HomeMy WebLinkAbout20170702.tiffRESOLUTION
RE: APPROVE AGREEMENT PURSUANT TO SECTION 30-11-123, C.R.S. AND
AUTHORIZE CHAIR TO SIGN - J.M. SMUCKER, LLC
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with an Agreement Pursuant to Section
30-11-123, C.R.S. between the County of Weld, State of Colorado, by and through the Board of
County Commissioners of Weld County, and J.M. Smucker, LLC, with terms and conditions being
as stated in said agreement, and
WHEREAS, after review, the Board deems it advisable to approve said agreement, a copy
of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Agreement Pursuant to Section 30-11-123, C.R.S., between the
County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld
County, and J.M. Smucker, LLC, be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said agreement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 8th day of March, A.D., 2017.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST:
Weld - . my Clerk to the
BY:
County Attorney
Date of signature:
GG FT COL J)
o3lIO(t1
Steve Moreno, Pr"o-Tem
Sean P. Conway
arbara Kirkmey
2017-0702
F 10064
AGREEMENT PURSUANT TO C.R.S. & 30-11-123
THIS AGREEMENT ("Agreement") is made and entered into by and between the County
of Weld, a body corporate and politic of the state of Colorado, by and through the Board of
County Commissioners of the County of Weld, whose address is P.O. Box 758, 1 150 O Street,
Greeley, CO 80632, hereinafter referred to as, "Taxing Authority," and J.M. Smucker LLC, an
Ohio limited liability company, with Colorado address of 545 Highway 119, Longmont, CO
80504 (the "Facility") and referred to hereinafter as "Taxpayer" or the "Company", to be
effective in accordance with Section 11(e) hereof.
WITNESSETH:
WHEREAS, Taxing Authority desires to promote economic development within Weld
County, Colorado, for the purposes of generating employment opportunities for residents of
Weld County, thereby stimulating the economic well-being of Weld County's citizens, and
WHEREAS, C.R.S. § 30-I1-123 provides that the Taxing Authority may negotiate
incentive payments to taxpayers who establish new business facilities in Weld County or who
expand existing business facilities in Weld County, and
WHEREAS, Taxpayer represents that it intends to invest in qualifying personal property
to be located in the Facility, and wishes to receive the incentive payment benefits available
pursuant to C.R.S. § 30-I1-123, and
WHEREAS, Taxing Authority has determined that Taxpayer is currently eligible to
receive the incentive payment benefits available pursuant to C.R.S. § 30-1 1-123, and there are no
other eligibility criteria imposed by the Taxing Authority, and
WHEREAS, the Weld County Technical Job Training Program (the "Program") is an
investment in training Weld County residents who are working in Weld County in an effort to
enhance the Weld County workforce, and
WHEREAS, Taxpayer represents that it intends to invest in the Facility for use as a food
processing facility that will offer long term employment opportunities within and for residents of
Weld County, and
WHEREAS, Weld County has approved a $500,000 grant award to Taxpayer under the
Weld County Technical Job Training Program in order to help pay for a portion of the training
costs for newly hired full-time employees (as further defined herein, "FTE's") who are residents
of Weld County, which grant will assist with training costs necessary for the Facility to become
operational, support the Taxpayer's competitiveness, increase transferable job skills for such
FTE's, enhance worker's resumes and increase long- term employment opportunities for
FTE's, and
2017-0702
{Qz2?t24s_12} Page 1 of 10
WHEREAS, Taxing Authority has determined that the combined payment of the
$500,000 grant award by the Taxing Authority for training and the Taxing Authority's
repayment for fifty -percent (50%) of the amount of personal property taxes paid by the Taxpayer
for personal property per this agreement do not exceed the amount allowable as incentive
payments pursuant to C.R.S. § 30-I 1-123, and
WHEREAS, Taxing Authority has developed training program requirements and
eligibility requirements for the Program, and the Taxpayer is required to enter into an agreement
with Taxing Authority which summarizes the Program grant award parameters applicable to
Taxpayer's award.
