initial Eligible Equipment
investment associated with the Project and retrofit of Building 4 in a manner consistent with the
City's overall efforts to collect use tax revenues. Nothing in this Agreement will be construed as
imposing upon the City any obligation to exert special efforts in the collection of these revenues.
4
3.2. To the extent permitted by the constitution and laws of the State of Colorado and the
Charter, the City will rebate to AVAGO a portion of the Use Tax Revenues under the terms and
conditions set forth in paragraph 3.3.1,3.3.2, and 3.3.3 below. If, as presently contemplated by
the parties, the contingencies described in those paragraphs are satisfied, the total amount of
Use Tax Revenues to be paid by the City will not exceed One Million Seven Hundred Twenty-
Five Thousand Dollars($1,725,000) (the "Maximum Use Tax Reimbursement') for the period
beginning with the execution of this Agreement and ending on December 31, 2013. The
Application for the Use Tax Rebate on Eligible Equipment shall be filed between August 1 and
December 31 of each year for which a rebate eligible.
3.3. The payments of Use Tax Revenues referenced in paragraph 3.2 above will be made by
the City to AVAGO after the City issues a certificate of occupancy for the Project and AVAGO
has actually generated and remitted to the City use tax revenues for the minimum periods of
time specified below. If either of these contingencies has not been satisfied on or before the
dates specified, the payments will not be made.
3.3.1. A payment will be due and payable on March 31,2012 (the "First Payment')
based upon an Application for Use Tax Rebate made by AVAGO for use tax
revenues remitted by AVAGO to the City between the execution of this
Agreement and December 31,2011, provided, however that if AVAGO has not
remitted use tax revenues to the City during this period, the First Payment will
not be made.
3.3.2. A payment will be due and payable on March 31, 2013 (the "Second Payment")
based upon an Application for Use Tax Rebate made by AVAGO for use tax
revenues remitted by AVAGO to the City between January 1, 2012 and
December 31, 2012, provided, however that if AVAGO has not remitted use tax
revenues to the City during this period, the Second Payment will not be made.
3.3.3. A payment will be due and payable on March 31, 2014 (the "Final Payment')
based upon an Application for Use Tax Rebate made by AVAGO for use tax
revenues remitted by AVAGO to the City between January 1,2013 and
December 31,2013, provided,however that(i)the equipment for which the
rebate is requested will have been delivered to the Property no later than
December 31,2012; (2)that this rebate request for that equipment is reduced by
any rebate already returned to Avago or waived due the failure to remit use tax
as required by 3.3.2;and (3)if AVAGO has not remitted use tax revenues to the
City during this period, the Final Payment will not be made.
3.4. The City, in its sole discretion, may pre-pay any amount of Use Tax Revenues without
prepayment penalties.
5
3.5. The City's payment obligation under this Section shall be limited to the amount of the
Use Tax Revenues indicated in paragraph 3.2 above. AVAGO agrees to assume the entire risk
that the Project will be unable to begin and remit use tax on new manufacturing equipment
invested in the Project by December 31,2013 to qualify for the Maximum Use Tax
Reimbursement.
3.6. Interest earned, if any, on Use Tax Revenues held by the City until payment is made to
AVAGO will belong to the City.
3.7. Notwithstanding the Maximum Use Tax Reimbursement, the City will not be required
to pay to AVAGO any Use Tax Revenues greater than that actually collected and remitted to the
City. AVAGO acknowledges that the generation of Use Tax Revenues is entirely dependent on
AVAGO's investment of Eligible Equipment in the Project and Building 4 and agrees that the
City is in no way responsible for the amount of Use Tax Revenue actually collected.
3.8. The parties agree that the obligations of the City do not constitute an indebtedness of the
City within the meaning of any constitutional or statutory limitation or provision. The
obligations of the City for payment of the Use Tax Revenues under this Agreement are from
year to year only and do 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 payments of Use Tax Revenues beyond those appropriated for any fiscal year
in which this Agreement is in effect. The City Manager(or any other officer or employee at the
time charged with the responsibility of formulating budget proposals)is hereby directed to
include in the budget proposals and appropriation ordinances submitted to the City Council, in
each year prior to expiration of this Agreement, amounts sufficient to meet its obligations
hereunder,but only if it receives such amounts in the form of Use Tax Revenues,it being the
intent, however, that the decision as-to whether to appropriate such amounts is in the discretion
of the City Council.
SECTION 4. REIMBURSEMENT OF PERSONAL PROPERTY TAX REVENUES
4.1. The City shall collect the Personal Property Tax Revenues from the Project in a manner
consistent with the City's overall efforts to collect personal property tax revenues. Nothing in
this Agreement will be construed as,imposing upon the City any obligation to exert special
efforts in the collection of these revenues.
