HomeMy WebLinkAbout20041522.tiff RESOLUTION
RE: APPROVE COMMUNITY DEVELOPMENT BLOCK GRANT BENEFICIARY
AGREEMENT AND AUTHORIZE CHAIR TO SIGN -AURORA DAIRY CORPORATION
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with a Community Development Block Grant
Beneficiary Agreement between the County of Weld, State of Colorado, by and through the Board
of County.Commissioners of Weld County, and Aurora Dairy Corporation, 1401 Walnut,Suite#300,
Boulder, Colorado 80302, with terms and conditions being as stated in said agreement, and
WHEREAS,after review,the Board deems it advisable to approve said agreement, a copy
of which is attached hereto and incorporated herein by reference.
NOW,THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County,Colorado,that a Community Development Block Grant Agreement between the County of
Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and
Aurora Dairy Corporation be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to
sign said agreement.
The above and foregoing Resolution was,on motion duly made and seconded, adopted by
the following vote on the 26th day of May, A.D., 2004.
• BOARD OF COUNTY COMMISSIONERS
WEct COUNTY, COLORADO iditAggp,� Robert D. Masden, Chair
• 1861 It
` I rk to the Bard
% O William H. ke, Pro-Tem
y Clerk to the Board /71 � QCt->
M. J. ei e
APPROVE AS "O .
EXCUSED
Davi E. Long
my Attorney
lenn V ad
Date of signature:
2004-1522
BC0034
COLORADO DEVELOPMENT BLOCK GRANT PROGRAM
BENEFICIARY AGREEMENT -- AURORA DAIRY CORPORATION
THIS AGREEMENT is made and entered into this day of , 2004,by and
between the County of Weld, a political subdivision of the State of Colorado, by and through the Board
of County Commissioners of the County of Weld, whose address is P.O. Box 758, 915 10th Street,
Greeley, Colorado, 80632 ("Weld County"), and Aurora Dairy Corporation, whose address is 1401
Walnut, Suite#300, Boulder, Colorado 80302 ("Aurora").
WITNESSETH:
WHEREAS, Aurora has agreed to expand in Weld County, Colorado, and
WHEREAS, the Community Development Block Grant (CDBG)program has an objective of
benefiting low to moderate income persons in Weld County, and
WHEREAS, the expansion of Aurora in Weld County will create jobs to benefit the low- and
moderate-income persons in Weld County, and
WHEREAS, the CDBG funds will be used to construct public infrastructure improvements for
the building that is to be constructed for Aurora, including approx. 4,500 linear feet of 21-inch sewer
line and 2,300 linear feet of 24-inch sewer line from the Saint Vrain Sanitation District Sewer Plant to
the Aurora site, and
WHEREAS, the County is the conduit through which the CDBG funds must pass in order to
benefit Aurora and has entered into a contract with the State of Colorado for this purpose ("State's
Agreement").
NOW THEREFORE in consideration of the mutual covenants and promises contained herein,
the parties agree as follows:
1. Aurora, as the intended beneficiary of the CDBG funds, agrees to expand its facility in Weld
County and expand its business and employment base in the manner set forth in the County's
Pre-Application to the State of Colorado Office of Economic Development and International
Trade ("Grant Application").
2. Weld County agrees to be the primary contractor for the construction of the public
infrastructure improvements. As such, it has, by separate agreement, contracted with Saint
Vrain Sanitation District to build and eventually own and operate the infrastructure
improvements.
3. Aurora agrees to the following:
a. Aurora shall build a new processing plant in Weld County and Aurora shall expand
its business and employment base as generally stated in Grant Application.
b. Aurora shall create a minimum of thirty-five (35) new, full-time job positions within
two years of the effective date of the State's Agreement. The effective date of the
State's agreement being March 5, 2004. At least fifty-one percent (51%) of the new,
full-time job positions created by Aurora shall be held by low-to-moderate income
persons. In the event more than thirty-five (35)permanent full-time jobs are created,
CAK\53378\366652.01
2004-1522
Aurora shall ensure that at least fifty-one percent(51%) of all jobs created (as a result
of CDBG funds) are provided to low- and moderate-income persons. As of the
effective date of this Agreement, Aurora shall submit an employment report to Weld
County that shall serve as Aurora's current employment base(before any jobs are
created to meet the requirements of this Agreement). On a quarterly basis, Aurora
shall submit income certifications, in a format prescribed in the CDBG Guidebook,
for every job position hired in Weld County after such effective date. For the
purposes of this Agreement, "full-time job position" is defined as one in which the
employee certifies that his or her primary income is derived from the identified job
position. A full-time job position shall be one that is directly reflected on the payroll
of Aurora upon its creation.
