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HomeMy WebLinkAbout02-09 OrdinanceRECORD OF ORDINANCES Or-diiimice No 02-09 Passed 20 AN ORDINANCE AUTHORIZING THE PROVISION OF CERTAIN INCENTIVES FOR PURPOSES OF RETAINING AND EXPANDING BATTELLE AND ITS OPERATIONS AND WORKFORCE WITHIN THE CITY OF DUBLIN AND AUTHORIZING THE EXECUTION OF AN ECONOMIC DEVELOPMENT AGREEMENT. WHEREAS, consistent with its Economic Development Strategy (the "Str°ategy") approved by Dublin City Council Resolution No. 07-94 adopted on June 20, 1994, and the updated strategy approved by Dublin City Council Resolution No. 30-04 adopted on July 6, 2004, the City desires to encourage commercial office and retail development and provide for the creation of employment opportunities within the City; and WHEREAS, Battelle Memorial Institute is desirous of retaining and expanding its operations and workforce within the City in consideration for the provision by the City of economic development incentives; and WHEREAS, this Council has determined to offer economic development incentives, the terms of which are set forth in a substantially final form of Economic Development Agreement presently on file in the office of the Clerk of Council, to induce Battelle Memorial Institute to establish its operations and workforce within the City, to retain jobs and employment opportunities and to improve the economic welfare of the people of the State of Ohio and the City, all as authorized in Article VIII, Section 13 of the Ohio Constitution; and WHEREAS, this Council finds that it is in the best interest of the City to provide those economic development incentives to induce Battelle Memorial Institute to retain its operations and workforce within the City and to provide for the execution and delivery of that Economic Development Agreement with Battelle Memorial Institute; NOW, THEREFORE, BE IT ORDAINED b the Council of the City of Dublin, Franklin, Union and Delaware Counties, Ohio, ~ of the elected members concurring that: Section 1. The Economic Development Agreement by and between the City and Battelle Memorial Institute, in the form presently on file with the Clerk of Council, providing for, among other things, the provision of incentives to Battelle Memorial Institute in consideration for Battelle Memorial Institute's agreement to retain its operations and workforce within the City, is hereby approved and authorized with changes therein not inconsistent with this Ordinance and not substantially adverse to this City and which shall be approved by the City Manager and Director of Finance. The City Manager and Director of Finance, for and in the name of this City, are hereby authorized to execute that Economic Development Agreement, provided further that the approval of changes thereto by those officials, and their character as not being substantially adverse to the City, shall be evidenced conclusively by their execution thereof. This Council further authorizes the City Manager and the Director of Finance, for and in the name of the City, to execute any amendments to the Economic Development Agreement, which amendments are not inconsistent with this Ordinance and not substantially adverse to this City. Section 2. This Council further hereby authorizes and directs the City Manager, the Clerk of Council, the Director of Law, the Director of Finance, or other appropriate officers of the City to prepare and sign all agreements and instruments and to take any other actions as maybe appropriate to implement this Ordinance. Section 3. This Council finds and determines that all formal actions of this Council concerning and relating to the passage of this Ordinance were taken in an open meeting RECORD OF ORDINANCES ton Leal Blank. Inc. Form \n. _004; 02-09 Page 2 Ordina~u•e Nn. Passed 20 of this Council and that all deliberations of this Council that resulted in those formal actions were in meetings open to the public in compliance with the law. Section 4. This Ordinance shall be in full force and effect on the earliest date permitted b~ law. .. A ~ ~~ ~ // ll ~ Mayor -Presiding Officer Attest Clerk of Council Passed: , 2009 Effective: ,~~ Y~~ ~ , 2009 Office of the City Manager 5200 Emerald Parkway • Dublin, OH 43016 Phone: 614-410-4400 • Fax: 614-410-4490 C1TY OF DUEL[N TO: Members of the Dublin City Council FROM: Marsha I. Grigsby, Interim City Manager /~m.