NOW, THEREFORE, the parties hereto hereby agree to the following:
1. Recitals; Defined Terms. The foregoing recitals are incorporated into and expressly
made a part of this Agreement. Capitalized terms used in the recitals shall have the
meaning set forth in the recitals. In addition, the following definitions shall apply to
capitalized terms set forth in this Agreement:
a. "Eligible Employees" are employees who meet the criteria set forth in Paragraph 2(a).
b. "Eligible Property" means any item of personal property located at the Facility first
appearing on the personal property declaration schedule submitted by the Taxpayer to the
Weld County Assessor in calendar years 2018-2023 and which otherwise meets the
criteria to qualify for incentive payments under C.R.S. § 30-I1-123, as in effect on the
date of this Agreement.
c. "FTE" or "full-time employees" means individuals who are scheduled to perform
services for Company at the Facility for at least 40 hours per week, including one or more
individuals who together perform services for such time periods through a job -sharing
arrangement.
d. "Person" means an individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint venture, an
unincorporated organization, or any other business entity.
e. "Rebate Term" means a ten (10) year period commencing with the calendar year the
Taxpayer first pays personal property taxes on each item of the Eligible Property to the
Weld County Treasurer and continuing through the tenth (10th) calendar year thereafter.
By way of example, the Rebate Term for an item of Eligible Property reported on a
personal property declaration schedule submitted to the Weld County Assessor during the
calendar year 2018 will be assessed and taxed on January I, 2019, and the tax payment
will be due and payable on January I, 2020. Thus, the Rebate Term for that item of
Eligible Property would be calendar year 2020 through calendar year 2029. Similarly, if
an item of Eligible Property is first reported on a personal property declaration schedule
submitted to the Weld County Assessor during the calendar year 2022, it will be assessed
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and taxed on January I, 2023, with the tax payment due and payable on January 1, 2024,
and the Rebate Term for that item of Eligible Property would be calendar year 2024
through calendar year 2033.
f. "Training Costs" shall include (i) development costs for training materials (including
the Company's internal development costs consisting of out-of-pocket costs for
materials, and internal costs for personnel involved in the production of such materials),
(ii) amounts paid to local community colleges for costs or tuition or services, or
reimbursed to employees in connection with classes attended at local community
colleges, (iii) amounts paid to vendors for services or materials used in training
employees, and (iv) travel costs incurred in connection with or reimbursed to employees
for travel expenses to train on equipment.
g. "Wages" shall include all amounts for labor or service performed by employees,
whether the amount is fixed, by salary or ascertained by the standard of time, task, piece,
commission basis, or other method of calculating the same (and including overtime pay),
all amounts paid for vacation days and holidays, all bonus payments and all commission
payments.
2. Job Training Grant. Taxing Authority hereby grants Taxpayer a job training grant in the
amount of $500,000 (the "Grant"), under the Program, for reimbursement of Training
Costs for Eligible Employees, subject to the following terms and conditions:
a. Eligible Employees. Eligible Employees must be (i) a Weld County resident at the
date of employment and through the period of training, (ii) have not been previously
employed by Company in the last 12 months, (iii) eligible to work in the United States
of America, and (iv) employed by the Company as a permanent, non -seasonal FTE.
b. Company Certification. To receive payment of the Grant, the Company must: (i)
certify that the Facility -wide average hourly Wage is either (A) on schedule to be, by
December 31, 2023, or (B) is then, equal to or greater than $23.55/hour or an annual
salary of $48,976.20, and that the FTE's for whom payment is sought are Eligible
Employees; (ii) provide the documentation described in Paragraph 3 below; and (iii)
submit a request for payment as described in Paragraph 3 below.
3. Payment of Job Training Grant. Each request for payment shall be submitted to the
Program Representative, no more frequently than quarterly, beginning with the quarter
ending December 31, 2017 and ending with the quarter ending December 31, 2023 and
shall include:
a. A list of the Eligible Employees trained during the preceding calendar quarter and
any preceding calendar quarter for which a request has not already been made,
including the reported residence address for such Eligible Employee.
