Loading...
HomeMy WebLinkAbout1259 Emery Sapp & Sons Public Infrastructure Improvements Yanfeng Trim Agreement BILL NO. 2013 -085 ORDINANCE NO. Jc S `1 AN ORDINANCE AUTHORIZING THE AGREEMENT BETWEEN THE CITY OF RIVERSIDE, MISSOURI AND EMERY SAPP & SONS, INC. FOR ADDITIONAL PUBLIC INFRASTRUCTURE IMPROVEMENTS RESULTING IN AN APPROVED CONTRACT AMOUNT OF $930,015.96 AND AN AGREEMENT BETWEEN THE CITY OF RIVERSIDE, MISSOURI AND YANFENG USA AUTOMOTIVE TRIM SYSTEMS, INC., A MICHIGAN CORPORATION, REGARDING THE FUNDING OF SUCH ADDITIONAL PUBLIC INFRASTRUCTURE IMPROVEMENTS WHEREAS, the City previously adopted Ordinance No. 1253 authorizing the construction of additional public infrastructure for Lot 3 of Riverside Horizons West Plat (the "Project "); and WHEREAS, after evaluation and analysis, City staff recommends that a Project Agreement in substantially the same form as Exhibit A, attached hereto and incorporated herein, be entered into with Emery Sapp & Sons, Inc. for the installation and construction of the Project upon satisfaction of certain conditions as described below; and WHEREAS, the City and Yanfeng USA Automotive Trim Systems, Inc. (YF -USA) will provide funds to pay for the cost of the Project pursuant to a Funding and Escrow Agreement that the City and YF -USA will enter into, which Funding and Escrow Agreement shall be in substantially the same form as Exhibit B, attached hereto and incorporated herein, in order to confirm the funding uses and sources; and WHEREAS, the estimated cost of such installation and construction is nine hundred thirty thousand fifteen dollars and ninety six cents ($930,015.96) which costs shall be allocated pursuant to the Funding and Escrow Agreement; and WHEREAS, the parties desire to establish the rights and responsibilities of the City, Emery Sapp & Sons, Inc., and YF -USA with respect to the construction of the Project and the Board of Aldermen find that it is in the best interest of the City to approve the Project Agreement as set forth in Exhibit A and to approve the Funding and Escrow Agreement, substantially in the form as set forth in Exhibit B, upon satisfaction of certain conditions as set out below. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI AS FOLLOWS: SECTION 1. BEST INTEREST OF THE CITY. It is in the best interest of the City in order to further the objectives of industrial and economic development of the City to APPROVE the Project Agreement between the City and Emery Sapp & Sons, Inc. as set forth in Exhibit A for a cost of such installation and construction of nine hundred thirty thousand fifteen dollars and ninety six cents ($930,015.96) and to APPROVE the Funding and Escrow Agreement between YF -USA and the City for the completion of the Project (collectively the "Agreements "), and said Agreements are hereby approved and authorized for execution by the Mayor with issuance of the Notice to Proceed authorized to be approved by the City Administrator upon written confirmation by the City Attorney and /or Special Counsel to the City of the satisfaction of the following conditions: WA 4256332.1 BILL NO. 2013 -085 ORDINANCE NO. 1359 a. A performance bond executed by a surety company authorized to do business in Missouri and having a rating of at least "A -" from Best's, to show it is solvent, in an amount equal to one hundred percent (100 %) of the portion of the contract that does not include the cost of operation, maintenance and money; and b. A payment bond executed by a surety company authorized to do business in Missouri and having a rating of at least "A -" from Best's, to show it is solvent, for the protection of all persons supplying labor and material to the contractor or its subcontractors for the performance of construction work provided for in the contract. The bond shall be in an amount equal to one hundred percent (100 %) of the portion of the contract price that does not include the cost of operation maintenance and money; and c. Execution of the Funding and Escrow Agreement by the President of YF- USA prior to providing the Notice to Proceed to Emery Sapp & Sons, Inc. SECTION 2. CONSTRUCTION SAFETY PROGRAM. The Project is subject to the requirements of Section 292.675 RSMo, which requires all contractors or subcontractors doing work on the project to provide a ten -hour Occupational Safety and Health Administration (OSHA) construction safety program ( "Program ") for their on -site employees which includes a course in construction safety and health approved by OSHA or a similar program approved by the department which is at least as stringent as an approved OSHA program, unless such employees have