~C/mv DATE: January 15, 2009 Memo INITIATED BY: Dana L. McDaniel, Deputy City Manager/Director of Economic Development RE: Ordinance 02-09, Battelle Memorial Institute Economic Development Agreement Summary: Staff has been in discussions with Battelle Memorial Institute (``Battelle") for several weeks regarding the retention and expansion of its operations and workforce at its current leased facility at 5160 Blazer Parkway in the City of Dublin. Battelle has had a presence at this facility since 2005. The City and Battelle previously executed an Economic Development Agreement to attract its operations and workforce to this location. This Agreement provided Battelle a withholding incentive of 25% through 2009 and access to the City's optical fiber. Battelle desires to have the facility owner expand the existing facility by 40,000 square feet, increase its employees from 67 to 105 by 2012 and extend its lease for ten years. This investment in Dublin is intended to increase light manufacturing capacity, enabling the organization to increase production of key electronic components used to improve energy efficiency, to support the medical community, and to be used by United States military forces. Ordinance 02-09 authorizes an Economic Development Agreement between the City and Battelle that includes: Retention and Expansion Withholding Incentive. The City offers annual incentive payments to be based upon a percentage (the Incentive Factor) of actual payroll withholdings (net of refunds). The City offers an Incentive Factor of 25% for the year 2009 and an Incentive Factor of 15% for six (6) years beginning in 2010 and ending in 2015 (with payments provided in years 2010 through 2016). The minimum aggregate payment to Battelle is estimated to be $153,410, or 16% of the estimated total of $950,000 in withholdings to be realized by the City over the same period. 2. Fiber Connectivity. Battelle will have the ongoing use of the fiber connectivity between the Dublin facility and its Columbus facility as provided in the existing Economic Development Agreement between the City of Dublin and Battelle. Battelle and the building owner are working with staff regarding the facility expansion. The site is currently within a URL zoning. At this time it appears that the proposed designs will meet all requirements and not require a re-zoning. Enclosure 3 provides a description of the proposed facility expansion. Recommendation: The City of Dublin is proud to be home to this Battelle operation and its workforce. We are pleased that Battelle desires to retain and grow its operations and workforce in the City of Dublin. Staff recommends City Council pass Ordinance No.02-09. Passing this Ordinance will support Council's goal relative to retaining and expanding Dublin-based businesses and high-tech jobs. Please contact Dana McDaniel or me with any questions you may have. Road 30' ~h f-N+H-~N-O-I-N-f~-f-H-I~~-~-I~-H-N-(}-. N-~-----N-N-O NEW ADDITION 40000 SF NEW ~ EXISTING EXISTING BATTELLE OTHER TEI 58400 SF LEASED 25700 SF LEASED Blazer Park`NaY o' ,o' 100' - -._ ~-~ SITE PLAN ECONOMIC DEVELOPMENT AGREEMENT THI$ ECONOMIC DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into this day of , 2009, by and between the CITY of DUBLIN, Otito (the "City"), a municipal corporation duly organized and validly existing under the Constitution and the laws of the State of Ohio (the "State") and its Charter, and Battelle Memorial Institute (The "Company" and collectively with the City, the "Parties"), an Ohio corporation with its main office currently located at 5160 Blazer Parkway, Dublin, Ohio 43017, under the circumstances summarized in the following recitals. RECITALS: WHEREAS, consistent with its Economic Development Strategy (the "Strategy") approved by Dublin City Council Resolution No. 07-94 adopted on June 20, 1994, and the updated Strategy approved by Dublin City Council Resolution No. 30-04 adopted on July 6, 2004, the City desires to encourage commercial office and retail development and provide for the retention and creation of employment opportunities within the City; and WHEREAS, based on the results of the Company's recent comprehensive examination of workforce needs, and induced by and in reliance on the economic development incentive provided in this Agreement, the Company desires to expand its existing facility within the City, continue to lease the facility for an additional ten (10) years, and expand its operations and workforce within the City; and WHEREAS, pursuant to Ordinance No. 02-09 passed on 2009 (the "Ordinance"), the City has determined to offer the economic development incentives described herein to induce the Company to expand and continue to lease its existing facility within the City and expand its operations and workforce within the City to improve the economic welfare of the people of the State of Ohio and the City, all as authorized in Article VIII, Section 13 of the Ohio Constitution; and WHEREAS, the City and the Company have determined to enter into this Agreement to provide these incentives in order to induce the Company to expand and continue to lease its existing facility within the City and expand its operations and workforce within the City; Now THEREFORE, the City and the Company covenant, agree and obligate themselves as follows: Section 1. Compan~greement to Expand and Continue to Lease Its Existing Facility and Expand Its Operations and Workforce Within the City. In consideration for the economic