c. As of the effective date of this Agreement, Aurora shall provide to Weld County the
following information: i) a list (including the type of positions, the number of
positions, and wage scales) of the full-time equivalent permanent job positions to be
created with a breakout of those positions which are expected to be filled by low- and
moderate-income persons; ii) identification of those positions that can only be filled
by persons with substantial training, work experience or education beyond high
school and a statement from Aurora as to whether Aurora will agree to hire, and train
as necessary, low- or moderate-income persons for these job positions; and iii) a
proposed schedule for the creation of the committed job positions. Written records
shall be kept and reports made by Aurora regarding the documentation of low- and
moderate-income benefit and beneficiaries by race, ethnicity, gender, and handicap
status in the same manner and to the same extent as Department requires of Weld
County. Additionally, Aurora will document (and retain at its offices) its low-to-
moderate income hiring efforts (such as utilizing Job Training Services, maintaining
copies of public advertisements which contain an offer to train low-to-moderate
income persons for employment positions offered by Aurora, maintaining a log of
"self-identified" low-to-moderate income persons who applied for open employment
positions and the reasons for not hiring, etc.).
d. Aurora shall allow Weld County and CDBG program representatives to make on-site
visits to verify CDBG program information if reasonable notice has been provided by
Weld County.
e. Aurora expressly acknowledges that such infrastructure improvements would not
have been undertaken but for Aurora's contractual commitment to perform all of the
obligations hereunder.
f. Aurora shall provide documentation to Weld County, which verifies that a private
facility (as generally described in Weld County's application submitted to the state)
has been constructed by Aurora for Aurora's use and that the funds budgeted for such
facility have been expended prior to the expiration date of this Agreement. Aurora
shall ensure that the total expenditures for such items is approximately Nineteen
Million and No/100 Dollars ($19,000,000) and shall provide documentation of such
expenditures to Weld County during the term of this Agreement. This written
documentation shall be submitted to Weld County prior to ant disbursement of grant
funds
g. Aurora shall submit its fiscal year end financial information (Balance Sheet and
Income Statement) to Weld County for its review. Such information shall be
submitted to Weld County within one hundred twenty (120) days of the Company's
fiscal year end during the Agreement period.
h. Aurora acknowledges that it will advance and pay for all actual costs of the
infrastructure costs not funded by the CDBG grant (attached as Exhibit B).
i. Aurora agrees to indemnify and hold harmless the County for all legal expenses
associated with Aurora's failure to perform under this Agreement, as required in the
State's Agreement"Scope of Services," which is attached as Exhibit C.
j. Aurora shall repay Weld County for CDBG funds expended up to $500,000, the full
amount of the grant, in the event Aurora does not fulfill its responsibilities under any
condition contained in this Exhibit C, Scope of Services. In the event Aurora
materially fails to comply with any of the terms and conditions of this Agreement or
materially breaches any of the representations, warranties, or covenants contained
herein, then such failure to comply materially or such breach shall be a material event
of default and shall entitle the State (through the Weld County) to enforce all the
rights and remedies contained in this Agreement, the exercise of which rights and
remedies shall be at the sole discretion of the State and may be pursued singly,
successively or together against Aurora. The failure to exercise any such right or
remedy shall in no event be construed as a waiver or release of such rights or
remedies or the right to exercise them at any later date.
k. In the event Aurora does not build its new processing plant and expand its operations
as set forth herein or fails to comply with all of the terms and conditions of this
Agreement, Aurora agrees to repay the amount determined by the Governor's
Financial Review Committee at the State unless liquidated damages have been clearly
specified within this Agreement for the type of breach that occurred. In the event that
the Governor's Financial Review Committee no longer exists, the State will designate
an alternative entity to make such determinations. Interest and legal costs, incurred
by the State in making its determination and in collecting the repayment of such
funds, may be added to the amount of the grant to be repaid. The amount of the grant
to be repaid shall be determined by the Governor's Financial Review Committee after
providing Aurora with an opportunity to provide its perspective and after a thorough
evaluation of the overall circumstances. The amount must necessarily be determined
by the Governor's Financial Review Committee on a case by case basis; however, the
Governor's Financial Review Committee shall consider the level of performance
deficiency in making its determination unless at least 51% of all job positions created
are not filled with low-to-moderate income persons. In the event that 51% of all job
positions created by Aurora are not filled with low-to-moderate income persons,
Aurora will be required to repay all grant funds as described within this Agreement.
