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HomeMy WebLinkAbout1790 Renew US Farathane, LLC Compliance Incentive Agreement Previously Authorized by Ordinance No. 1546 BILL NO. 2021-033 ORDINANCE NO. / AN ORDINANCE AUTHORIZING THE CITY TO RENEW A COMPLIANCE INCENTIVE AGREEMENT PREVIOUSLY AUTHORIZED BY ORDINANCE NO. 1546 WHEREAS, the City has determined that the development of 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 continues to seek 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 and the Company desire to extend the Compliance Incentive Agreement previously approved by Ordinance 1546 on the 8th day of June, 2017, attached hereto as Exhibit A and incorporated herein, said Agreement through September 30, 2022, to continue 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 EXTENSION OF COMPLIANCE INCENTIVE AGREEMENT. The Compliance Incentive Agreement originally approved on the 81h day of June, 2017, attached hereto as Exhibit A and incorporated herein, is hereby approved in substantially the same form, and the City is hereby authorized to enter into, execute and deliver an Extension of said Agreement extending said Agreement through September 30, 2022, to and with the 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 Extension Agreement ("Exhibit B") 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. 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 3 d day of August, 2021. M or Kathleen L. Rose ATTES Robin Kincaid, City Clerk Approved as to form: Joe B nar, Sp ial Counsel to the City JC 17501160.1 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 this<�A 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 41" 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 fully 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: 4 WA 9761430.1 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 41 S`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. (The remainder of this page is intentionally left blank.) 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 ey "CITY" CITY OF RIVERSIDE,MISSOURI By: *Katleen L. Rose, Mayor y s Attest: obin �incxid;City Clerk STATE OF MISSOURI ) ) SS. COUNTY OF PLATTE ) On this 4f!*- day of �u � ,2017, before me appeared Kathleen L. Rose, to me personally known, who, being by me duly sworn, 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 Pu iic My Commission Expires:'] � , NMLgYf?W .VAI. pMoa Qtr ' f, �'4rn n�lOd9t 9 WA 9761430.1 i "COMPANY" By: Name- a: m IChr to STATS OF Mis oupa ) j ) SS. COUNTY OF d ) On this day of T(JJA e. , 2017, before me appeared to me personally known,who,bebig by me duly sworn,did say that he is the Fd , of _ dS 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 free act and deed. IN TESTIMONY WHEREOF,I have hereunto set my hand and affixed my official seat in the County and State aforesaid,the day and year fust above written, otaly Pub tilt •1;� . TERRY L WOZMAK Notary Public,State of Michigan ct County of Macomb My Commission Expires 12-23-2_ ,{J 2 !' • ' " Acting In the County of '• + My Commission Expires: la -.2 3-aoa-I t(} WA 9761430.1 EXHIBIT B COMPLIANCE INCENTIVE AGREEMENT (remainder of page intentionally left blank) 3 WA 9762234.1 AGREEMENT THIS AGREEMENT EXTENDING the Compliance Incentive Agreement originally approved by 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") on the 8th day of June, 2017, is hereby made and entered into as of this 3��—day of August, 2021 ("Effective Date"), by and between the 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 continues to seek 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, the City continues to desire 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 the Compliance Incentive Agreement originally approved by the City on the 8th day of June, 2017, ("Compliance Agreement"); and WHEREAS, the City continues to desire 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 continue to submit 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 the Extension of the 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: JC 17501160.1 1. Recitals Incorporated Herein. The Recitals set forth above in this Agreement are incorporated into and made a part of this Agreement as if fully 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. 3. Renewal Term. The Parties hereby agree to extend the Term of the Compliance Incentive Agreement approved by the City on the 8th day of June 2021, through December 31, 2022, pursuant to Section 4.2 of said Agreement. 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. CITY M or Kathleen L. Rose ATTEST. . Robin Kincaid, City Clerk Approved as to form: Joe Anar, ecial Counsel to the City JC 17501160.1 B Na ftle: C6 oltf0 rncch�gar� STATE OF M-�990= ) ) SS. COUNTY OF On this _��p day of 2021, before me appeared ��►�ko,,[x, , to me personally known,who,being by me duly sworn, did say that he is the _ C C--o of ai{ A eaw , and that he is authorized to sign the j 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 free act and deed. 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. N tary Public TERRY L WOZNIAK Notary Public, State of Michigan County of Macomb My Commission Expires 12-23-2021 Acting In the County of My Commission Expires: