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HomeMy WebLinkAbout2014-03-8128ORDINANCE NO. 2014 -3-8128 AN ORDINANCE OF THE CITY`OF PAD1JCA14, kENTUCKY, APPROVING AND AUTHORIZING THE EXECUTION OF AN INTERLOCAL COOPERTIV,E AGREEMENT AMONG THE CITY OF PADUCAH, KENTUCKY, 'THE COUNTY'�OF MCCRACKEN, KENTUCKY, AND G.P.E.D.C., INC. WHEREAS, City and County are each - owners. of an undivided '/2 interest in certain a spec building (the "Building") located: at 5455 Commerce Drive (the "Project Site"), in Paducah, McCracken County, Kentucky; and ' WHEREAS, City and County have ,acompelling public interest in fostering economic development, promoting the development of a. skilled workforce, relieving conditions of unemployment, replacing lost jobs, expanding local tax bases; and increasing general commerce, all to the benefit of the citizens and residents .of the city of Paducah and the county of McCracken, Kentucky; and WHEREAS, City and County ,have determined that in order to accomplish the public purposes of City and County, it is desirable and necessary.for City and County to construct the Project Improvements to the Building located on the Project Site utilizing the Construction Allowance funded by City and County, and that City and County shall lease the Building as improved and the Project Site (collectively, the "Premises").to MACCO Organiques Corporation (the "Corporation") for the purposes of locating, installing, equipping, operating and managing an industrial/distribution facility and the hiring and maintaining 40 new full-time employees at the Premises (the "Project"), all as more particularly set forth in a certain Lease Agreement, as the same may be amended or supplemented, dated May 31, 2013, among the Corporation, as lessee, and IDA, as lessor, and subsequently assigned to City and County, as lessors; and WHEREAS, City, County, and GPEDC:desire to enter into an agreement which sets forth the common plan of construction that the City of Paducah, County of McCracken, and G.P.E.D.C., Inc., ("GPEDC") will follow together to undertake the construction of Project ' Improvements to the building and site situated at 5455 Commerce Drive, Paducah, McCracken County, Kentucky in the most cost effective manner for a rental arrangement with MACCO Organiques Corporation; and WHEREAS, pursuant to Sections 65.210 to 65.300, 'inclusive, of the Kentucky Revised Statutes, as amended (the "Interlocal Act"), the. City and the County may join together to accomplish what each may accomplish individually. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF PADUCAH, KENTUCKY, AS FOLLOWS: Section 1. The City of Paducah, Kentucky, hereby approves the Interlocal Cooperative Agreement between the City of Paducah, Kentucky, the County of McCracken, Kentucky, and G.P.E.D.C. Inc, in substantially the form attached hereto as Exhibit A and made part hereof. It is hereby found and determined that the Interlocal Cooperative Agreement furthers the public purposes of the City and it is in the best interest of the citizens, residents and inhabitants of the City that the City enter into the Interlocal Cooperative Agreement for the purposes therein specified and the execution and delivery of the Interlocal Cooperative Agreement is hereby authorized and approved. The Mayor is hereby authorized to execute the Interlocal Cooperative Agreement, together with such other agreements, instruments or certifications which may be necessary to accomplish the transaction contemplated by the Interlocal Cooperative Agreement with such changes in the Interlocal Cooperative Agreement not inconsistent with this Ordinance and not substantially adverse to the City as may be. approved by the official executing the same on behalf of the City. The approval of such changes by said official, and that such are not substantially adverse to the City, shall be conclusively evidenced by the execution of such Interlocal Cooperative Agreement by such official. Section 2. Severability. If any section, paragraph or provision of this Ordinance shall be held to be invalid or unenforceable for any reason, the invalidity, or unenforceability of such ,1 .. .,-. ... ..... e.. ..,Al..� ' _.... � I._..ii'.—. T ITS T lid�.1_a_iwLsnL.. 