development incentives to be provided by the City herein, the Company agrees that it will expand its existing facility within the City by approximately 40,000 square feet, continue to lease the facility for an additional ten (10) years, and expand its operations and workforce within the City pursuant to this Agreement. The Company expects to expand the number of its employees from sixty seven (67) to one hundred five (105) over the years 2009 through 2015. The average annual wage of these employees for this period is estimated to be Sixty-Nine Thousand One Hundred Nineteen and 00/100 Dollars ($69,119.00), with total estimated payroll withholdings of approximately Nine Hundred Fifty-Four Thousand Five Hundred Sixty-Two and 00/100 Dollars ($954,562.00) over the term of this Agreement. Section 2. City AI;<•eement to Provide Incentives. (a) General. In consideration for the Company's a~-eement to expand and continue to Lease its existing facility within the City and expand its operations and workforce within the City, the City agrees to provide economic development incentives to the Company in accordance with this Section. (b) Workforce Retentio»/Expansion Incentive. (i) Calculation of Actual WithholdinQS. On or before March 15 of each of the years 2010 through 2016, the City shall calculate the actual payroll withholding taxes collected during the preceding calendar year by the City from all Employees. For purposes of this Section 2, "Employees" shall include only those individuals employed by the Company and working within the City. (ii) Information Relating to Employees. The Company agrees that, in accordance with the Dublin City Code, the annual payroll reconciliation and related W-2 forms relating to its Employees will be provided to the City prior to February 28 of each calendar year. (iii) Incentive Pavments to the Company. If the actual payroll withholding taxes collected during the then preceding calendar year by the City from all Employees, net of refunds ("Actual Withholdings"), meet or exceed the Target Withholdings (as defined in subsection 2(b)(iv)) for that preceding calendar year, the City shall, on or before April 15 of the then current calendar year, pay to the Company, solely from nontax revenues (as defined in subsection 2(d)), an amount equal to the product of (A) an amount equal to the Actual Withholdings, multiplied by (B)(1) for the year 2009, twenty-five percent (25%) and (2) for each of the years 2010 through 2015, fifteen percent (15%) (with each such product being referred to as the "Annual Incentive Payment"). (iv) Target Withholdings. The Target Withholdings and Annual Cap for each of the calendar years 2009 through 2015 shall be: Calendar Year Target Withholdings 2009 $102,259 2010 $115,206 2011 $128,989 2012 $146,443 -2- 2013 $150,104 2014 $153,857 2015 $157,703 (v) Forfeiture of Right to Receive Incentive Parent. The Company agrees and acknowledges that Annual Incentive Payments provided for in subsection 2(b) are being made by the City to the Company in consideration for the Company's agreement to lease a facility within the City and expand its operations and workforce within the City. The Company further agrees that if the Target Withholdings requirement is not met for any given year as set forth in subsection 2(b)(iv), the City shall not be obligated to make any Annual Incentive Payment to the Company for the calendar year in respect of which the Target Withholdings requirement was not satisfied. Failure to meet the Target Withholdings requirement in respect of any one calendar year does not prohibit the Company from receiving an Annual Incentive Payment for any subsequent calendar year in respect of which the Target Withholdings requirement is satisfied. (c) Method of Payment. The payments to be paid to the Company as provided in this Section 2 shall be made by the City to the Company by electronic funds transfer or by such other manner as is mutually agreed to by the City and the Company. (d) City's Obligation to Make Payments Not Debt; Payments Limited to Non-Tax Revenues. Notwithstanding anything to the contrary herein, the obligations of the City pursuant to this Agreement shall not be a general obligation debt or bonded indebtedness, or a pledge of the general credit or taxes levied by the City, and the Company shall have no right to have excises or taxes levied by the City, the State or any other political subdivision of the State for the performance of any obligations of the City herein. Consistent with Section 13 of Article VIII, Ohio Constitution, any payments or advances required to be made by the City pursuant to this Section 2 shall be payable solely from the City's non-tax revenues. Further, since Ohio law limits the City to appropriating monies for such expenditures only on an annual basis, the obligation of the City to make payments pursuant to this Section 2 shall be subject to annual appropriations by the City Council