In no event shall the amount of the grant to be repaid exceed the amount of funds
actually disbursed to Weld County from this Agreement plus any additional interest
and legal costs described herein. The Notice of Alleged Breach shall state the date
when repayments are due and any other terms regarding such repayment of funds.
Interest shall accrue at the prime interest rate stated in the Wall Street Journal on the
date that the Governor's Financial Review Committee issues a Notice of Breach to
Aurora. All interest calculations shall be made on a simple interest basis. Interest
shall be calculated for the period of non-compliance as determined by the Governor's
Financial Review Committee. The Notice of Breach shall contain the period of non-
compliance as determined by the Governor's Financial Review Committee.
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1. Aurora shall ensure that any changes in its ownership structure results in Aurora
continuing to assume full responsibility for the obligations described in this
Agreement. Otherwise, Aurora shall repay Weld County, for CDBG funds expended
(plus applicable interest and legal costs as described within this Agreement). Such
liquidation damages shall become due and owing at the time ownership is transferred.
Any approved purchasor or transferee must expressly assume Aurora's obligations
pursuant to the Agreement with the Weld County.
m. If any other business(es) utilize the CDBG improvements funded under this
Agreement, the Agreement may be revised to reflect Aurora's pro-rata share of
liquidation damages provided that any new business(es) agrees in writing to be
responsible for its pro-rata share. The Office of Economic Development and
International Trade must approve any such agreement with any other business(es).
4. Severability. To the extent that this Agreement may be executed and performance of the
obligations of the parties may be accomplished within the intent of the Agreement, the terms
of this Agreement are severable, and should any term or provision hereof be declared invalid
or become inoperative for any reason, such invalidity or failure shall not affect the validity of
any other term or provision hereof. The waiver of any breach of a term hereof shall not be
construed as waiver of any other term nor as waiver of a subsequent breach of the same term.
5. Binding on Successors. Except as herein otherwise provided, this agreement shall inure to
the benefit of and be binding upon the parties, or any subcontractors hereto, and their
respective successors and assigns.
6. Disbursement of Funds. This Agreement must be executed and submitted to the Office of
Economic Development and International Trade prior to the disbursement of Agreement
funds.
7. Time of the Essence. Time is of the essence in each and all of the provisions of this
Agreement.
8. Entire Agreement/Modifications. This Agreement constitutes the entire understanding
between the parties with respect to the promises and covenants made therein. No
modification of the terms of this Agreement shall be valid unless made in writing and agreed
to by both parties.
9. Non-Appropriation. No portion of this Agreement shall be deemed to create an obligation on
the part of County Department to expend funds not otherwise appropriated in each
succeeding year.
10. Waiver of Immunities/Third Party Liability. No portion of this Agreement shall be deemed to
constitute a waiver of any immunities of County Department or its officers or employees may
possess, nor shall any portion of this Agreement be deemed to have created a duty of care
with respect to any persons other than County Department and not a party to this Agreement.
11. No Third Party Beneficiary. It is expressly understood and agreed that the enforcement of
the terms and conditions of this Agreement, and all rights of action relating to such
enforcement, shall be strictly reserved to the undersigned parties and nothing in this
Agreement shall give or allow any claim or right of action whatsoever by any other person
not included in this Agreement. It is the express intention of the undersigned parties that any
entity other than the undersigned parties receiving services or benefits under this Agreement
shall be an incidental beneficiary only.
SIGNED this f day of , 2004.
ATTEST: I��J 7 / '!/v1 COUNTY OF WELD, a political
Weld County Clerk to the Board subdivision of the STATE OF COLORADO:
i4 ) BY: K,
'< ;<'}' y Clerk to the Board-- Robert D. Masden, Chairman c s:_31/9
in`„ Board of County Commissioners of the
'-711 i County of Weld
AURORA DAIRY CORPORATION
BY: M/./11/4-
B. Peperzak, Chief Executive Officer
5
Exhibit B
State of Colorado
Office of Business Development
COMMUNITY DEVELOPMENT BLOCK GRANT APPLICATION SUMMARY FORM
APPLICANT: Weld County COUNTY: Weld
ADDRESS: 915 10th Street
Greeley,CO 80631
CONTACT: Jean Daviet,Project Administrator PHONE: 970-356-4565
Greeley/Weld Economic Development
822 7th Street, Suite 550
Greeley,CO 80631
-or-
Don Warden,Finance Director PHONE: 970-356-4000X4218
Weld County
915 10ih Street
Greeley,CO 80631
BUSINESS NAME: Aurora Organic Dairy,Inc.
TYPE OF
ASSISTANCE: Infrastructure to extend sewer line from new building to St Vrain Sanitation District
AMOUNT
REQUESTED: $500,000.00
PROJECT DESCRIPTION:
Aurora Organic Dairy is located west of Platteville,CO. This dairy,originally know as Colorado Dairy,has been in existence
since 1981.The dairy was part of holdings owned by Marcus Peperzak. Over the next decade,Mr Peperzak and Mark Retzloff
helped found Horizon Organic Dairy. These two principals successfully took Horizon public in 1998 and shortly thereafter ended
their involvement with Horizon.
The company has acquired the Reynolds feed lot in Weld County adjacent to the dairy and will build a 28,815 sq ft milk
processing plant that will process and package organic milk from the Aurora Organic Dairy Farm.The budget for this is estimated
at$19.7 million.The company will provide funding for this project by utilizing a mix of debt,equity and equipment leases. In
addition to the building the following subprojects will be needed to achieve the organic outcome:
• Expanding and converting the company's dairy to meet organic protocols. Upon completion,Aurora's dairy will be one
of the two largest organic dairies in the world and the first 100%organic milk plant in America.Future growth is
anticipated to support a herd totaling 8,000 with 6,400 cows milking.
• Installing a 350,000 gallon water storage tank and pump station to provide processing water and the required fire
protection water supply.
• Constructing a wastewater facility to pre-treat the parlor's wastewater.
• Constructing a sewer transmission line from the Aurora property to the St.Vrain Sanitation District network and
treatment plant(Proposed for CDBG funding)
In 2003,the process to convert the Aurora to an organic producer began.The organization received$18.5MM capital investment
from Charlesbank Capital Partners,LLC.Aurora's ownership structure is Charlesbank Capital Partners,LLC 57.8%fully-
diluted,Marc Peperzak,23.1%fully-diluted and various others 19.1%.
•
Weld County and Aurora Organic are requesting an infrastructure grant of$500,000 to build the 7,000 feet of sewer line
connecting the new plant to St Vrain Sanitation network. To support the grant funding,Aurora will commit to creating 35 new
hill-time positions,with at least 51%of the positions being filled with low to moderate income persons. The CDBG cost per job
is$14,286.
Construction of the building is scheduled to begin in February,2004 and completed in the third quarter,2004,with
infrastructure construction scheduled to be completed by July 2004.
SOURCES &USES OF FUNDS on the project are as follows:
CDBG Principal(s) Private Lender Other Sources Total
/Corporate
St Charlesbank
Investment
($16.5MM)
Land Acquisition $1,150,000 $1,150,000
Engineering/ $1,085,845 $1,085,845
Architectural Fees
Infrastructure $490,000 $1,184,155 $580,000 $2,254,155
Rehabilitation/ $4,538,800 $4,538,800
Construction
Machinery/Equipm $10,219,200 $10,219,200
Furniture/ $122,000 $122,000
Fixtures
Working Capital
Other: $300,000 $600,000 $900,000
Contingencies
(City/County) $10,000 $10,000
Administration
Total $500,000 $8,380,800 $11,399,200 $20,280,000
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Exhibit C
SCOPE OF SERVICES
1. PROJECT DESCRIPTION, OBJECTIVES, AND REQUIREMENTS
a. General Provisions. This project consists of providing a Community Development Block Grant
(CDBG) award to Weld County (Contractor) to assist with public infrastructure improvements in
support of Aurora Organic Dairy, Inc. (AOD or the Company).
AOD is in the process of converting its dairy farm from conventional to organic. This
conversion will enable the Company to become one of the two largest organic dairies in the
world. Recently, the Company purchased the Reynolds Feedlot in Weld County. This purchase
has positioned AOD to plan the construction of a 28,815 square foot processing plant dedicated
to solely processing and packaging organic milk. AOD's plant will be the first 100% organic
milk plant in America. Funding for AOD's facilities and operations will be through a
combination of debt, equity, and equipment leases.
The purpose of the CDBG project is to encourage economic diversification and job creation
which addresses the CDBG program objective of benefit to low- and moderate-income persons
in Weld County, subject to the following provisions:
b. Specific Provisions. The following specific provisions are hereby made a part of this Scope of
Services.
1. The CDBG grant amount to Weld County shall not exceed Five Hundred Thousand and
No/100 Dollars ($500,000) and is provided under this Contract to finance pubic
infrastructure-related costs. The Contractor is, in any event, responsible for all project
costs in excess of$500,000.
2. The CDBG funds will assist with the construction of the following public infrastructure
improvements, as generally described in the Contractor's application submitted to the
Colorado Office of Economic Development and International Trade:
i. construction and extension of a twenty-one inch (21") sewer pipe approximately four
thousand five hundred lineal feet (4,500 1.1);
ii. construction and extension of a twenty-four inch (24") sewer pipe approximately two
thousand three hundred lineal feet(2,30011.); and
iii. contract administration related to this contract and incurred after the effective date of
this Contract.
CDBG funds shall not be utilized for any costs incurred prior to the effective date of this
Contract or prior to the completion of other federal and state requirements, as applicable.
Contractor certifies that Weld County will own and maintain all improvements funded by
the CDBG grant, however, upon completion of the construction, Weld County will
transfer ownership of the infrastructure improvements to St. Vrain Sanitation District.
Weld County agrees to provide written documentation of such ownership transfer to the
Colorado Office of Economic Development & International Trade, as well as written
documentation that St. Vrain Sanitation District agrees to adhere to all the terms and
conditions of this CDBG contract.
3. Contractor shall ensure that project plans and specifications are reviewed and approved
by the appropriate regulatory agencies prior to disbursal of contract funds to Contractor.
4. Contractor understands and certifies that Contractor shall be responsible for all
administrative costs, except for the Ten Thousand and No/100 Dollars ($10,000) of
CDBG funds provided in this contract, required for this project and as specifically
required in the State's Guidebook for Direct Economic Development Projects and
Revolving Loan Funds (CDBG Guidebook).
5. The Contractor shall comply with all the requirements of the Davis Bacon Fair Labor
Standards in accordance with the provisions set forth in Paragraph 20 (p) within the main
body of this Contract.
6. Selection of contractors and purchase of materials to accomplish the Project shall follow
appropriate procurement standards as outlined in the Financial Management Section of
the State's CDBG Guidebook.
7. This project is X , is not , subject to Section 3 Requirements that, to the greatest
extent feasible, provides that opportunities for training and employment or the awarding
of contracts that arise from this HUD-financed project, the Contractor will give
preference in the hiring to very low-, low- and moderate-income persons, and the
Contractor must give preference in contracting to businesses owned by these persons or
that substantially employ very low-, low-, and moderate-income persons in the project
area. Compliance requirements are set forth in Paragraph 20 (t) within the main body of
this Contract.
8. Contractor shall make quarterly on-site visits to AOD to assess/monitor the progress
toward job creation and shall use the quarterly public facilities report to document such
visits. Contractor shall provide reasonable notice to AOD of such visits.
9. Contractor and AOD shall execute a written agreement (Agreement) which includes, at a
minimum, the following requirements and which shall be submitted to the Colorado Office
of Economic Development and International Trade prior to the disbursement of any CDBG
funds:
a. AOD shall build a new processing plant in Weld County and AOD shall
expand its business and employment base as generally stated in
Contractor's application.
b. AOD shall create a minimum of thirty-five (35) new, full-time job positions
within two years of the effective date of the state's contract. The Agreement
shall require that at least fifty-one percent (51%) of the new, full-time job
positions created by AOD shall be held by low-to-moderate income persons.
In the event more than thirty-five (35) permanent full-time jobs are created,
Contractor and AOD shall ensure that at least fifty-one percent (51%) of all
jobs created (as a result of CDBG funds) are provided to low- and moderate-
income persons. As of the effective date of this contract, AOD shall submit
an employment report to Contractor that shall serve as AOD's current
employment base (before any jobs are created to meet the requirements of this
contract). On a quarterly basis, AOD shall submit income certifications, in a
9
format prescribed in the CDBG Guidebook, for every job position hired in
Weld County after the effective date of the State's contract.