760 section, paragraph or provision shall not affect any. of the remaining provisions of this Ordinance. Section 3. Compliance With Opera Meetings Laws. The City Commission hereby finds and determines that all formal actions -relative to the adoption of this Ordinance were taken in an open meeting of this City Commission, and that all deliberations of this City Commission and of its committees, if any, which resulted in formal action; were in meetings open to the public, in full compliance with applicable legal. requirements. Section 4. Conflicts. All ordinances, -resolutions, orders or parts thereof in conflict with the provisions of this Ordinance are, to the extent of such conflict, hereby repealed and the provisions of this Ordinance shall prevail and be given effect. Section 5. Effective Date. This Ordinance shall be read on two separate days and will become effective upon summary publication pursuant to KRS Chapter 424. MAYO A TTF.RT- Introduced by the Board ofCommissioners, March 1.1 ,2014 Adopted by the Board of Commissioners, March 25, 2014 Recorded by City Clerk, March 25, 2014 Published by The Paducah Sun, April 2, 2014 2 EXHIBIT A INTERLOCAL COOPERATIVE AGREEMENT 761 762 170077 INTERLOCAL COOPERATION AGREEMENT THIS INTERLOCAL COOPERATION. AGREEMENT (this "Agreement') made and entered into as of the day of March 2014 by and between the CITY OF PADUCAH, KENTUCKY ("City"), the COUNTY OF McCRACKEN, KENTUCKY ("County"), and G.P.E.D.C., INC., a Kentucky non-profit corporation, doing business under the assumed name of Greater Paducah Economic Development Council, ("GPEDC"). WITNESSETH WHEREAS, City and County are each owners of an undivided %2 interest in certain a spec building (the "Building"� located at 5455 Commerce Drive (the "Project Site"), in Paducah, McCracken County, Kentucky, which property is more particularly described in Exhibit A; and WHEREAS, City and County have a compelling public interest in fostering economic development, promoting the development of a skilled workforce, relieving conditions of unemployment, replacing lost jobs, expanding local tax bases, and increasing general commerce, all to the benefit of the citizens and residents of the city of Paducah and the county of McCracken, Kentucky; and WHEREAS, City and County have determined that in order to accomplish the public purposes of City and County, it is desirable and necessary for City and County to construct the Project Improvements to the Building located on the Project Site utilizing the Construction Allowance funded by City and County, and that City and County shall lease the Building as improved and the Project Site (collectively, the "Premises") to MACCO Organiques Corporation (the "Corporation") for the purposes of locating, installing, equipping, operating and managing an industrial/distribution facility and the hiring. and maintaining 40 new full-time employees at the Premises (the "Project"), all as more particularly set forth in a certain Lease Agreement, as the same may be amended or supplemented, dated May 31, 2013, among the Corporation, as lessee, and IDA, as lessor, and subsequently assigned to City and County, as lessors (the "Lease") (terms not otherwise defined herein shall have the. same meaning as set forth in the Lease); and WHEREAS, pursuant to Sections 65.210 to 65.300, inclusive, of the Kentucky Revised Statutes, as amended (the "Interlocal Act") City and County may join together to accomplish what each may accomplish individually; and WHEREAS,..as a result to the foregoing findings, City and County have determined that it is advantageous and in the best interests of the inhabitants of the City and the County that City and County proceed together to undertake the construction of the Project Improvements in the most cost effective manner pursuant to this Agreement and the Interlocal Act; and WHEREAS, City, County, and GPEDC now wish to establish their respective rights and duties in connection with the construction of the Project Improvements on the Project Site, all in accordance with the Interlocal Act; NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS BETWEEN THE PARTIES, IT IS AGREED AS FOLLOWS: 1. DEFINITIONS "BUILDING" shall mean that certain existing spec building as improved by the Project Improvements located on the Project Site. "CITY" means the City of. Paducah, Kentucky acting by and through its City Commission. "CITY'S CONTRIBUTION" means the amount of $1,250,000 to be committed by City for the Construction Allowance. "CONSTRUCTION AGREEMENT" shall mean (i) the construction agreements between City, County, and contractor or contractors selected by the Project Manager with respect to the 763 construction of the Project Improvements and (ii) all agreements related to the construction of the Project Improvements. "CONSTRUCTION ALLOWANCE" shall mean up to and not to exceed $2.5 million committed by City and County pursuant to the MOU for the construction of the Project Improvements on the Project Site. "CONSTRUCTION FUND means the account established by GPEDC into which the Contributions shall be deposited. "CORPORATION" shall mean MACCO ORGANIQUES CORPORATION, a Kentucky corporation. "COUNTY" means the County of McCracken, Kentucky acting by and through its Fiscal Court. "COUNTY'S CONTRIBUTION" means the amount of $1,250,000 to be committed by County for the Construction Allowance. "GPEDC" shall mean the G.P.E.D.C., INC., doing