HomeMy WebLinkAbout1546 Compliance Incentive Agreement US Farathane BILL NO. 2017-044 ORDINANCE NO. IS#LQ
AN ORDINANCE AUTHORIZING THE CITY TO ENTER INTO A COMPLIANCE INCENTIVE
AGREEMENT
WHEREAS, pursuant to the Real Property Tax Increment Allocation Redevelopment Act,
Sections 99.800 — 99.865, Revised Statutes of Missouri, as amended ('TIF Act'), the City of
Riverside, Missouri ("City") after recommendation by the Tax Increment Financing Commission
of Riverside, Missouri ("TIF Commission"), approved the L-385 Levee Redevelopment Plan, as
amended ("Redevelopment Plan"); and
WHEREAS, the Redevelopment Plan, includes approximately 700 acres of developable
property known as the ("Area"), and which was last amended through passage of Resolution
No. 2007-05-01 on May 23, 2007; and
WHEREAS, the City seeks certain information from U.S. Farathane, LLC, ("Company')
related to jobs created and maintained, as well as, confirmation of certain compensation and
benefits paid to the employees of the Company in its relocation to the City; and
WHEREAS, the City has determined that the development the Riverside Horizons Area
and submission of certain reports of such information sought, fulfills a public purpose and will
facilitate the growth and development of the City and the Riverside Horizons Area, improve the
environment of the City, increase the assessed valuation of the real estate situated within the
City, increase the revenues realized by the City, foster increased economic activity within the
City, increase employment opportunities within the City, enable the City to direct the
development of the Area, and otherwise be in the best interests of the City by furthering the
health, safety, and welfare of its residents and taxpayers; and
WHEREAS, the City and the Company desire to enter into the Compliance Incentive
Agreement, attached hereto as Exhibit A and incorporated herein, to provide additional incentive
to the Company to develop job growth within the Riverside Horizons Area, subject to the terms
and conditions of such Agreement.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE
CITY OF RIVERSIDE, MISSOURI AS FOLLOWS:
SECTION 1. APPROVAL OF COMPLIANCE INCENTIVE AGREEMENT. The
Compliance Incentive Agreement, attached hereto as Exhibit A and incorporated herein, is
hereby approved in substantially the form, and the City is hereby authorized to enter into,
execute and deliver such document to U.S. Farathane, LLC, ("Company").
SECTION 2. AUTHORITY GRANTED. The Mayor, the City Administrator, the City
Attorney, and other appropriate City officials are hereby authorized to take any and all actions,
as may be deemed necessary or convenient to carry out, and comply with this Ordinance and to
execute and deliver for and on behalf of the City, the attached Compliance Incentive Agreement
("Exhibit A") substantially in the same form as herein authorized.
SECTION 3. 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.
WA 9762234.1
SECTION 4. EFFECTIVE DATE. This ordinance shall be in full force and effect from
and after the date of its passage and approval.
BE IT REMEMBERED that the above was read two times by heading only, passed and
approved by a majority of the Board of Aldermen and APPROVED by the Mayor of the City of
Riverside Missouri this 6"'day of June, 2017.
/ ot�v� Q
M or Kathleen L. ose
A'FtESY
Robi Kincaid, City Clerk
0
s A
Approved as to form:
Jo Be ar, Special Counsel to the City
2 WA 9762234.1
EXHIBIT A
COMPLIANCE INCENTIVE AGREEMENT
(remainder of page intentionally left blank)
3 WA 9762234.1
AGREEMENT
THIS COMPLIANCE INCENTIVE AGREEMENT ("Agreement") is made and
entered into as of this6A day of June, 2017 ("Effective Date"), by and between the CITY OF
RIVERSIDE, MISSOURI, a city and political subdivision duly organized and existing under
the Constitution and laws of the State of Missouri ("City"), and US FARATHANE, LLC, a
corporation duly organized and existing under the laws of the State of Delaware ("Company").
Collectively City and Company are referred to hereafter as the"Parties".
RECITALS
WHEREAS,the City seeks certain information from the Company related to the number
of jobs created and maintained, as well as, ongoing confirmation of compensation paid and
benefits provided to the employees of the Company since its relocation to the City; and
WHEREAS, the Company's Riverside facility is located at 4600 NW 41s` St., Riverside,
Missouri ("Riverside Facility"); and
WHEREAS, City desires to provide additional incentive to the Company to create New
Jobs (as defined in Section 3 below) at the Riverside Facility, subject to the terms and conditions
of this Agreement; and
WHEREAS, the City desires to ensure the filing of certain reports confirming the
creation and maintenance of New Jobs at the Riverside Facility by the Company, and that the
Company submits certain reports required by the State of Missouri ("State"), or the City to
satisfy the requirements of any state or local incentive programs related to the Riverside Facility;
and
WHEREAS, the City believes that this Agreement fulfills a public purpose and will
further the growth of the City, facilitate the development of the Riverside Facility, improve the
environment of the City, support an increase in the assessed valuation of the real estate situated
within the City, increase the tax revenues realized by the City, foster increased economic activity
within the City, increase employment opportunities within the City, better enable the City to
direct the development within the City, and otherwise be in the best interests of the City by
furthering the health, safety, and welfare of its residents and taxpayers.
AGREEMENT
Now, therefore, in consideration of the premises and promises contained herein and other
good and valuable consideration, the adequacy and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. Recitals Incorporated Herein. The Recitals set forth above in this Agreement
are incorporated into and made a part of this Agreement as if filly set forth in this Section 1.
2. Exhibits Incorporated. The Exhibit referenced in this Agreement is
incorporated into and made a part of this Agreement as if fully set forth in this Section 2.
WA 9761430.1
3. Definitions. As used in this Agreement, certain words and terms shall have the
meanings as set forth below.
(a) "Base" means the amount of payroll taxes paid, the base payroll and/or
the number of employees employed by the Company at the end of the State of Missouri's
fiscal year ending June 30, 2015, which the parties agree was $0.00;
(b) "Certification" means that certain documentation required by the City to
be provided by the Company, including an annual report of the number of jobs, total
payroll, and such other information as is required by the City in the form attached hereto
as Exhibit A to this Agreement, all of which is to document the Company's Payroll, and
which form may be reasonably amended from time to time by the City to meet the
requirements of the State and local incentive programs;
(c) "Commencement of Operations" means the starting date for the
Company's first new employee at the Riverside Facility;
(d) "Company" means US Farathane, LLC, a public corporation organized
for profit, registered to do business in Missouri and who is the owner and/or operator of
the Riverside Facility and who offers health insurance to all full-time employees of all
facilities located in this state, and pays at least fifty percent of such insurance premiums,
and creates a New Investment;
(e) "Full-Time Employee" means an employee of the Company that is
scheduled to work an average of at least thirty-five hours per week for a twelve-month
period, and one for which the Company offers health insurance and pays at least fifty
percent of such insurance premiums;
(f) "New Investment" means the purchase or leasing of new tangible assets
placed in operation within Riverside Horizons, which are directly related to the New
Jobs;
(g) "New Jobs" means the number of Full-Time Employees located at the
Riverside Facility that exceeds the facility's Base employment. An employee that spends
less than fifty percent of the employee's work time at the facility is still considered to be
located at a facility if the employee receives his or her directions and control from that
facility, is on the facility's payroll, and one hundred percent of the employee's income
from such employment is Missouri income;
(h) "New Payroll" means the aggregate amount of annual taxable wages paid
to the Full-Time Employees, excluding owners, located at the Riverside Facility that
exceeds the Riverside Facility's Base Payroll;
(i) "Notice of Intent" means the form previously submitted to the City and
State of Missouri which stated the Company's intent to hire new employees in Missouri
and the City;
2 WA 9761430.1
(j) "Qualified Payroll" means the annual New Payroll for which the
Company has provided Certification to the City;
(k) "Riverside Facility" means the building used by the Company in the
Horizons Business Park at which the new jobs and new investment is located;
(1) "Riverside Facility Base Employment" means Zero for the purpose of
this Agreement;
(m) "Riverside Facility Base Payroll" means the total amount of taxable
wages paid by the Company to full-time employees of the Company located at the
Riverside Facility in the twelve months prior to the Notice of Intent, not including the
payroll of the owners of the Company, unless the Company is participating in an
employee stock ownership plan;
(n) "Incentive Period" means the time period that the incentive is provided
to the Company;
(o) "Total Payroll" means the total amount of taxable wages of Full-Time
Employees located at the Riverside Facility.
4. Term and Company's Duties. The City hereby offers the Company, and the
Company hereby accepts,the terms and conditions set forth in this Agreement.
4.1 Initial Term. This Agreement will commence on the Effective Date and
will terminate in year 2021, unless this Agreement is renewed or terminated under the
provisions of this Section 4.
4.2 Renewal Term. Following the Initial Term, the Agreement may be
extended for one (1) year upon the mutual written agreement of the Parties.