4.2. To the extent permitted by the constitution and laws of the State of Colorado and the
Charter, the City will pay AVAGO a portion of the Personal Property Tax Revenues under the
terms and conditions set forth in paragraph 4.3 below. If, as presently contemplated by the
parties, the contingencies described in paragraph 4.3 are satisfied as to each of the ten payments
provided for therein, the total amount of Personal Property Tax Revenues to be paid by the City
will not exceed Eight Hundred Seventeen Thousand Dollars ($817,000) and the annual
payments will not exceed Eighty One Thousand Seven Hundred Dollars ($81,700).
6
4.3. The payments of Personal Property Tax Revenues referenced in paragraph 4.2 above
will be made by the City to AVAGO as follows:
4.3.1. The assessed personal property value certified by the County Assessor for tax
year 2010 will be the baseline measurement("Baseline Personal Property Tax").
4.3.2. For ten consecutive years, beginning with tax year 2011, fifty percent of any
increase in the assessed personal property certified by the County Assessor for
the then current year over the Baseline Personal Property Tax will be reimbursed
by the City to AVAGO.
4.3.3. The payments contemplated by this Section will be paid by December 31 of each
year, starting in 2012,.for the previous tax year.
4.3.4. The Personal Property Tax Revenues will only be eligible for reimbursement as
described above if AVAGO continuously operates Building 4 as an Wafer
Fabrication Facility as described in this Agreement and has actually generated
and remitted to the City personal property tax revenues for Building 4.
4.4. The parties agree that no less than twice a year the City may require AVAGO to make
available to the City all documents that verify the purchase of personal property installed in
Building 4, including the County Assessor's certification of value.The City agrees that 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 AVAGO.
4.5. The City, in its sole discretion,may pre-pay any amount of Personal Property Tax
Revenues without prepayment penalties.
4.6. The City's payment obligation under this Section shall be limited to the amount of the
Personal Property Tax Revenues indicated above. AVAGO agrees to assume the entire risk that
the Project will be unable to begin and maintain operations at the levels sufficient to generate
the level of personal property tax identified above and that one or more payments will be
forfeited unless the requirements of this Agreement have been satisfied.
4.7. Interest earned, if any, on Personal Property Tax Revenues held by the City until
payment is made to AVAGO will belong to the City.
7
4.8. The parties agree that the obligations of the City hereunder do not constitute an
indebtedness of.the City within the meaning of any constitutional or statutory limitation or
provision. The obligations of the City for payment of the Personal Property Tax Revenues
under this Agreement are from year to year only and do 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 payments of Personal Property Tax
Revenues beyond those appropriated for any fiscal year in which this Agreement is in effect.
The City Manager(or any other officer or employee at the time charged with the responsibility
of formulating budget proposals) is hereby directed to include in the budget proposals and
appropriation ordinances submitted to the City Council, in each year prior to expiration of this
Agreement, amounts sufficient to meet its obligations hereunder,but only if it receives such
amounts in the form of Personal Property Tax Revenues, it being the intent, however, that the
decision as to whether to appropriate such amounts is in the discretion of the City Council.
SECTION 5. CITY'S RIGHT TO WITHHOLD OR OFFSET PAYMENTS
5.1. AVAGO 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 City's Land Use
Code or this Agreement, subject to any variances or modifications of standards that may be
granted to AVAGO under the Code or the City's Land Use Code, and to comply with the terms
and conditions of the Development Agreement. If AVAGO is in violation of the provisions of
the Code, the City's Land Use Code, this Agreement or the Development Agreement, the City
will provide written notice to the Developer of such violation, and allow the AVAGO a period
of ninety(90) days in which to cure such violation. The City may thereafter withhold any
payments of Use Tax Revenues or Personal Property Tax Revenues due to AVAGO under this
Agreement until such time as the violations are cured or abated.
5.2. 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 Use
Tax Revenues or Personal Property Tax Revenues that would otherwise be payable to AVAGO
under this Agreement to any unpaid amounts theretofore due and payable to the City by
AVAGO under this Agreement, the Code, the Land Use Code, or the Development Agreement,
in which event AVAGO will be credited with the full amount of any such payments.
SECTION 6. RECORDS AND AUDITS
6.1. AVAGO must keep true, accurate and complete records of all equipment installed and
operated in Building 4,which records will be available for inspection by the City without
unreasonable delay and without expense. AVAGO 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 AVAGO. This right of review terminates
8
upon termination of the later of the City's payments of Use Tax Revenues as provided in Section
3 of this Agreement and the payments of Personal Property Tax Revenues as provided in
Section 4 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.