business under the assumed name of the Greater Paducah Economic Development Council, Inc., a Kentucky not -for -profit - corporation. "LEASE" means the Lease Agreement dated. May. 31, 2013 among the Corporation, as lessee, and IDA, as lessor, which lease was subsequently assigned to City and County, as lessors. "INTERLOCAL ACT" means KRS 65.210 through 65.300. "KRS" means the Kentucky Revised Statutes, as amended. "PREMISES" shall mean, collectively, the Building, the Project Improvements and the Project Site. "PROJECT" shall mean the locating, installing, equipping, operating and managing an industrial/distribution facility by Lessee, and the efforts of Lessee to meet the Employment Commitment, all as more particularly set forth in this Lease and the MOU. "PROJECT IMPROVEMENTS" shall mean the renovation of the Building and site preparation of the Project Site to create a space and environment reasonably suitable for the operation of the Project as contemplated by the Project Plans. The renovation of the Building shall be designed and completed in such manner and to such standards as to comply with state, local and federal regulations applicable thereto. "PROJECT EVALUATOR". shall mean the authorized designee of Peck Flannery Gream Warren, Inc., a Kentucky corporation with a principal office located at 101 South 4t' Street, Paducah, Kentucky 42001. "PROJECT MANAGER" shall mean GPEDC. "PROJECT SITE" shall mean the site on which the Building is located and the Project Improvements and the Lessee Improvements are to be located and Lessee is to equip, operate and manage the Project, which site is generally located at 5455 Commerce Drive, Paducah, McCracken County, Kentucky, and is more particularly described in Exhibit A attached hereto. 2. GENERAL CONSTRUCTION PLAN It is the intention of the parties to this Agreement to set forth their respective rights and duties in connection with the construction of the Project Improvements on the Project Site. The Contributions of City and County shall be utilized to fund the Construction Allowance. City and County shall timely deliver their respective Contribution to the Project Manager. Upon receipt of the Contributions, the Project Manager shall place the Contributions into a non-interest bearing account in federally insured institution (the "Construction Fund"), and 2 764 thereafter hold the Construction Fund, subject to the instructions and understandings as provided under this Agreement. The Construction Fund shall be remitted by the Project Manager to pay the costs of the construction of the Project Improvements on the Project Site up to an amount not to exceed the Construction Allowance. Pursuant to the Lease, the Corporation shall be responsible, at its own cost, for the design and construction of the Project Improvements in excess of the Construction Allowance. City and County shall cause, supervise, and oversee, through the Project Manager, the design, construction and completion of the Project Improvements in such manner and to such standards as to comply with state, local and federal regulations applicable thereto and to create a space and environment reasonably suitable for the operation of the Project. The Project Manager may retain the professional services of a qualified Project Evaluator who shall assist the Project Manager in administering the construction of the Project, and the remittance of the Construction Fund. In relation thereto, the Project Evaluator shall have the right and authority to (i) inspect the construction work that has been provided on the Project Improvements, (ii) consult with the contractor and its subcontractors and material providers on construction matters and costs, (iii) verify that the Project Improvements are being constructed in accordance with the construction plans and specifications, (iv) verify the costs of construction and the percentage of completion of construction, (v) approve or reject applications for payments; and (vi) perform any other activity as directed by the Project Manager on behalf of City and County. The Premises is owned by - City and County and is leased to the Company in accordance with the Lease. City and County shall deliver possession of the Premises as improved to the Company on the date a certificate of occupancy for the Premises has been issued by the appropriate governmental authority (the "Commencement Date"). 