4.3 Termination. The City may immediately terminate this Agreement and
the Company's rights hereunder without further notice or liability to the Company upon
the occurrence of any of the following"for-cause" events:
a. The Company relocates all or a substantial number of employees from its
Riverside Facility, the number of which shall be memorialized with a
written addendum signed by the parties to this agreement;
b. The Company applies for or consents to the appointment of a receiver,
trustee or liquidator or for all or a substantial part of the Company's
assets;
C. The Company files a voluntary petition in bankruptcy;
d. The Company admits in writing to the City its inability to pay its debts as
they become due;
3 WA 9761430.1
e. The Company makes a general assignment of its assets for the benefit of
its creditors;
f. The Company files a petition or an answer seeking reorganization or
arrangement with creditors or to take advantage of any insolvency law;
g. An order, judgment or decree is entered by any court of competent
jurisdiction on the application of a creditor adjudicating the Company as
bankrupt or insolvent, or approving a petition seeking reorganization of
the Company, or appointing a receiver, trustee or liquidator for the
Company, for all or a substantial part of the Company's assets, and such
order, judgment or decree continues in effect for more than sixty (60)
days; and
h. The Company commits a misdemeanor involving moral turpitude or any
felony.
In the event that City terminates this Agreement, City shall have no liability to the
Company; provided, however, that no termination of this Agreement shall affect any
amounts otherwise payable to the Company hereunder prior to the termination. No
failure by City to assert its rights to terminate "for cause" shall constitute a waiver of
City's rights or remedies with respect to such event or any subsequent occurrence of any
of the foregoing.
4.4 The Company's Obligations. The Company shall submit certification no
less than quarterly or otherwise determined by the Company and the City.
4.5 Independent Contractor. The Parties intend that the Company's legal
status with respect to City shall be that of independent contractor. The Parties expressly
disclaim any intent to create an agency relationship between the City and the Company.
Accordingly,the Company shall be an independent contractor with respect to their rights,
duties and obligations under this Agreement.
5. Payments. The Company shall receive, as payment for satisfying the Company's
reporting obligations in Section 4.4, in accordance with Section 5.1 below, at the Riverside
Facility which creates New Payroll in excess of the Base annually.
5.1 Subject to Section 5.2 below, in consideration of the Commencement of
Operations and compliance with Section 4.4 above, upon execution of this Agreement,
the Company shall receive a payment of Thirty-Five Thousand Nine Hundred Fifteen and
72/100 Dollars ($35,915.72) as an incentive to execute this Agreement. In addition, no
later than September 30, 2018, and no later than September 30, in the years 2019, 2020
and 2021, the Company shall receive an amount equal to the ratio of $6,000 per
$1,000,000.00 of the Qualified Payroll of the immediately preceding calendar year.
5.2 All payments made by the City to the Company pursuant to Section 5.1
above shall be subject to the following conditions:
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a. All payments made by the City are subject to annual appropriation;
b. All payments made by the City are subject to submission by the Company
of Certification of its payroll to the Missouri Department of Economic
Development and the City as required by the State or City;
C. The Company acknowledges that other companies may enter into similar
agreements with the City ("Qualified Companies"), and the cap described
in Exhibit B (the "Cap") shall mean the maximum amount of funds that
may be available to be paid to all Qualified Companies. The Company
further understands and acknowledges that in no event shall the Company
be entitled to any payments described in this Agreement in excess of the
Cap or in excess of the Company's prorata share of such Cap based upon
the number of companies and incentives available in the applicable
calendar year.
The Company shall not be entitled to payments in the event the Company fails to meet the
requirements described in this Section 5.
6. General Provisions
6.1 Power of the City. Notwithstanding anything set forth in this Agreement
to the contrary, no provision contained herein shall in any manner diminish or usurp the
inherent rights and powers of the City to act in its capacity as a public body. All financial
obligations of the City pursuant to this Agreement shall be subject to future appropriation
in accordance with applicable local, state and federal laws and requirements. Further,
nothing herein shall relieve the Company from complying with all applicable local, state
and federal laws and requirements.
6.2 Time. Time is of the essence in this Agreement. The Parties will make
every reasonable effort to expedite the subject matters hereof and acknowledge that the
successful performance of this Agreement requires their continued cooperation.
6.3 Sovereign Immunity. Nothing in this Agreement shall constitute or be
construed as a waiver of the City's governmental or official immunity of its officers or
employees from liability or suit pursuant to Section 537.600 RSMo.
