HomeMy WebLinkAboutFORNEY ANNEXATION - ANX120002 - LEGAL DOCS - LEGAL DOCUMENTSExhibit B
Financial Services
City
Sales Tax Division
of
Fort Collins
2T5NMason Sreet,2 floor
P.O. Boxox 580
Fort Collins, CO 80522
970.221.6780
-
9i0.221.6182-tax
tcgov_colw,',WBstex
REFUND CLAIM FOR CITY TAXES PAID
Please refer to the instructions on the back of this form.
Name of Claimant:
Residence or Business Address:
Mailing
Phone:
Date of Payment:
Total Amount Paid S
Reasons for Claim:
Type of Tax Paid: _
Total Refund Requested
We declare, under penalties of pe jury, that this daim (including any accompanying schedides and statements) has
been examined by melus, and to the best of nrylourknowledge and beliel is true, correct and made in good laith for
the purpose stated
A claim by an agent must be accompanied by power of attorney.
Signature of person other than taxpayer preparing claim Date
Signature of Taxpayer Dale
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Office Use Only: Audited by: Approved by:
Sales Tax ManaOerlFinancial Ohcer
Amount of Refund: Date:
EXHIBIT A
A parcel 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 Corner of Section 10 and assuming the South line
of the Northwest Quarter of Section 10 to bear North 89°14'44" West, with all other
bearings herein relative thereto;
Thence North 89° 14'44" West, 1108.58 feet to the POINT OF BEGINNING; thence,
North 89°14'44" West, 216.43 feet; thence, North 00°38'55" East, 435.71 feet;
thence, North 89°14'49" West, 330.72 feet; thence, North 00°42'46" East, 656.12
feet; thence, South 89°24'33" East, 1320.17 feet; thence, South 00°23'46" West,
377.97 feet; thence, North 89014'44" West, 285.00 feet; thence, South 00023'46"
West, 472.81 feet; thence, North 87°54'20" West, 249.40 feet; thence, South
07°37'19" East, 72.44 feet; thence, North 89014144" West, 86.39 feet; thence, North
00023'46" East, 21.00 feet; thence, North 89014'44" West, 83.00 feet; thence, South
00023'46" West, 50.00 feet; thence, North 89014'37" West, 85.00 feet; thence, South
00023'46" West, 150.00 feet to the POINT OF BEGINNING.
Said parcel of land contains 22.820 acres, more or less.
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Attest:
City Clerk
Approved as to form:
Assistant City Attorney
State of )
)ss.
County of )
The
2012, by
corporation.
CITY OF FORT COLLINS, COLORADO
a municipal corporation
Lon
Darin A. Atteberry, City Manager
FORNEY INDUSTRIES, INC.
a Colorado corporation
a
Name and title
foregoing was acknowledged before me this day of
as Forney Industries, Inc., a Colorado
Witness my hand and official seal.
My commission expires:
Notary Public
L[61
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.
11.10. 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 Forney have executed this Agreement as of the
date first above written.
[Signatures on following pages.]
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11.2. 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 8 of this Agreement. Further, the City is not bound by any contracts or conditions that
Forney may negotiate with third parties.
11.3. Interpretation, lurisdiction 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 Forney 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. Severabilitv. 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.
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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.
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 Patton, 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.
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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.
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 Forney, 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:
9.3.1. Any representation or warranty made in this Agreement by Forney was
materially inaccurate when made or shall prove to be materially inaccurate;
9.3.2. Forney assigns or attempts to assign this Agreement in violation of Section 8 of
this Agreement; or
9.3.3. 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. Perform any nonmonetary, material covenant, obligation or agreement required
of it under this Agreement.
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Code, the Annexation Agreement, or this Agreement, subject to any variances or modifications
of standards that may be granted to Forney under the Code or the City's Land Use Code, and to
comply with the terms and conditions of the Annexation Agreement. If Forney is in violation of
the provisions of the Code, the City's Land Use Code, this Agreement or the Annexation
Agreement, the City will provide written notice to Forney of such violation, and allow the
Forney a period of ninety (90) 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.
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 Annexation
Agreement, 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 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 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.
II
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.
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 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. 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 City's Land Use
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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:
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.
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.
4.7. Forney assumes the entire risk that the annexation and business 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. 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.
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.
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 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 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
business operations on the Property.