3. GPEDC TO ACT AS PROJECT MANAGER FOR ADMINISTRATION OF THIS AGREEMENT AND CONSTRUCTION OF PROJECT IMPROVEMENTS In connection with the administration of this Agreement and the construction of the Project Improvements, City and County designate GPEDC as the Project Manager for all purposes relating to the construction of the Project Improvements, including without limitation the following: (a) Review of the design of the Project Improvements. (b) Obtain competitive bids in accordance with the Kentucky Model Procurement Code (KRS Chapter 45A), the Procurement Code of the City of Paducah and all other applicable legal requirements including, without limitation, prevailing wages, for the construction work that is required for the construction of the Project Improvements; and award the contract to the responsible bidder who submits the responsive bid of the lowest evaluated bid price as reasonably determined by the Project Manager after consultation with the City Manager and the County's Deputy Judge Executive. (c) Negotiation of the Construction Agreement for the construction of the Project Improvements in a timely and workmanlike manner that is in accordance with generally accepted construction practices, which construction agreement shall be submitted to and approved by the governing bodies of City and County. (d) Timely completion of the construction of the Project Improvements and obtaining a certificate of occupancy for the Premises issued by the appropriate governmental authority (e) Upon completion of the construction, Project Manager shall obtain final lien waivers from the contractor and its subcontractors and material providers which effectively release their lien interests against the Premises. (f) Performance of all other duties customarily incident to the foregoing provisions of subparagraph (a), (b), (c), (d) and (e). Actions heretofore taken by the Project Manager in such respects are expressly affirmed and ratified by City and County. 3. - ---- 765 -765 4. APPLICATIONS TO THE PROJECT MANAGER FOR PAYMENT OF CONSTRUCTION COSTS. The Construction Fund shall be disbursed by the Project Manager as follows: (a) Written requests for payment of the costs of the Project Improvements payable under the Construction Agreement in such amounts not to exceed the Construction Allowance shall be submitted to the Project Manager, subject to the provisions and restrictions of this Section. (b) All requests for payments shall be evidenced by a properly completed AIA construction form G702 (Application and Certificate for Payment) that has been duly executed by the contractor, and approved by the Corporation's architect. Requests for payments shall also included interim mechanic and materialmen lien waivers that have been duly executed by the contractor, and its subcontractors and material providers, which shall contain . the amount of payments received by each of them, and a lien waiver to the extent of those amounts. (c) Upon receipt of a request for payment, the Project Manager shall submit a copy of the request to the Project Evaluator for approval. The Project Evaluator shall review and evaluate the construction costs and other information contained in the request and determine whether the application is in conformance with the Construction Agreement. In the event the Project Evaluator approves the application, the Project Evaluator shall submit the application to the Project Manager for its review and acceptance. (d) If the Project Evaluator approves the application, the Project Manager shall remit the requisition out of the Construction Fund, provided, however, (i) the amounts requisitioned do not exceed the Construction Allowance, (ii) there has not been filed with or served upon City, County or the Project Manager notice of any lien or attachment upon, or claim affecting the right to receive payment of any of the amounts requisitioned and payable to any of the persons, firms or corporations named in such application which has not been released or will not be released simultaneously with such payment, and (iii) such requisition contains no item representing payment on account of any retained percentages of the cost of construction of the Project Improvements which City and County are at the date of such requisition entitled to retain. (e) The Project Evaluator shall reject an application (or any part thereof) for nonconformance, incompleteness, inaccuracy, nonperformance of work, nonconforming work, failure to perform, and other valid grounds. In the event the Project Evaluator rejects an application (or any part thereof), the Project Evaluator shall issue a written directive which sets forth (i) the portion of the application that has been rejected, (ii) the grounds for the rejection, and (iii) the portion of the request that has been approved for processing. The Project Manager shall have final approval on all applications for payment. In the event, the Project Manager rejects any application (or any part thereof), the Project Manager shall comply with the rejection procedure as set forth in this paragraph. (f) An application rejected by the Project Evaluator or the Project Manager shall not be paid until a cure or remedy is provided by the contractor and approved by the Project Evaluator