6.4 Authorized Employees. The Company acknowledges that Section
285.530, RSMo, prohibits any business entity or employer from knowingly employing,
hiring for employment, or continuing to employ an unauthorized alien to perform work
within the State of Missouri. The Company therefore covenants that they are not
knowingly in violation of subsection 1 of Section 285.530, RSMo, and that they will not
knowingly employ, hire for employment, or continue to employ any unauthorized aliens
to perform work at the Riverside Facility which is the subject of this Agreement, and that
its employees are lawfully eligible to work in the United States. The Company will
execute an Immigration Law Compliance Affidavit in a form satisfactory to the City and
5 WA 9761430.1
will cause any person or entity performing work at the Riverside Facility to confirm
compliance with Section 285.530(1) and execute an Immigration Law Compliance
Affidavit.
6.5 Binding Effect; Successors/Assigns. This Agreement shall be binding on
and shall inure to the benefit of the parties named herein and their permitted successors
and assigns. The rights, duties and obligations of the Company under this Agreement
may not be assigned.
6.6 Notices. All notices, demands, consents, approvals, certificates and other
communications required by this Agreement to be given by any party hereunder, shall be
in writing and shall be hand delivered or sent by United States first class mail, postage
prepaid, addressed to the appropriate party at its address set forth below, or at such other
address as such party shall have last designated by notice to the other. Notices, demands,
consents, approvals, certificates and other communications shall be deemed given when
hand-delivered or three days after mailing; provided, however, that if any such notice or
other communication shall also be sent before 5:00 p.m. Central Time, on any Business
Day by electronic mail, telecopy or fax machine, such notice shall be deemed given at the
time and on the date of machine transmittal; and if sent after 5:00 p.m. Central Time, then
on the next Business Day if the sending party receives a written send verification on its
machines and forwards a copy thereof with its mailed or courier delivered notice or
communication.
In the case of the Company,to:
Jim Gregory
US Farathane, LLC
2700 High Meadow Circle
Auburn Hills, MI 48326
Phone: (248) 754-7000 Ext. 1213
Facsimile: (248) 276-2601
With a copy to:
Quentin Cole
US Farathane, LLC
4600 NW 415` St
Riverside, MO 64150
Phone: (816)448-7800 Ext, 2620
Facsimile: (816) 741-5690
In the case of the City,to:
City of Riverside
City Hall
2950 NW Vivion Road
Riverside, MO 64150
Attention: City Administrator
Facsimile: (816) 746-8349
6 WA 9761430.1
With a copy to:
City of Riverside
City Hall
Attention: City Attorney
2950 NW Vivion Road
Riverside, MO 64150
Facsimile: (816) 746-8349
6.7 Conflict of Interest. No member of the Board of Aldermen, or any
branch of the City's government who has any power of review or approval of any of the
Company's undertakings, or of the City's contracting for goods or services for the
Riverside Horizons Area, shall participate in any decisions relating thereto which affect
that member's personal interests or the interests of any corporation or partnership in
which that member is directly or indirectly interested. Any person having such interest
shall immediately, upon knowledge of such possible conflict, disclose, in writing, to the
Board of Aldermen the nature of such interest and seek a determination by the Board of
Aldermen with respect to such interest and, in the meantime, shall not participate in any
actions or discussions relating to the activities herein proscribed.
6.8 Choice of Law. This Agreement shall be taken and deemed to have been
fully executed,made by the parties in, and governed by the laws of, the State of Missouri,
for all purposes and intents without regard to conflict of law statutes.
6.9 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall constitute one and the same instrument.
6.10 Severability. In the event any term or provision of this Agreement is held
to be unenforceable by a court of competent jurisdiction, the remainder shall continue in
full force and effect, to the extent the remainder can be given effect without the invalid
provision.
6.11 Representatives Not Personally Liable. No elected or appointed
official, agent, employee or representative of the City shall be personally liable to the
Company in the event of any default or breach by any party under this Agreement, or for
any amount which may become due to any party or on any obligations under the terms of
this Agreement.
6.12 Attorney's Fees. The City, on the one hand, and the Company, on the
other hand, each shall be responsible for the fees and expenses of their respective legal
counsel incurred in connection with this Agreement and the transactions contemplated
hereunder; provided, however, in any dispute arising out of or relating to this Agreement,
the prevailing party in any legal proceeding shall recover from the non-prevailing party
the prevailing party's reasonable attorney's fees.