previously completed the required program. All employees who have not previously completed the Program are required to complete the Program within 60 days of beginning work on the construction project. Any employee found on a work site subject to this section without documentation of the successful completion of the Program shall be afforded 20 days to produce such documentation before being subject to removal from the project. Emery Sapp & Sons, Inc. shall forfeit, as a penalty to the City, Two Thousand Five Hundred Dollars ($2,500.00) plus One Hundred Dollars ($100.00) for each employee employed by Emery Sapp & Sons, Inc. for each calendar day, or portion thereof, such employee is employed without the required training. SECTION 3. PREVAILING WAGE. The Project is subject to the requirements of Section 29.250 RSMo, which requires the payment of prevailing wage. The City, in Exhibit C of the Project Agreement, has specified the prevailing hourly rate of wages for each type of workman needed to execute the Project Agreement and also the general prevailing rate for legal holiday and overtime work. SECTION 4. AUTHORITY TO EXECUTE. The City and the officers, agents and employees of the City, including the Mayor, the City Administrator, the City Attorney, Special Counsel to the City, and Finance Director and other appropriate City officials are hereby authorized to execute a Project Agreement with Emery Sapp & Sons, Inc. as set forth in Exhibit A, and a Funding and Escrow Agreement with YF -USA, in substantially the form as set forth in Exhibit B, and to take any and all actions as may be deemed necessary or convenient to carry out the terms and conditions of such Agreements to carry out and comply with this Ordinance, and the City Clerk is WA 4256332.1 BILL NO. 2013 -085 ORDINANCE NO. 1as9 authorized to attest thereto upon satisfaction of the above conditions precedent as confirmed by the City Attorney or Special Counsel. SECTION 5. SEVERABILITY CLAUSE. The provisions of this Ordinance are severable and if any provision hereof is declared invalid, unconstitutional or unenforceable, such determination shall not affect the validity of the remainder of this ordinance. SECTION 6. EFFECTIVE DATE. This Ordinance shall be in full force and effect upon and after its passage and approval. BE IT REMEMBERED that the above was PASSED AND APPROVED by a majority of the Board of Aldermen, and APPROVED by the Mayor of the City of Riverside, Missouri, thisaeday of October, 2013. yVatit e Kathleen L. Rose, Mayor . ATTEST: ' Robin Littrell; oit Approved as to form: , SpenS ane Britt & Browne LLP, Speounsel to the City by Joe Bednar WA 4256332.1 BILL NO. 2013 -085 ORDINANCE NO. I aS3 EXHIBIT A WA 4256332.1 BILL NO. 2013 -085 ORDINANCE NO. /A-S EXHIBIT B WA 4256332.1 LOT 3 ADDITIONAL PUBLIC INFRASTRUCTURE PROJECT FUNDING AND ESCROW AGREEMENT THIS LOT 3 ADDITIONAL PUBLIC INFRASTRUCTURE PROJECT FUNDING AND ESCROW AGREEMENT ( "Funding and Escrow Agreement ") is voluntarily made and entered into this Sli day of November, 2013, by and between the CITY OF RIVERSIDE, MISSOURI ( "City "), a city and political subdivision duly organized and existing under the Constitution and laws of the State of Missouri, and YANFENG USA AUTOMOTIVE TRIM SYSTEMS, INC. ( "YF- USA "), a Michigan corporation. RECITALS: WHEREAS, City owns Lot 3 of Riverside Horizons West First Plat ( "Site "), described in Exhibit A, and desires to encourage the beneficial and orderly development of the same; WHEREAS, YF -USA leases the Site from the City and intends to build a plastics injection molding plant and offices at the Site; and WHEREAS, in order for the Site and areas around the Site to be developed, the City is providing certain public infrastructure improvements, including but not limited to: (1) the construction of Helena Road and 41st Street; (2) sanitation systems and stormwater systems; and (3) water systems, natural gas, electric and telecommunication lines, and street lights; and WHEREAS, additional public improvements including, but not limited to: (1) site grading and fill; (2) parking lot paving; (3) sidewalks and curbs; and (4) landscaping ( "Additional Public Infrastructure ") are also needed for the completed construction and use of the Site; and WHEREAS, YE-USA has agreed to participate with the City in the costs of providing the necessary Additional Public Infrastructure for the Site; and WHEREAS, the City's Board of Aldermen authorized City funds of no more than Seven Hundred Thousand Dollars ($700,000.00) to be expended for Additional Public Infrastructure costs for the Site ( "Public Funds "); and WHEREAS, based on