_(02Z7_1 246_712} Page 3 of 10
b. A summary of the type of training such Eligible Employees have received.
c. A dollar value request for reimbursement.
d. Documentation of the Company's total aggregated Training Costs, along with the
calculation of Training Costs for the Eligible Employees listed in the request,
determined by dividing total aggregate Training Costs by total FTE's that attended
training to arrive at a Training Cost per FTE, multiplied by the number of Eligible
Employees.
e. Calculation of the Facility -wide average hourly Wage, which must be equal to or
greater than $23.55/hour or $48,976.20 annual salary no later than December 31,
2023 to qualify for payment of the amount requested and, if such Wage has not yet
been attained, a certification that Company reasonably believes such Wage will be
attained.
f If requested, an explanation of the purpose and utility of the training for which
Training Costs were incurred.
Requests can be submitted through the quarter ending December 31, 2023, subject to
availability of unused funds in the Grant.
4. Program Representative. The designated representative administering the Program on
behalf of Weld County (herein referred to as the "Program Representative") is currently
the Director of Finance and Administration, with an address of PO Box 758, 1150 O
Street, Greeley, Colorado 80631. Such Program Representative may be changed by the
Taxing Authority upon written notice given to Taxpayer, no less than 30 days prior to its
effective date.
5. Rebate of Personal Property Tax. Subject to annual appropriation by Taxing Authority,
fifty -percent (50%) of the amount of personal property taxes paid by the Taxpayer during
the Rebate Term attributable to Eligible Property ("Tax Incentive Payments") shall be
paid to the Taxpayer by the Taxing Authority. Taxpayer shall submit to the Weld County
Assessor an affidavit certifying the aggregate cost and year of acquisition of Taxpayer's
personal property that, to Taxpayer's best knowledge, information and belief, is Eligible
Property, during each Rebate Term. The amounts so certified shall be subject to review
by the Weld County Assessor. Any Tax Incentive Payments made pursuant to this
Agreement shall be rebates of taxes assessed and paid and shall not be deemed to reduce
the assessed value of, or the levy of taxes upon, any property within Weld County for the
purposes of Article XIV, Section 14-7 of the Home Rule Charter of Weld County.
6. Conditions to Tax Incentive Payments. Tax Incentive Payments shall be made by Taxing
Authority only upon appropriation, and only if:
_[02271246_12) Page 4 of 10
a) All taxes and assessments levied and assessed on Taxpayer by Taxing Authority for
the Facility are current, and
b) Taxpayer remains eligible to receive the Tax Incentive Payments under C.R.S. § 30-
11-123, as in effect on the date of this Agreement.
7. Payment of Tax Incentive Payments. Taxpayer shall request a Tax Incentive Payment by
submitting a written request for such payment, substantially in the form of Exhibit A, to
Weld County Director of Finance and Administration, which request shall (i) be made
after payment of all personal property taxes due and payable by Taxpayer for that
calendar year but no later than October V of each year, (ii) include a copy of the current
Property Tax Notice with verification that all taxes are paid, (iii) certify the cost of the
Eligible Property by providing an itemized list that includes, for each piece of Eligible
Property, a brief description of such equipment, the year acquired, the original cost, and
confirmation that the equipment is being utilized at the Facility, and (iv) identify the
current number of FTE's employed by the Taxpayer along with the percentage of whom
claim residence in Weld County. The Tax Incentive Payment shall be paid to Taxpayer
within 90 days of delivery of such completed request for payment. Requests for a Tax
Incentive Payment shall be submitted to the Weld County Director of Finance and
Administration by Taxpayer on or before October 1st of each year or Taxpayer waives
the right to receive payment for that year.