The Agreement shall state that a full-time job position is defined as one in
which the employee certifies that his or her primary income is derived from
the identified job position. A full-time job position shall be one that is
directly reflected on the payroll of AOD upon its creation.
c. The Agreement shall include the following information: i) a list (including
the type of positions, the number of positions, and wage scales) of the full-
time equivalent permanent job positions to be created with a breakout of those
positions which are expected to be filled by low- and moderate-income
persons; ii) identification of those positions that can only be filled by persons
with substantial training, work experience or education beyond high school
and a statement from AOD as to whether AOD will agree to hire, and train as
necessary, low- or moderate-income persons for these job positions; iii) a
proposed schedule for the creation of the committed job positions; and iv)
provisions requiring written records to be kept and reports to be made
regarding the documentation of low- and moderate-income benefit and
beneficiaries by race, ethnicity, gender, and handicap status in the same
manner and to the same extent as Department requires of Contractor.
The agreement shall strongly encourage AOD to additionally document (and
retain at its offices) its low-to-moderate income hiring efforts (such as
utilizing Job Training Services, maintaining copies of public advertisements
which contain an offer to train low-to-moderate income persons for
employment positions offered by AOD, maintaining a log of "self-identified"
low-to-moderate income persons who applied for open employment positions
and the reasons for not hiring, etc.).
d. AOD shall allow Contractor and CDBG program representatives to make on-
site visits to verify CDBG program information if reasonable notice has been
provided by Contractor.
e. The Agreement shall state that AOD expressly acknowledges that such
infrastructure improvements would not have been undertaken but for AOD's
contractual commitment to perform all of the obligations thereunder.
f. The Agreement shall require a commitment by AOD to provide
documentation to Contractor, which verifies that a private facility (as
generally described in Contractor's application submitted to the state) has been
constructed by AOD for AOD's use and that the funds budgeted for such
facility have been expended prior to the expiration date of this contract. AOD
shall ensure that the total expenditures for such items is approximately
Nineteen Million and No/100 Dollars ($19,000,000) and shall provide
documentation of such expenditures to Contractor during the term of this
contract.
g. The Agreement shall require AOD to submit its fiscal year end financial
information (Balance Sheet and Income Statement) to Contractor for its
review. Such information shall be submitted to Contractor within one
hundred twenty(120) days of the Company's fiscal
year end during the contract period.
h. Contractor shall consider including language in the Agreement specifying
which entity shall be responsible for cost overruns and legal expenses
(particularly in liquidation/default situations).
i. The Agreement shall require AOD to repay Contractor for CDBG funds ex-
pended in the event AOD does not fulfill its responsibilities under any
condition contained in this Exhibit A, Scope of Services. In the event AOD
fails to comply with any of the terms and conditions of this Contract or
breaches any of the representations, warranties, or covenants contained in this
Contract, then such failure to comply or such breach shall be a material event
of default and shall entitle the State (through the Contractor) to enforce all the
rights and remedies contained in this Contract, the exercise of which rights
and remedies shall be at the sole discretion of the State and may be pursued
singly, successively or together against AOD. The failure to exercise any
such right or remedy shall in no event be construed as a waiver or release of
such rights or remedies or the right to exercise them at any later date.
In the event AOD does not build its new processing plant and expand its
operations as set forth herein or fails to comply with all of the terms and
conditions of this Contract, AOD agrees to repay the amount determined by
the Governor' s Financial Review Committee at the State unless liquidated
damages have been clearly specified within this contract for the type of breach
that occurred. In the event that the Governor' s Financial Review Committee
no longer exists, the State will designate an alternative entity to make such
determinations. Interest and legal costs, incurred by the State in making its
determination and in collecting the repayment of such funds, may be added to
the amount of the grant to be repaid. The amount of the grant to be repaid
shall be determined by the Governor' s Financial Review Committee after
providing AOD with an opportunity to provide its perspective and after a
thorough evaluation of the overall circumstances. The amount must
necessarily be determined by the Governor's Financial Review Committee on
a case by case basis; however, the Governor' s Financial Review Committee
shall consider the level of performance deficiency in making its determination
unless at least 51% of all job positions created are not filled with low-to-
moderate income persons. In the event that 51% of all job positions created
by AOD are not filled with low-to-moderate income persons, AOD will be
required to repay all grant funds as described within this contract. In no event
shall the amount of the grant to be repaid exceed the amount of funds actually
disbursed to Contractor from this contract plus any additional interest and
legal costs described herein. The Notice of Alleged Breach shall state the date
when repayments are due and any other terms regarding such repayment of
funds.
Interest shall accrue at the prime interest rate stated in the Wall Street Journal
on the date that the Governor' s Financial Review Committee issues a Notice
of Breach to AOD. All interest calculations shall be made on a simple interest
basis. Interest shall be calculated for the period of non-compliance as
determined by the Governor' s Financial Review Committee. The Notice of
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Breach shall contain the period of non-compliance as determined by the
Governor' s Financial Review Committee.
AOD shall ensure that any changes in its ownership structure results in AOD
continuing to assume full responsibility for the obligations described in this
agreement. Otherwise, AOD shall repay Contractor, for CDBG funds
expended (plus applicable interest and legal costs as described within this
contract). Such liquidation damages shall become due and owing at the time
ownership is transferred. Any approved purchasee or transferee must
expressly assume AOD's obligations pursuant to the Agreement with the
Contractor.
The Agreement must be executed and submitted to the Colorado Office of
Economic Development and International Trade prior to the disbursement of
contract funds.
10. Contractor shall ensure that it has obtained appropriately filed legal structure
documentation and signature authorizations for AOD. Such legal structure
documentation and signature authorizations shall be executed and submitted to the
Colorado Office of Economic Development and International Trade prior to the
disbursement of contract funds.
11. Contractor shall obtain documentation from AOD which verifies that AOD has executed
an agreement to build the processing plant as described within this contract for
approximately Nineteen Million and No/100 Dollars ($19,000,000) and as generally
described in Contractor's application.
Contractor shall also obtain written documentation from AOD that lists all private
investment funding commitments necessary to complete the processing plant project.
Written documentation that such funding commitments have been secured must be
submitted to the Colorado Office of Economic Development and International Trade
prior to the disbursement of contract funds.
12. Contractor shall additionally comply with all federal acquisition requirements related
to any acquisition of land and/or easements for this project, if needed. Such requirements
are described in the State' s CDBG Guidebook.
13. Contractor shall provide the Colorado Office of Economic Development and
International Trade with a copy of any administration contracts it executes with
external service providers, if applicable, prior to the disbursement of any contract
funds designated for administrative purposes.
14. Contractor shall monitor additional businesses (in addition to AOD) which utilize the
CDBG-funded improvements and which create/retain jobs as a result of the CDBG-
funded improvements. For Contractor to monitor retained jobs, such jobs must meet the
United States Department of Housing and Urban Development's stringent guidelines for
retained positions. For identified businesses requiring monitoring, Contractor shall
ensure that it has an executed agreement with such businesses which specifies the number
of full-time equivalent positions that such businesses are committing to create/retain and
which specifies that 51% of all full-time equivalent positions created/retained by such
businesses will be filled by low-to-moderate income persons. A full-time job is defined
as one in which the employee certifies that his or her primary income is derived from the
identified job position.
The monitoring period shall begin with the effective date of the state's contract and shall
continue for a one year period after the physical completion of the CDBG-funded
improvements; however, any identified businesses must continue to be monitored until
the committed number of jobs has been achieved by such businesses.
Contractor shall ensure that its agreement with such businesses shall contain the
following: i) a list (including the type of positions, the number of positions, and wage
scales) of the full-time equivalent permanent positions to be created with a breakout of
those positions which are expected to be filled by low-to-moderate income persons; ii)
identification of those positions that can only be filled by persons with substantial
training, work experience or education beyond high school and a statement from such
businesses that each respective business will agree to hire, and train as necessary, low-to-
moderate income persons for these positions; iii) a proposed schedule for the creation of
the committed positions; and iv)provisions requiring written records to be kept and
reports to be made regarding the documentation of low-to-moderate income benefit and
beneficiaries by race, ethnicity, gender, and handicap status in the same manner and to
the same extent as Department requires of Contractor [which shall include the quarterly
submittal of such businesses' payroll list and employee income certification forms for
every employee on the payroll list to Contractor]. Such agreements shall strongly
encourage such businesses to additionally document (and retain at its offices) its low-to-
moderate income hiring efforts (such as utilizing Job Training Services, maintaining
copies of public advertisements which contain an offer to train low-to-moderate income
persons for employment positions offered by such businesses, maintaining a log of"self-
identified" low-to-moderate income persons who applied for open employment positions
and the reasons for not hiring, etc.).