and certification by the Director of Finance of the City as to the availability of such non-tax revenues. For purpose of this Agreement, "nontax revenues" shall mean, all rnoneys of the City which are not moneys raised by taxation, to the extent available for such purposes, including, but not limited to the following: (i) grants from the United States of America and the State; (ii) payments in lieu of taxes now or hereafter authorized to be used for the purposes by State statute; (iii) fines and forfeitures which are deposited in the City's General Fund; (iv) fees deposited in the City's General Fund from properly imposed licenses and permits; (v) investment earnings on the City's General Fund and which are credited to the City's General Fund; (vi) investrent earnings of other funds of the City that are credited to the City's General Fund; (vii) proceeds from the sale of assets which are deposited in the City's General Fund; and (viii) rental income which is deposited in the City's General Fund; and (ix) gifts and donations. -3- (e) Applicable Cit~yroll Tax Rate. For purposes of calculating the Actual Withholdings in each calendar year under this Section 2, the City's payroll tax rate shall be assumed to be two percent (2%). Section 3. City's Other Consideration. In further consideration for the Company's agreement to expand and continue to lease its existing facility within the City and expand its operations and workforce within the City, the City agrees that: (a) The Company shall have the ongoing use of the fiber connectivity between its facility within the City and its Columbus facility as provided in the Economic Development Agreement dated February 9, 2006 by and between the City and the Company. (b) The City will continue to work with American Electric Power to ensure reliable electricity at the Company's facility within the City. Section 4. Miscellaneous. (a) Assignment. This Agreement may not be assigned without the prior written consent of all non-assigning Parties. (b) Binding Effect. The provisions of this Agreement shall be binding upon the successors or assigns of the Parties. (c) Captions. The captions and headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or• sections of this Agreement. (d) Day for Performance. Wherever herein there is a day or time period established for performance and such day or the expiration of such time period is a Saturday, Sunday or legal holiday, then such time for performance shall be automatically extended to the next business day. (e) Entire Aea'eement. This Agreement embodies the entire agreement and understanding of the Parties relating to the subject matter herein and therein and may not be amended, waived or discharged except in an instrument in writing executed by the Parties. (f) Events of Default and Remedies. Except as otherwise provided in this Agreement, in the event of any default in or breach of this Agreement, or any of its terms or conditions, by any Party hereto, such defaulting Party shall, upon written notice from any non-defaulting Party, proceed immediately to cure or remedy such default or breach, and, in any event, within thirty (30) days after receipt of such notice. In the event such default or breach is of such nature that it cannot be cured or remedied within said thirty (30) day period, then in such event the defaulting Party shall upon written notice from any non-defaulting Party commence its actions to cure or remedy said breach within said thirty (30) day period, and proceed diligently thereafter to cure or remedy said breach. In case such action is not taken or not diligently pursued, or the default or breach shall not be cured or remedied within a reasonable time, the aggrieved non-defaulting Party may institute -4- such proceedings as maybe necessary or desirable in its opinion to cure and remedy such default or breach, including, but not limited to, proceedings to compel specific performance by the defaulting Party. (g) Executed Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to constitute an original, but all of which together shall constitute but one and the same instrument. It shall not be necessary in proving this Agreement to produce or account for more than one of those counterparts. (h) Extent of Covenants; No Personal Liability. All covenants, obligations and agreements of the Parties contained in this Agreement shall be effective to the extent authorized and permitted by applicable law. No such covenant, obligation or ageement shall be deemed to be a covenant, obligation or agreement of any present or future member, officer, agent or employee of the City or the Company other than in his or her official capacity, and neither the members of the legislative body of the City nor any official executing this Agreement shall be liable personally under this Agreement or be subject to any personal liability or accountability by reason of the execution thereof or by reason