8. Restriction on Payments. If a court of competent jurisdiction declares any portion of this
Agreement, or declares C.R.S. § 30-11-123 (as may be amended from time to time), to be
invalid or unconstitutional as it applies to this Agreement, then Tax Incentive Payments
shall be reduced to the extent necessary to render this Agreement valid and constitutional.
9. Limitations. Taxing Authority has determined that all Tax Incentive Payments agreed to
be made under this Agreement and the Grant are currently legal under the laws of the
State of Colorado and all laws, rules, resolutions and policies of Taxing Authority, and
will not cause a reduction in the annual assessment and levy of ad valorem taxes pursuant
to either Article XIV, Section 14-7 of the Home Rule Charter of Weld County or C.R.S. §
29-1-301. However, should a final, non -appealable ruling by a court of law or other
adjudicative body (excluding Taxing Authority) determine that any payments made by
Taxing Authority hereunder are illegal or must be applied to reduce the total ad valorem
tax levies in Weld County, then Taxpayer shall repay such amounts to Weld County to
the extent (and only to the extent) necessary to comply with law or to avoid a reduction of
the Weld County ad valorem tax levies.
10. Appropriation/TABOR. Nothing in this Agreement shall be deemed a pledge of the
Taxing Authority's credit or a payment guarantee by the Taxing Authority. All financial
obligations of the Taxing Authority under this Agreement are contingent upon
appropriation, budgeting, and availability of specific funds to discharge such obligations.
Any financial obligation of the Taxing Authority under this Agreement which may
mature in a future fiscal year is subject to the availability of revenues and
appropriation by the Taxing Authority of sufficient funds to meet such obligation.
Consequently, this Agreement does not create a multiple fiscal year obligation of the
.10227124@_12} Page 5 of 10
Taxing Authority under Article X, Section 20 (4) of the Colorado Constitution.
Nevertheless, the Taxing Authority hereby represents to Taxpayer that it has appropriated
funds sufficient to discharge its obligations hereunder for the year 2017, and that it will
take reasonable steps to appropriate all other funds sufficient to discharge its obligations
hereunder in a timely manner to meet its financial obligations hereunder.
II. Miscellaneous.
a. This Agreement is not assignable by either party, except with the express prior written
consent of the parties, provided however that Taxpayer may, without consent, assign its
rights and obligations under this Agreement to any Affiliate. For purposes of this
provision, an "Affiliate" of Taxpayer means any other Person which, directly or
indirectly, through one or more intermediaries, controls, is controlled by, or is under
common control with, Taxpayer, and "control" means possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting capital stock, by contract, or otherwise.
Taxpayer shall promptly notify Taxing Authority of any such assignment to any Affiliate
of Taxpayer.
b. Acceptance of any Tax Incentive Payment by Taxpayer constitutes agreement by both
parties to fund the Tax Incentive Payment for the tax year involved.
c. Taxpayer agrees that it shall use reasonable efforts to ensure that a minimum of fifty
percent (50%) of its workforce employed at the facility are Weld County residents during
the term of this Agreement.
d. Each of the parties will execute and deliver such other instruments and documents and
will take all such other actions as the other party may reasonably request and as may
reasonably be required in order to effectuate the purpose of this Agreement and to carry
out its terms.
e. This Agreement may be executed in one or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
instrument. "I his Agreement shall be effective on the last date on which this Agreement
is executed by both the Taxing Authority and Taxpayer.
f. This Agreement constitutes the entire agreement between the parties and supersedes
and replaces all prior and contemporaneous agreements and representations, both written
and oral, between the parties with respect to the subject matter of this Agreement.
g. No variation or modification of this Agreement, nor any waiver of the Agreement's
provisions or conditions, shall be binding unless made in writing and signed by duly
authorized officers of the County and Taxpayer.
h. This Agreement shall be binding upon, and inure to the benefit of, the parties and their
respective successors and permitted assigns.
_�o_zzTlza6_12) Page 6 of 10
i. This Agreement shall be governed by and construed according to the laws of the state
of Colorado.
j. Captions and headings contained herein are for convenience of reference only and shall
not be used in the interpretation of this Agreement.