6.2. The City will keep, or cause to be kept, true, accurate and complete records of all
calculations relating to the Sales Tax Revenues; the Personal Property Tax Revenues; interest
credited to these amounts;and such other calculations, allocations and payments required by
this Agreement, and will make such records available for inspection by AVAGO upon ten (10)
days notice at all reasonable times, to the extent permitted by law.
SECTION 7. RESTRICTIONS ON ASSIGNMENT
7.1. The qualifications of AVAGO are of particular concern to the City. Therefore, no
voluntary or involuntary successor in interest of AVAGO shall acquire any rights or powers
under this Agreement except as expressly set forth herein and AVAGO will not assign all or any
part of this Agreement except as follows:
7.1.1. with the prior written approval of the City Council; or
7.1.2. as collateral to a lender in connection with the financing of the Project; or
7.1.3. after the City's payment obligations as described in Sections 3 and 4 of this
Agreement have terminated.
7.2. AVAGO must notify the City within fifteen (15)days of any and all changes whatsoever
in the identity of the parties in control of AVAGO, or the degree thereof,of which it or any of its
officers have been notified or otherwise have knowledge or information.
SECTION 8. EVENTS OF DEFAULT; REMEDIES
8.1. Default or an event of default by AVAGO mean one or more of the following events:
8.1.1. Any representation or warranty made in this Agreement by AVAGO was
materially inaccurate when made or shall prove to be materially inaccurate;
8.1.2. AVAGO assigns or attempts to assign this Agreement in violation of Section 7 of
this Agreement;or
9
8.1.3. AVAGO fails to substantially observe or perform any other material covenant,
obligation or agreement required under this Agreement.
8.2. Upon the occurrence of any event of default,the City shall provide written notice to
AVAGO. AVAGO 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 AVAGO agree in writing. Upon the failure of AVAGO to so cure any such
default, the City shall have all remedies available to it, in law or in equity, including,but not
limited to, specific performance.
8.3. Default or an event of default by the City shall mean one or more of the following
events:
8.3.1. Any representation or warranty made in this Agreement by the City was
materially inaccurate when made or shall prove to be materially inaccurate;
8.3.2. The City fails to pay the proceeds of the Sales Tax Revenues or the Personal
Property Tax Revenues as and when provided in this Agreement(except to the
extent such failure is the result of the action, inaction or failure of AVAGO to
document liability for, collect, account for or pay the Sales Tax Revenues or
Personal Property Tax Revenues).
8.3.3. The City fails to pay or perform any other material covenant, obligation or
agreement required of it under this Agreement.
8.4. Upon the occurrence of any event of default,AVAGO 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 AVAGO agree in writing. Upon the failure of the City to so cure any such
default,AVAGO will have all remedies available to it, in law or in equity, including,but not
limited to, specific performance. -
SECTION 9. NOTICES
9.1. 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.
9.1.1. City of Fort Collins: City of Fort Collins
Attention: City Manager
300 LaPorte Avenue, PO Box 580
Fort Collins, CO 80522-0580
9.1.2. With a copy to: City of Fort Collins
10
Attention: City Attorney
300 LaPorte Avenue, PO Box 580
Fort Collins, CO 80522-0580
9.1.3. AVAGO: AVAGO Technologies
Attention: General Counsel
350 W. Trimble Road
San Jose, California 95131
9.1.4. With a copy to: Steve Wolley
AVAGO Technologies
4380 Ziegler Rd.
Fort Collins, CO 80525
SECTION 10. MISCELLANEOUS
10.1. Binding Effect. This Agreement inures to the benefit of and is binding upon the
City and AVAGO and AVAGO's assignees which are permitted pursuant to Section 7 of this
Agreement.
10.2. No Third Party 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 7 of this Agreement. Further, the City is not bound by any contracts or conditions that .
AVAGO may negotiate with third parties related to the Project.
10.3. 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.
10.4. Entire Agreement. This Agreement embodies the whole,agreement of the parties
concerning financial assistance by the City the Project. Although it is anticipated there will be at
least one other agreement governing general development issues related to the Project, 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
10.5. 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.
10.6. 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.
10.7. City and AVAGO Not Partners. Notwithstanding any language in this Agreement,
the City is not a member, partner, or joint venturer of AVAGO, and the City shall not be
responsible for any debt or liability of AVAGO or its contractors or agents. AVAGO is not
responsible for any debt or liability of the City or their contractors or agents.
10.8. 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 AVAGO
as contemplated by this Agreement,
10.9. 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.