7 WA 9761430.1
6.13 Entire Agreement; Amendment. It is agreed and understood by the
Parties that this Agreement embodies the entire understanding and represents the full and
final agreement among the Parties with respect to the subject matter hereof, and
supersedes any and all prior commitments, agreements, discussions, representations, and
understandings, whether written or oral, relating to the subject matter hereof; that this
Agreement may not be contradicted or varied by evidence of prior or contemporaneous
written or oral agreements or discussions of the Parties, or subsequent oral agreements or
discussions of the Parties; that there are no oral agreements among the Parties, and that
no representations, agreements or promises not set forth herein have been made. Without
limiting the foregoing, the Company acknowledges that: (i) no promise or commitment
has been made to them by or on behalf of the City other than as set forth in this
Agreement; and (ii) except as otherwise expressly provided herein, this Agreement
supersedes and replaces any and all proposals, letters of intent and approval and
commitment letters relating to the subject matter hereof, none of which shall be
considered a part of this Agreement unless expressly incorporated into this Agreement.
This Agreement shall be amended only in writing and effective when signed by the
Parties.
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8 WA 9761430.1
IN WITNESS WHEREOF,the City and the Company have caused this Agreement to be
executed in their respective names as of the date first above written.
APPROVED AS TO FORM
Ci ney
"CITY" CITY OF RIVERSIDE,MISSOURI
By: Zt4�
,
Ka leen L. Rose, Mayor
Attest:
Kobin {intiaid City Clerk
STATE OF MISSOURI )
) SS.
COUNTY OF PLATTE )
On this It day of 2017, before me appeared Kathleen L. Rose,
to me personally known, who, being by me duly swom, did say that she is the Mayor of the
CITY OF RIVERSIDE, MISSOURI, a political subdivision of the State of Missouri, and that the
seal affixed to the foregoing instrument is the seal of said City, and said instrument was signed
and sealed on behalf of said City by authority of its Board of Aldermen, and said individual
acknowledged said instrument to be the free act and deed of said City.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in
the County and State aforesaid, the day and year first above written.
Notary Public
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9 WA 9761430.1
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"COMPANY" By:
Name
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STATE OT
SS.
On this day of 2017, before me appeared
to me ponionally known,who,being by me duly sworn,did say that he
is the R of . U6 FnOft& and that he is authorized to sign the
instrument on behalf of said company by authority of its members,and acknowledged to me that
he executed the within instrument as said company's bee act and deed.
W TESTIMONY WHEREOF,I have hereanto set my hand and affixed my official seal in
the County and State aforesaid,the day and year fist above written.
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EXHIBIT A
CERTIFICATION
1 1 WA 9761430.1
EXHIBIT B
CALENDAR FUNDS AVAILABLE
YEAR FOR ALL COMPANIES
2017 $745,858
2018 $756,675
2019 $767,562
2020 $778,518
2021 $789,543
12 WA 9761430.1
WORK AUTHORIZATION AFFIDAVIT
PURSUANT TO 285.530,RSMo
STATE OF MISSOURI )
)ss.
COUNTY 01`11a- &)
As used in this Affidavit,the following terms shall have the following meanings:
EMPLOYEE: Any person performing work or service of any kind or character for hire within the State of
Missouri.
FEDERAL WORK AUTHORIZATION PROGRAM: Any of the electronic verification of work authorization programs
operated by the United States Department of Homeland Security or an equivalent federal work authorization
program operated by the United States Department of Homeland Security to verify information of newly hired
employees,under the immigration Reform and Control Act of 1986(IRCA),P.L.99-603.
KNOWINGLY: A person acts knowingly or with knowledge,(a)with respect to the person's conduct or to
attendant circumstances when the person is aware of the nature of the person's conduct or that those
circumstances exist;or(b)with respect to a result of the person's conduct when the person is aware that the
person's conduct is practically certain to cause that result.
UNAUTHORIZED ALIEN: An alien who does not have the legal right or authorization under federal law to work in
the United States,as defined In 8 U.S.C.1324a(h)(3).
BEFORE ME,the undersigned authority,personally appeared--LAVAUkLyvho,being duly sworn,
states on his oath or affirmation as follows:
1.My name is 04 It orh&. and 1 am currently th 'at --
at –—�t�r
(— � g rye 1 I S� (hereina re "Contractor"),whose business
address is and I am authorized to make this
Affidavit. / C 41ro
2. 1 am of sound mind and capable of making this Affidavit,and am personally acquainted with the facts stated
herein.
3.Contractor is enrolled in and participates in a federal work authorization program with respect to the
employees working in connection with the City of Riverside
4. Contractor does not knowingly employ any person who is an unauthorized alien in connec_ttiionwith thee
contracted services
,set forth above.
94 x
Affiant' � �' IV
Printed Name
Subss d and s o o e or th day,of ��U 201 .
Notary Public HEATHER DANIEL$
NSTA E OF MISSOURIa
8 Clay County
My Commission
#x16262386 2020