of the covenants, obligations or agreements of the City and the Company contained in this Agreement. (i) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio or applicable federal law. All claims, counterclaims, disputes and other matters in question between the City, its agents and employees, and the Company, its employees and agents, arising out of or relating to this Agreement or its breach will be decided in a court of competent jurisdiction within Franklin County, Ohio. (j) Leal Authority. The Parties respectively represent and covenant that each is legally empowered to execute, deliver and perform this Agreement and to enter into and carry out the transactions contemplated by this Agreement. The Parties further respectively represent and covenant that this Agreement has, by proper action, been duly authorized, executed and delivered by the Parties and all steps necessary to be taken by the Parties have been taken to constitute this Agreement, and the covenants and agreements of the Parties contemplated herein, as a valid and binding obligation of the Parties, enforceable in accordance with its terms. (k) Limit on Liability. Notwithstanding any clause or provision of this Agreement to the contrary, in no event shall City or the Company be liable to each other for punitive, special, consequential, or indirect damages of any type and regardless of whether such damages are claimed under contract, tort (including negligence and strict liability) or any other theory of law. (1) Notices. Except as otherwise specifically set forth in this Agreement, all notices, demands, requests, consents or approvals given, required or permitted to be given hereunder shall be in writing and shall be deemed sufficiently given if actually received or ifhand-delivered or sent by recognized, overnight delivery service or by certified mail, postage prepaid and return receipt requested, addressed to the other Party at the address set forth in this Agreement or any addendum to or counterpart of this Agreement, or to such other address as the recipient shall have previously notified ,the sender of in writing, and shall be deemed received upon actual receipt, unless sent by -5- certified mail, in which event such notice shall be deemed to have been received when the return receipt is signed or refused. For purposes of this Agreement, notices shall be addressed to: (i) the City at: City of Dublin, Ohio 5800 Shier Rings Road Dublin, Ohio 43016-7295 Attention: Economic Development Director (ii) the Company at: Battelle Memorial Institute 505 King Avenue Columbus, Ohio 43201 Attention: Brian Ogle With copy to: Legal Department The Parties, by notice given hereunder, may designate any further or different addresses to which subsequent notices; certificates, requests or other communications shall be sent. (m) Recitals. The Parties acknowledge acid agree that the facts acid circumstances as described in the Recitals hereto are an integral part of this Agreement and as such are incorporated herein by reference. (n) Severability. If any provision of this Agreement, or any covenant, obligation or agreement contained herein is determined by a court to be invalid or unenforceable, that determination shall not affect any other provision, covenant, obligation or agreement, each of which shall be construed and enforced as if the invalid or unenforceable portion were not contained herein. That invalidity or unenforceability shall not affect any valid and enforceable application thereof, and each such provision, covenant, obligation or agreement shall be deemed to be effective, operative, made, entered into or taken in the manner and to the full extent permitted by law. (o) Survival of Representations and Wan~anties. All representations and warranties of the Parties in this Agreement shall survive the execution and delivery of this Agreement. (remainder of page intentionally left blank-signature page follows) -6- IN WITNESS WHEREOF, the City and the Company have caused this Agreement to be executed in their respective names by their duly autholiced representatives, all as of the date first written above. CITY OF DUBLIN, OHIO By: Printed: Marsha I. Grigsby Title: Interim City Manaeer Approved as to Form: Printed: Stephen J. Smith Title: Director of Law BATTELLE MEMORIAL INSTITUTE Printed: To Be Determined -7- FISCAL OFFICER'S CERTIFICATF, The undersigned, Director of Finance of the City under the foregoing Agreement, certifies hereby that the moneys required to meet the obligations of the City under the foregoing Agreement have been appropriated lawfully for that p~upose, and are in the Treasury of the City or iu the process of collection to the credit of an appropriate fund, free from auy previous eueumbrauces. This Certificate is given iu compliance with Sections 5705.41 and 5705.44, Ohio Revised Code. Dated: , 2009 Marsha I. Grigsby Interim City Manager/Director of li finance City of Dublin, Ohio -~-