the project design and construction specifications, the anticipated cost of providing the Additional Public Infrastructure is $930,015.96, of which $700,000.00 shall be provided by 21667567.1 \146442 -00003 WA 4638391.1 the City and any required amount over $700,000.00, as provided in this Agreement, shall be funded by YF -USA ( "Private Funds "); and WHEREAS, the City's Board of Aldermen instructed staff and Special Counsel to enter into an agreement with YF -USA to establish the project funding sources and specify an escrow process for YF- USA to provide funds for the Additional Public Infrastructure costs; and WHEREAS, the City and YF -USA desire to enter into this Funding and Escrow Agreement with respect to the City's provision of Public Funds and YF -USA's contributions of Private Funds for the Additional Public Infrastructure construction. COVENANTS AND AGREEMENTS: NOW, THEREFORE, in consideration of the foregoing recitals, mutual covenants and promises set forth below, the receipt and sufficiency of which are mutually acknowledged, the City and YF -USA hereby agree to this Funding and Escrow Agreement as follows: 1. Recitals and Exhibits A. Recitals The Recitals set forth above in this Funding and Escrow Agreement are incorporated into and made a part of this Funding and Escrow Agreement as if fully set forth in this Section 1.A. B. Exhibits Funding and Escrow Agreement WA4638391.1 21667567.1 \146442 -00003 The Exhibits to this Funding and Escrow Agreement are incorporated into and made a part of this Funding and Escrow Agreement as if fully set forth in this Section 1.B. 2. Design and Construction YF -USA and the City shall agree to Additional Public Infrastructure final project design and engineering specifications. Once the final project design and engineering specifications are complete, the City shall be responsible for construction of the Additional Public Infrastructure in a timely manner based upon the agreed upon design and engineering specifications. Notwithstanding the final specifications, the City shall start the Additional Public Infrastructure as soon as the Private Funds are deposited into the Escrow Account. 3. Cost of Construction The City and YF -USA anticipate the cost of construction for the Additional Public Infrastructure to meet or exceed $930,015.96. The cost may change based on details provided as part of the completed design specifications. Should the cost of construction not result in the expenditure of the full amount of Public Funds (as defined herein), the City and YF -USA may agree to amend this Funding and Escrow Agreement to include additional public site projects. 4. Source of Funds A. Public Funds The City shall contribute Public Funds in the amount of $700,000.00 toward the costs of design and construction of the Additional Public Infrastructure. B. Private Funds Subject to the terms and conditions set forth in this Funding and Escrow Agreement, YF- USA shall be solely responsible for Private Funds in an amount sufficient to pay any and all reasonable and necessary costs, including construction contingency as described in Section 6, below, incurred in connection with the construction of the Additional Public Infrastructure in excess of the Public Funds. 5. Escrow A. Creation of Escrow Account Funding and Escrow Agreement WA 4638391.1 21667567.1 \146442 -00003 There is hereby created and established with the City a Project- specific account designated as the "Yanfeng Additional Public Infrastructure Project Escrow Account ". OR There is hereby created and established with UMB Bank, N.A., a national banking association with its principal payment office located in Kansas City, Missouri, an escrow account for the deposit of the Public and Private Funds described herein to be used for the payment of the Additional Public Infrastructure costs (such account so chosen, the "Escrow Account "). Regardless of the party holding the account, whoever is entrusted with holding the Escrow Account shall act in the best interests of both parties. B. Deposits to Escrow Account Within five days of the execution of this Funding and Escrow Agreement, the City shall deposit into the Escrow Account the full amount of Public Funds. In the same timeframe, YF -USA shall deposit the amount of Private Funds deemed necessary for the completion of construction as determined through the final construction estimates, and the City shall acknowledge receipt and deposit of the same. If the construction estimates are insufficiently complete as of the date of execution of this Funding Agreement, YE-USA shall deposit the full amount of Private Funds into the Escrow