10.10. Joint 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 AVAGO have executed this Agreement as of the
date first above written.
Signatures on following page.
12
CITY OF FORT COLLINS, COLORADO
a municipal corporation
By:
Darin A. Atteberry, City Manager
Attest:
City Clerk
Approved as to form:
Assistant City Attorney
AVAGO TECHNOLOGIES US Inc.
a Delaware corporation
By:
Name and title
State of )
)ss.
County of )
The foregoing was acknowledged before me this day of
2011,by as AVAGO Technologies US Inc., a
Delaware corporation.
Witness my hand and official seal.
My commission expires:
Notary Public
13
EXHIBIT A
PROPERTY DESCRIPTION:
LOT 2, PRESTON-KELLEY 2ND SUBDIVISION, AS PER THE PLAT THEREOF RECORDED
OCTOBER 28, 1999 AT RECEPTION NO. 99093260, COUNTY OF LARIMER, STATE OF
COLORADO.
A TRACT OF LAND BEING PART OF PRESTON-KELLEY SUBDIVISION AND BEING LOCATED IN
THE SOUTHWEST QUATER OF SECTION 33, TOWNSHIP 7 NORTH, RANGE 68 WEST OF THE
61H PRINCIPAL MERIDIAN, CITY OF FORT COLLINS, COUNTY OF LARIMER, STATE OF
COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BASIS OF BEARINGS:THE WEST LINE OF THE SOUTHWEST QUARTER OF SECTION 33, BEING
MONUMENTED AT THE SOUTHWEST CORNER BY A LARIMER COUNTY BRASS CAP, AND AT
THE WEST QUARTER CORNER BY A ALUMINUM CAP STAMPED (LS 17497) WITH A LINE
BETWEEN ASSUMED TO BEAR SOUTH 00'00'11" WEST, AND WITH ALL BEARINGS HEREIN
RELATIVE THERETO.
COMMENCING AT THE WEST QUARTER CORNER OF SAID SECTION 33, THENCE ALONG THE
WEST LINE OF SAID SOUTHWEST QUARTER SOUTH 00'00'11" WEST 381.60 FEET, THENCE
DEPARTING SAID WEST LINE, NORTH 89'50'11"" EAST 50.00 FEET TO A POINT ON THE
EAST RIGHT OF WAY FOR SOUTH COUNTY ROAD 9 (AKA: ZIEGLER ROAD) SAID POINT
ALSO BEING THE NORTHWEST CORNER OF LOT 2, PRESTON-KELLEY 2ND SUBDIVISION,
AND THE POINT OF BEGINNING: THENCE ALONG THE NORTH LINE OF SAID LOT 2 THE
FOLLOWING THREE (3) COURSES: 1) NORTH 89'50'11" EAST 1152.66 FEET; 2) SOUTH
45'09'49" EAST 70.71 FEET; 3) NORTH 89'50'11" EAST 150.25 FEET TO THE NORTHEAST
CORNER OF LOT 2 , ALSO BEING THE NORTHWEST CORNER OF LOT 1, SAID
PRESTON-KELLEY 2ND SUBDIVISION, THENCE ALONG THE WEST LINE OF SAID LOT 1 AND
THE EAST LINE OF SAID LOT 2, THE FOLLOWING EIGHTEEN (18) COURSES: 1) SOUTH
00'09'49' EAST 510.80 FEET; 2) NORTH 90'00'00" EAST 206.87 FEET; 3) SOUTH
00'15'16" WEST 197.99 FEET; 4) SOUTH 38'46'40" EAST 43.84 FEET; 5) SOUTH 00'19'44"
WEST 34.65 FEET; 6) SOUTH 89'35'37" EAST 56.33 FEET; 7) SOUTH 00'19'44" WEST
74.32 FEET; 8) SOUTH 89'38'43" EAST 73.00 FEET; 9) SOUTH 00'21'35" WEST 276.48
FEET; 10) NORTH 89'27'02" WEST 132.76 FEET; 11) SOUTH 39'23'29" WEST 95.28 FEET;
12) NORTH 89'40'59" WEST 47.66 FEET; 13) SOUTH 00'23'51" WEST 180.46 FEET; 14)
NORTH 90'00'00" WEST 64.17 FEET; 15) SOUTH 00'08'54" WEST 135.19 FEET; 16) SOUTH
87'12'54" WEST 86.71 FEET; 17) SOUTH 22'02'40" WEST 345.23 FEET; 18) SOUTH
00'01'49" EAST 262.22 FEET TO A POINT ON THE NORTH RIGHT OF WAY LINE FOR
HARMONY ROAD AS DESCRIBED AT BOOK 1814 PAGE 777 OF THE CLERK AND RECORDERS
OFFICE OF LARIMER COUNTY, THENCE ALONG SAID NORTH RIGHT OF WAY LINE THE
FOLLOWING FOUR (4) COURSES, 1) SOUTH 89'58'11" WEST 533.97 FEET, THENCE 2)
NORTH 87'50'49" WEST 131.20 FEET TO THE BEGINNING OF A CURVE, THENCE 3)
WESTERLY 502.23 FEET ALONG THE ARC OF A CURVE, CONCAVE TO THE SOUTH, SAID
CURVE HAVING A RADIUS OF 5,810.00 FEET, A CENTRAL ANGLE OF 4'57'11", AND BEING
SUBTENDED BY A CHORD BEARING SOUTH 87'29'41" WEST 502.10 FEET, THENCE 4)
NORTH 47'42'49" WEST 34.67 FEET TO A POINT ON THE AFOREMENTIONED EAST RIGHT
OF WAY FOR SOUTH COUNTY ROAD 9, THENCE ALONG SAID EAST RIGHT OF WAY LINE
NORTH 00'00'11" EAST 2143.51 FEET TO THE POINT OF BEGINNING"