12. Notices. All notices required or permitted under this Agreement shall be given in writing
and shall be effective when delivered in the case of hand delivery or delivery by a
nationally recognized overnight delivery service, when transmitted, in the case of
electronic transmission receipt of which is acknowledged and confirmed, or five days
after mailing, when mailed, provided that mailed notices shall be sent by certified mail,
return receipt requested. Notices shall be sent to the following addressees at the
following addresses or email addresses or to such other addressees or email addresses as
a party may designate from time to time by notice given pursuant to this paragraph:
If to the County:
With a Copy to:
If to Taxpayer:
Board of County Commissioners
P.O. Box 758
Greeley, CO 80632
Weld County Attorney
1150 O Street
Greeley, CO 80631
J.M. Smucker LLC
Attn: Legal Department
One Strawberry Lane
Orville, OH 44667
13. No Third Party Beneficiaries. It is expressly understood and agreed that the enforcement
of the terms and conditions of this Agreement, and all rights of action relating to such
enforcement, shall be strictly reserved to the undersigned parties and nothing in this
Agreement shall give or allow any claim or right of action whatsoever by any other
person not included in this Agreement. It is the express intention of the undersigned
parties that any entity other than the undersigned parties receiving services or benefits
under this Agreement shall be an incidental beneficiary only.
[BALANCE OF PAGE INTENTIONALLY BLANK; SIGNATURE PAGES FOLLOW.]
.L0_2271246_l2} Page 7 of 10
P1
The above and foregoing Agreement was hereby accepted and approved on the �day
.D., 2017.
ATTEST: W S JCS ;04.
Weld Co . n % Clerk to the Bo. rd
BY:
Deputy Cl -,� to he B
APPROVED AS TO FUND
aitut
Controller
APPROj(.�D AS• TO FORM:
County Attorney
BOARD OF COUNTY COMMISSIONERS
WELD CO �, TY, COLORADO
Julie A. ozad, Chair
0 8 2Q17
VED AS TO SUBSTANCE:
[BALANCE OF PAGE INTENTIONALLY BLANK; TAXPAYER SIGNATURE PAGE TO
FOLLOW.]
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O10 /7-070
rf1
Accepted and agreed on the day ofira-4•f '11, 2017.
TAXPAYER: J.M Smucker LLC, an Ohio
limited liability company
By: _
Name: / Mark R. Belgya
Its: Vice President and Chief Financial Officer
02271246 -12} Page 9 of 10
EXHIBIT A
SAMPLE PERSONAL PROPERTY TAX REFUND REQUEST LETTER
[Date]
Weld County Commissioners
Attn:
Director of Finance & Administration
P.O. Box 758
Greeley, CO 80632
Re: Weld County Personal Property Tax Refund Incentive Agreement (tax notice account #
Dear
Per agreement number [insert County incentive agreement number], enclosed please find our
affidavit certifying the aggregate cost and year of acquisition of eligible personal property for our
facility located at 545 Highway 119, Longmont, CO 80504 (the "Facility") and appearing on the
personal property declaration schedule submitted to the Weld County Assessor. This personal
property first appeared on a schedule submitted to the Weld County Assessor in calendar years
2018-2023 and the equipment is currently in use at this facility.
Enclosed you will also find verification that all current personal property tax/assessments have
been paid in full. [J.M. Smucker LLC] currently employs full-time employees at the
Facility and (% ) of these employees have reported residency in Weld County.
Per the agreement, 50% of the personal property taxes paid on this property shall be reimbursed
to J.M. Smucker LLC during the Rebate Term (as defined in the agreement). Therefore, we
anticipate a refund of approximately $ per the attached [insert year] personal
property tax notice for taxes due in [insert year].
Should you have any questions or need additional information please contact me at (phone
number). Thank you for your assistance.
Sincerely,
Company Official Name & Title
Attachments
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