Account as soon as reasonably possible and prior to the City issuing a notice to proceed to construct any portion of the Additional Public Infrastructure. C. Disbursement of Moneys and Account Records for the Escrow Account Funds in the Escrow Account shall be used solely to pay for costs of the Additional Public Infrastructure. The City shall maintain adequate records pertaining to the Escrow Account and all disbursements therefrom, and shall file monthly statements of activity regarding the Escrow Account with YE-USA. Any credits, recoveries from insurance or third parties, offsets or reductions in the scope of the Additional Public Infrastructure work shall be first credited against the Private Funds. D. Termination Funding and Escrow Agreement WA 4638391.1 21667567.1 \146442 -00003 The City shall terminate the Escrow Account when all disbursements required to be made forthe Additional Public Infrastructure project are complete. 6, Construction Cost Contingency A. Contract Payable Through Public Funds if the total contract award for the selected contract bid is at least 113% less than available Public Funds,the City shall budget to withhold a project contingency fund In an o amount not to exceed of the total contract award to be authorized for increased costs as approved through any change order. g. Contract Exceeding Public Funds If the total contract award Is in excess of the Public Funds or exceeds the City's ability to - provide a 3%contingency fund,YF-USA shall provide the City with additional funds Into the Escrow Account as follows: I. Where the Public Funds will be sufficient to pay for the total contract award but not the contingency amount, YF-USA shag provide funds sufficient to provide the 3% contingency fund,or iI. Where the Public Funds will be insufficient to pay for the total contract award, YF-USA shall provide funds In an amount to pay for the total contract award that Is In excess of the Public Funds plus A;of the contract price to be used for the contingency Q fund. QQ 7, Indemnification YF-USA shall Indemnify and save the City and Its governing body members, directors, officers, employees and agents harmless from and against all loss, liability,damage or expense arising solely out of YF-USA's actions involving: the design, construction and completion of the Additional Public Infrastructure,or as a result of any breach,default or failure to perform by YF- USA under this Funding and Escrow Agreement(collectively referred to as"Claim"),so long as such Claim Is not caused, In whole or in part, by the City or the City's agents, employees or contractors. YF-USA shall also indemnify and save the City and Its governing body members, directors, officers, employees and agents harmless of, from and against, all costs, reasonable counsel fees, expenses and liabilities Incurred by them In any action or proceeding brought by Funding and Esaow Agreement - --- vA46ta39yf 21667567.11166662.ODW3 reason of any such Claim. If any action or proceeding Is brought against the City or its governing board members, directors, officers, employees or agents by reason of any such Claim, YF -USA, upon notice from the City, covenants to defend such action or proceeding on demand of the City or its governing body members, directors, officers, employees or agents. Nothing In this section shall constitute a waiver of governmental or officers immunity of the City or Its officers or employees. 8. Modification No modification of the terms of this Funding and Escrow Agreement shall be valid unless In writing and executed with the same formality as this Funding and Escrow Agreement, and no waiver of the breach of the provisions of any section of this Funding and Escrow Agreement shall be construed as a waiver of any subsequent breach of the same section or any other sections which are contained herein. 9. Further Assurances The parties agree to execute such other further documents as may be necessary to effectuate the purposes of this Funding and Escrow Agreement or that may be required by law. IN WITNESS WHEREOF, this Funding and Escrow Agreement has been duly executed by the parties hereto on the respective date appearing below each party's signature to be effective on the Effective Date herein specified. THE CITY OF RIVERSIDE, MISSOURI a Mis o rl municipal cor o ti By: �t 4Jit) A i Kathleen L. Rose, Mayor / Date: / Itr . . r ao /3 YANFENG USA AUTOMOTIVE TRIM SYSTEMS, INC. a Michiganncclorporraatiion Yapin Wang, Its President Date: // // 2710/3 Funding and Escrow Agreement WA4638391.1 L 216675675 \146442 -00003 EXHIBIT A LEGAL DESCRIPTION OF LOT 3 21667567.1 \146442 -00003 WA 4638391.1