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 all 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 are satisfied
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 has supplied 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.
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:
(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 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.
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 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.
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 business operations on the Property.
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 all 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 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).
caps of $3,750 for partial year 2012 as described in paragraph 3.3.1., $15,000 for 2013, $15,000 for
2014, and $11,250 for the partial year 2015 as described in paragraph 3.3.4. (the "Maximum
Annual Cap").
3.4. The Sales Tax Rebate shall be conditioned upon the full and timely payment by Forney
to the City of all sales tax due and owing from Forney. If this contingency has not been satisfied
or is no longer satisfied as of the date set forth for payment of any Sales Tax Rebate hereunder,
no such Sales Tax Rebate, or any subsequent Sales Tax Rebate or other incentive payment
provided in this Agreement, will be paid.
3.4.1. In order to be eligible for any Sales Tax Rebate hereunder, Forney shall submit an
Application for Sales Tax Rebate no later than March 31, 2013, for rebate of City
sales tax paid between September 28, 2012, and December 31, 2012. 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.
3.4.2. In order to be eligible for any remaining Sales Tax Rebate hereunder, Forney
shall submit an Application for Sales Tax Rebate for the rebate of City sales tax
paid during 2013, 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.
3.4.3. In order to be eligible for any remaining Sales Tax Rebate hereunder, Forney
shall submit an Application for Sales Tax Rebate for the rebate of City sales tax
paid during 2014, 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.
3.4.4. In order to be eligible for the final Sales Tax Rebate, Forney shall submit an
Application for Sales Tax Rebate for the rebate of City sales tax paid between
January 1, 2015, and September 27, 2015, 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.
3.5. The City, in its sole discretion, may pre -pay all or any portion of the Sales Tax Rebate
without penalty.
3.6. Forney assumes the entire risk that the annexation will not be finalized by September 28,
2012 so as to qualify for the Maximum Sales Tax Reimbursement or the 2012 Maximum Annual
Cap, and 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.
2.2.7. Forney intends to operate, or cause to operate, a high quality manufacturing
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 sales tax due from Forney for its operations.
3.2. For purposes of this Agreement the parties agree that the rebate for sales taxes
contemplated by this Agreement is the base sales tax rate of 2.25% and specifically excludes any
dedicated tax approved by City voters, including but not limited to:
3.2.1. A one -quarter cent dedicated taxes 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 one -quarter cent dedicated taxes approved by City voters to be used
specifically for general city projects due to expire on December 31, 2015;
3.2.3. A one -quarter cent dedicated taxes 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% increase in the City's sales and use tax rate 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.
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 all 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 Sales Tax paid by Forney under the terms set forth in paragraph 3.3.1, 3.3.2, 3.3.3,
and 3.3.4 below (the "Sales Tax Rebate'). If, as presently contemplated by the parties, the
contingencies described in those paragraphs 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 29, 2015, as
described in Section 3.3, 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
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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 of that any such litigation,
proceeding, or investigation has been threatened.
2.2.5. Forney has submitted a Petition for Annexation Agreement to the City in
accordance with all applicable procedures set forth in the City 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.
WHEREAS, in order to encourage the Project, the City Council has determined, through
the adoption of Resolution 2012-_ 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-_ 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.
Annexation Agreement means that agreement to annex the Property as shown in Exhibit A into
the City and approved by the City Council pursuant to the City Code.
Charter means the Home Rule Charter of the City.
Cft means the City of Fort Collins, Colorado, a home rule municipal corporation.
Code means the Code of the City of Fort Collins.
County Assessor means the Larimer County Assessor.
Forney means Forney Industries, Inc., a Colorado Corporation.
Land Use Code means the Fort Collins Land Use Code.
Personal Property means all personal property located and used on the Property.
Real Property means the Property as described on Exhibit A.
Sales Tax Rebate means the rebate of sales tax to Forney described in Section 3 of this
Agreement.
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 annexing the Property into the City to be
completed 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 18 new jobs with an average salary of $49,000 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
sales tax; (ii) $8,778 in new personal property tax in the first ten years; and (iii) $ 58,784 in 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 primary 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 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 annex the Property into
the City, (ii) the expansion of operations will maintain a high quality manufacturing facility that
will be owned and operated by Forney, (iii) new primary jobs will be generated, and (iv) that
they intend to have a reasonable expectation of long-term operations in the City; and