15. Contractor shall submit a Quarterly Employment Report in a manner and method
prescribed by the Colorado Office of Economic Development and International Trade to
the Colorado Office of Economic Development and International Trade on a quarterly
basis, no later than the thirtieth(30th) day of the month after the end of each calendar
quarter of the contract period and continuing after the contract period for the time frame
delineated above. This report shall be supported by underlying income certifications, as
required in Section VIII (Economic Development Section) of the State's Guidebook for
Economic Development and Revolving Loan Fund Projects. Such income certifications
shall be maintained in Contractor's files for review.
16. Contractor shall submit all documentation required by this Contract, as applicable, to the
Colorado Office of Economic Development and International Trade except for the Audits
required in Paragraph 13 within the main body of this Contract.
17. Contractor shall return any funds, received from AOD for liquidated damages, to the
Colorado Office of Economic Development and International Trade within ten (10)
calendar days of receipt.
18. Contractor certifies that the project and terms under which assistance is to be
provided are appropriate and necessary due to insufficient funds in Contractor's operating
budget.
19. Contractor shall notify the Colorado Office of Economic Development and
International Trade in writing of an event of AOD's non-performance as described in
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this Contract herein within ten (10) calendar days of such event.
Contractor shall notify the Colorado Office of Economic Development and
International Trade in writing of changes in this project's funding commitments
negotiated by and between the Contractor and other funding sources. The amount, terms
and conditions of this grant are based, in part, on the participation of public and private
financing. Any change in participation may materially affect the state's ability to
participate as stated herein and shall require state approval.
20. By executing this contract, Contractor is certifying that AOD's project site is within
Weld County's jurisdictional boundaries.
2. NATIONAL OBJECTIVE
AOD shall create a minimum of thirty-five (35) new, full-time jobs in Weld County on or after
the effective date of the State' s contract and within two years of the effective date of the state's
contract. At least fifty-one percent (51%) of the new, full-time jobs created by AOD shall be
held by low-to-moderate income persons. In the event more than thirty-five (35) permanent jobs
are created, Contractor and AOD shall ensure that at least fifty-one percent (51%) of all jobs
created (as a result of CDBG funds) are provided to low- and moderate-income persons.
3. TIME OF PERFORMANCE
The Project shall commence upon the full and proper execution of this Contract and the
completion of the appropriate environmental review, and shall be completed on or before two
(22)years from the effective date of this Contract. However, the Project time of performance may
be extended by an Unilateral Amendment. To initiate this process, a written request shall be
submitted to the State by the Contractor at least sixty (60) days prior to the contract's expiration
date, and shall include a full justification for the extension request. In order to complete the
Contract in the above time period, one hundred percent (100%) of funds provided through this
Contract shall have been expended, unless the Colorado Office of Economic Development and
International Trade and Contractor mutually
agree to de-obligate a portion of such funds.
4. BUDGET
Project Activities: Sources: Project Costs:
Public Infrastructure (17B) CDBG* $ 490,000
Project Administration(21A) CDBG* $ 10,000
Private Investment AOD** $19,780,000
TOTAL $20,280,000
* Refer to Specific Provision 1.b.2. in this Exhibit for CDBG-funded activities.
** Refer to Specific Provisions 1.b.11. in this Exhibit for private investment sources.
Funds from sources other than CDBG shall not be considered matching funds subject to federal audit
requirements.
5. REMIT ADDRESS: (Address to where payments are to be sent)
915 10th Street
Greeley, CO 80631
6. PAYMENT SCHEDULE
Payments shall be made in accordance with the provisions set forth in Paragraph 11 within the
main body of this Contract. Interim payments shall be made upon written, approved requests
submitted by the Contractor.
7. CONTRACT MONITORING
The Colorado Office of Economic Development and International Trade, on behalf of the
Colorado Department of Local Affairs, shall monitor this Contract in accordance with the
provisions set forth in Paragraph 21 within the main body of this Contract at least once during
the contract period.
8. REPORTING SCHEDULE
Contractor shall provide quarterly financial and program reports to the Colorado Office of Economic
Development and International Trade in accordance with the provisions set forth in Paragraph 18
within the main body of this Contract. Within ninety (90) days after completion of the Project, the
Contractor shall submit to the Colorado Office of Economic Development and International Trade
the Project Completion Report and Final Financial Status Report as required in the Close-Out
Section of the State CDBG Guidebook.
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