SAID DESCRIBED PARCEL CONTAINS 70.101 ACRES, MORE OR LESS, AND IS SUBJECT TO
ALL EASEMENTS AND RIGHTS OF WAY OF RECORD OR EXISTING.
14
.......... ..........
C&CMRHIU-
A
IS
7
L
qj
RAIN 4C
till,
til ch 1-1
------ 1 1 2 AvaGo
RN.
MCE.M.N
BURLOJNG4
------- ------------------ FORT COLLINS COLORADO
INS.-
--------------- ----------
xr
i r I
SIR-AFNOHI=W1
STIE
CKM SLNAMARY
•
SW-C 'ASP_
-ACA
I PREI IMINARY
----------
EXHIBIT B
City of Fort Collins
Economic Development - Use Tax Rebate Application
2010
Company Name Phone Number
Mailing Address Fort Collins License Number
Contact Person
The following information is mandatory for the rebate process.
All financial information contained in this application will be confidential.
Project Information:
Date Project Operations began in Fort Collins
Briefly describe project operations?
Square footage of Project facility
Square footage of entire Fort Collins facility
2008 property tax valuation 2008 personal property tax valuation
2009 property tax valuation 2009 personal property tax valuation
Who is your natural gas provider? Annual Gas Consumption
Employee Infor iatlon:
Number of full time equivalent employees as of January 1,2010 Median Annual Wage
Number of full time equivalent employees as of December 31,2010 Median Annual Wage
Number of temp.,seasonal&contract employees as of 12131110 Median Annual Wage
Rebate Information:
Purchase price of Eligible Equipment purchased in 2010:
Amount of rebate requested:
I hereby authorize the City to review and consider sales and use fax records,vendor records,contract and other information available regarding the
company's eligibility for a rebate under this program. I further authorize the City to release to the public information contained in(his application,as well as
information regarding any rebates issued to the company under this rebate program.
1 certify that the company requesting this rebate is in compliance with all Federal,State and local laws and regulations for the manufacturing facility located
in Fort Collins. 1 also certify that the Company is current with all City of Fort Collins contractual,payment and sales and use fax obligations.
I declare under penalty of perjury that this claim(including any accompanying schedules and statements)has been examined by me and to the best of my
knowledge and belief is frue and made in good faith for fhe'stafed purpose. Further,I represent and warrant that I have the necessary authority to execute
this application on behalf of the company,and to make the above certifications,authorizations,and declaration.
A claim by an agent must be accompanied by power of attorney.
Signature of Taxpayer TRIO - Date
15
OTHER INFORMATION
You must provide a list of the Eligible Equipment purchased that includes the following:
1. Invoice number
2. Invoice date
.3. Vendor name
4. Description of machinery purchased S. Intended use of the machinery
6. Date the use tax was paid to the City of Fort Collins
7. Purchase price of the equipment
8. Amount of purchase subject to Fort Collins tax
9. Amount of Fort Collins use tax paid
You are not required to submit copies of the invoices for which the rebate is requested. However,in the event
that there are questions regarding the eligibility of certain equipment,supporting documentation,including
invoices,will be required.
Application may be submitted between August 31,2010 and December 31,2010
Submit applications and list of equipment purchased to:
City of Fort Collins
Financial Services
P.O.Box 580
Fort Collins,CO 80522-0580
For specific questions regarding the rebate program or general sales and use tax questions,
call the Sales Tax Office at(970)221.6780.
16