and the Project Manager, whichever is applicable. (g) All reasonable costs and expenses incurred by the Project Manager as a result of this Agreement, including without limitation attorney fees and cost of the Project Evaluator's services, shall be paid out of the Construction Fund. (h) The Project Manager shall keep and maintain complete and detailed records with respect to the Construction Fund. Additionally, the Project Manager shall provide timely notice of all remittances from the Construction Fund to the City Manager and the County's Deputy Judge Executive. The notice shall include without limitation the request. for payment and supporting documentation. (i) At such time as ,all moneys due to" be disbursed from the Construction Fund have been so disbursed and paid, the balance in such Construction Fund, if any, shall be transferred by the Project Manager in accordance with the mutual written instructions of City and County. 5. ADMINISTRATION AND MANAGEMENT OF THE LEASE 4 766 In connection with the administration and management of the Lease, City and County designates GPEDC as its agent for all purposes. Any rental payments resulting from the Lease, if any, will be collected by GPEDC and held in a separate account, and paid out of the separate account as directed by the joint written instructions of City and County. 6. DURATION This Agreement shall remain in full force and effect for a period beginning on the Effective Date of this Agreement and ending on the expiration or termination of the Lease for any reason. 7. MISCELLANEOUS This Agreement shall be binding upon the parties hereto and upon their respective permitted successors and transferees. No party shall assign this Agreement or any rights or obligations hereunder. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Kentucky. The venue of any legal dispute shall be the McCracken Circuit Court. If one or more provisions of this Agreement, or the applicability of any such provisions for any set of circumstances shall be determined to be invalid or ineffective for any reason, such determination shall not affect the validity and enforceability of the remaining provisions of this Agreement or the applicability of the provisions found to be invalid or ineffective for a specific set of circumstances to other circumstances. This Agreement may be amended or any of its terms modified only by a written document authorized, executed and delivered by each of the parties hereto. This Agreement may be executed in one or more counterparts and when each party hereto has executed at least one counterpart, this Agreement shall become binding on all parties and such counterparts shall be deemed to be one and the same document. Notices made or given by either party in connection with this Agreement must be in writing to be effective. They shall be deemed given if delivered personally (which includes notices given by.messenger) or, if delivered by U.S. mail. 8. EFFECTIVE DATE This Agreement shall be effective on the date when this Agreement is executed by all undersigned parties after the approval by governing body of each. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date first above written. Attest: City Clerk CITY OF PADUCAH, KENTUCKY, Authorized by Action of the City Commission of the City on .2014 Mayor COUNTY OF MCCRACKEN, KENTUCKY, Authorized by Action of the Fiscal Court of the County on , 2014 5 767 Attest: Fiscal Court Clerk Judge/Executive M, The foregoing instrument was prepared by: Lisa H. Emmons Denton & Keuler, LLP Post Office Box 929 Paducah, Kentucky 42002-0929 G.P.E.D.C., INC. By: Title: Dated: 7 00.81 769 COMMONWEALTH OF KENTUCKY OFFICE OF THE ATTORNEY GENERAL 700 CAPITAL AVENUE, SUITE 118 FRANKFORT, KENTUCKY 40601-3449 (502) 696-5300 INTERLOCAL COOPERATION AGREEMENT Renovation of Project Site for Industrial/Distribution Facility Leased To MACCO Organiques Corporation between McCracken County, Kentucky City of Paducah, Kentucky and G.P.E.D.C., INC. APPROVED , 2014 BY THE OFFICE OF THE ATTORNEY GENERAL By: Jack Conway, Attorney General 770 EXHIBIT A Project Site: 5455 Commerce Center Paducah, Kentucky BEING TRACT C, CONSISTING OF 10.2007 ACRES, IN INDUSTRIAL PARK WEST, AS. SHOWN ON THE WAIVER OF SUBDIVISION PLAT AT INDUSTRIAL PARK WEST TO CREATE NEW TRACT F AND REVISE TRACT C OF RECORD IN PLAT SECTION "L," PAGE 1308, IN THE MCCRACKEN COUNTY COURT CLERK'S OFFICE. SUBJECT TO DECLARATION OF PROTECTIVE COVENANTS AND RESTRICTIONS FOR INDUSTRIAL PARK WEST OF RECORD IN DEED BOOK, 1186, PAGE 67, AND RERECORDED IN DEED BOOK 1186, PAGE 643, IN THE AFORESAID CLERK'S OFFICE. BEING THE SAME PROPERTY CONVEYED TO CITY OF PADUCAH, KENTUCKY AND COUNTY OF MCCRACKEN, KENTUCKY BY DEED DATED MARCH , 2014, OF RECORD IN DEED. BOOK , PAGE , IN THE MCCRACKEN COUNTY COURT CLERK'S OFFICE E _- - - -- q-7-,-F-rr, �n m j