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HomeMy WebLinkAboutOrdinance 117-14RECORD OF ORDINANCES Dayton Leg Blank Inc. Form No. 30043 Ordinance No. 117 -14 Passed 20 AN ORDINANCE AUTHORIZING THE PROVISION OF CERTAIN INCENTIVES TO EXACT HOLDING NORTH AMERICA, INC. TO INDUCE IT TO LOCATE AN OFFICE AND ASSOCIATED OPERATIONS AND WORKFORCE WITHIN THE CITY; AND AUTHORIZING THE EXECUTION OF AN ECONOMIC DEVELOPMENT AGREEMENT. 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 development and create and preserve jobs and employment opportunities within the City; and WHEREAS, Exact Holding North America, Inc. (the "Company) recently performed a comprehensive examination of its workforce needs, and based on the results of this examination, and induced by and in reliance on the economic development incentives provided in the proposed Economic Development Agreement (as described below), the Company is desirous of leasing a facility within the City to locate an office and associated operations and workforce within the City in order to achieve the payroll withholding targets set forth in the Economic Development Agreement; and WHEREAS, this Council has determined that it is necessary and appropriate and in the best interests of the City to provide for certain economic development incentives to the Company, as described in the proposed Economic Development Agreement; and WHEREAS, this Council has determined to offer the 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 the Company to lease a facility and locate an office and associated operations and workforce, all within the City, which will result in the creation of new jobs and employment opportunities, thereby improving 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; NOW,RE, BE IT ORDAINED by the Council of the City of Dublin, State of Ohio, of the elected members concurring, that: Section 1 . The Economic Development Agreement by and between the City and the Company, in the form presently on file with the Clerk of Council, providing for, among other things, the provision of certain economic development incentives in consideration for the Company's agreement to lease a facility within the City for the location of an office and associated operations and workforce within the City, which will result in the creation of new jobs and employment opportunities, 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. The City Manager, for and in the name of this City, is hereby authorized to execute that Economic Development Agreement, provided further that the approval of changes thereto by that official, and their character as not being substantially adverse to the City, shall be evidenced conclusively by the execution thereof. This Council further authorizes the City Manager, 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 Director of Law, the Director of Finance, the Clerk of Council, or other appropriate officers of the City to prepare and sign all agreements and instruments and to take any other actions as may be appropriate to implement this Ordinance. Section 3 . This Council finds and determines that all formal actions of this Council and any of its committees concerning and relating to the passage of this Ordinance were RECORD OF ORDINANCES ton Legal Blank, Inc. 117 -14 Ordinance No. Form N 0.30043 Page 2 of 2 Passed . 20 taken in open meetings of this Council or committees, and that all deliberations of this Council and any of its committees that resulted in those formal actions were in meetings open to the public, all in compliance with the law including Section 121.22 of the Revised Code. Section 4 . This Ordinance shall be in full force and effect on the earliest date permitted by law. Signed: s 1 yor - Presi ng Officer Attest: Clerk of Council Passed: 2014 Effective: Gt 2014 I cityof Dublin Office of the City Manager 5200 Emerald Parkway • Dublin, OH 43017 -1090 Phone: 614- 410 -4400 • Fax: 614 - 410 -4490 To: Dublin City Council From: Marsha I. Grigsby, City Manager_ Date: November 13, 2014 Initiated By: Michael Clarey, Economic Development Administrator Memo Re: Ordinance 117 -14 - Economic Development Agreement with Exact Holding North America, Inc. Background Staff has been in discussions with Exact Holding North America, Inc. (Exact Software) regarding locating their U.S. headquarters in Dublin. The company would locate 100 employees in Dublin in 2015, and grow to 115 employees by 2018. Exact Software is a software development and technology consulting firm based in the Netherlands. The company has domestic operations in California, Georgia, Illinois, Minnesota, New Jersey and Ohio. Additionally, Exact Software has international locations in Belgium, China, Germany, Netherlands and Saudi Arabia. The company has been conducting an extensive real estate search for an expanded U.S. headquarters. The Economic Development Agreement proposed by the City to the company includes a one -time $10,000 Location Grant and a four -year, 10% Performance Incentive on withholdings collected (2015- 2018), which is capped at $74,000 for the term of the agreement. In addition to meeting target withholding requirements, the incentive is contingent upon the execution of a seven -year lease of a building located within the City of Dublin. Based on the company's payroll projections, it is estimated that the City will net approximately $1,208,400 in income tax withholding revenue over the seven -year term of this project. Recommendation Staff recommends Council passage of Ordinance 117 -14 at the second reading /public hearing on December 8, 2014. Please contact Michael Clarey at 410.4630 with any questions. ECONOMIC DEVELOPMENT AGREEMENT THIS ECONOMIC DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into this day of ' 2014, by and between the CITY OF DUBLIN, OHIO (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 EXACT HOLDING NORTH AMERICA, INC., a Delaware corporation (the "Company" and together with the City, the "Parties "), 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 development and create and preserve jobs and 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 incentives provided in this Agreement, the Company desires to locate an office and associated operations and workforce within the City; and WHEREAS, pursuant to Ordinance No. 117 -14 passed on 2014 (the "Ordinance "), the City has determined to offer the economic development incentives described herein to induce the Company to lease a facility within the City for the location of an office and associated operations and workforce within the City, which will result in the creation of new jobs and employment opportunities 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 lease a facility and locate its operations and workforce, all within the City; Now THEREFORE, the City and the Company covenant, agree and obligate themselves as follows: Section 1. Company's Agreement to Lease a Facility and Locate 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 lease a facility within the City for the location of an office and associated operations and workforce within the City, all consistent with the terms of this Agreement. The Company expects to create one hundred fifteen (115) new employee positions within the City by December 31, 2018. The average annual wage of these new employees is estimated to be Eighty -Two Thousand Six Hundred Nine and 00 /100 Dollars ($82,609.00), with total estimated payroll withholdings of approximately Seven Hundred Twelve Thousand and 00 /100 Dollars ($712,000.00) over the term of this Agreement. The Company agrees that the City's obligations to remit payments pursuant to Section 2 of this Agreement shall be contingent upon (a) the Company SPB #925149v1: 11 -03 -1014 delivering to the City a fully executed copy of an agreement evidencing the Company's lease of a facility within the City for a period of at least seven (7) years (from , 201_ to , 202 (the "Initial Lease Agreement"), (b) the Company having received an occupancy permit for the leased premises as described in the Initial Lease Agreement (the "Certificate of Occupancy "), the delivery of which, the City agrees to not unreasonably withhold, condition or delay and (c) such other conditions as are set forth in Section 2. Section 2. City Agreement to Provide Incentives (a) General In consideration for the Company's agreement to execute the Initial Lease Agreement for the location of an office and associated operations and workforce within the City, the City agrees to provide economic development incentives to the Company in accordance with this Section. (b) Location Incentive (i) Incentive Payment to the Company The Company agrees to execute the Initial Lease Agreement for the location of an office and associated operations and workforce within the City. In consideration of the Company's agreement to execute the Initial Lease Agreement and to locate that office and create new jobs and employment opportunities within the City, the City agrees to provide to the Company a location incentive (the "Location Incentive ") in the amount of Ten Thousand and 00 /100 Dollars ($10,000.00), payable to the Company within thirty (30) days following the occurrence (to the City's reasonable satisfaction) of (A) the Company's execution of the Initial Lease Agreement and provision to the City of documentation in support thereof and (B) the issuance of the Certificate of Occupancy. (ii) Forfeiture of Right to Receive Incentive Payments The Company agrees and acknowledges that the Location Incentive provided for in this subsection 2(b) is being made by the City to the Company in consideration for the Company's agreement to execute the Initial Lease Agreement for the location of an office and associated operations and workforce within the City and to create new jobs and employment opportunities, all within the City. The Company further agrees that if the requirements of subsection 2(b)(i) are not satisfied, the City shall not be obligated to remit the Location Incentive to the Company as required by this subsection 2(b). (c) Workforce Creation Incentive (i) Calculation of Actual Payroll Withholding Taxes On or before March 15 of each of the years 2016 through 2019, the City shall calculate the actual payroll withholding taxes collected and received during the then preceding calendar year and in respect of that preceding calendar year by the City from all Employees (as defined below). For purposes of that calculation, the Company acknowledges and agrees that the total amount of actual payroll withholding taxes in respect of any calendar year shall be determined based solely upon the amount of payroll withholding tax payments actually received by the City from the Company during that calendar year. The Company agrees that the determination of whether to include SPB #925249v1: 11 -03 -2014 -2- in such calculation any amount received by the City in respect of any calendar year but following the conclusion of that calendar year, shall be solely within the discretion of the City. 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 o 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) Employer Identification Number The Company's Employer Identification Number is . The Company agrees that if the Employer Identification Number changes at any time during the term of this Agreement, the Company will notify the City of such change, including the new Employer Identification Number, within thirty (30) days of the occurrence of such change. (iv) Annual Incentive Payments to the Company If the actual payroll withholding taxes collected and received by the City pursuant to subsection 2(c)(i) during the then preceding calendar year and in respect of that preceding calendar year from all Employees, net of refunds (such amount being referred to as the "Actual Withholdings "), equal or exceed the Target Withholdings (as defined in subsection 2(c)(v)) 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(e)), an amount equal to the product of (A) an amount equal to the Actual Withholdings, multiplied by (B) ten percent (10 %) (with each such product being referred to as an "Annual Incentive Payment"); provided, however, that (1) the City shall not be required pursuant to this subsection 2(c) to remit an Annual Incentive Payment to the Company in excess of the Annual Cap (as defined in subsection 2(c)(v)) in any calendar year, and (2) the aggregate amount of all Annual Incentive Payments remitted pursuant to this subsection 2(c) by the City to the Company shall not exceed Seventy - Four Thousand and 00 /100 Dollars ($74,000.00). (v) Target Withholdings and Annual Cap The Target Withholdings and Annual Cap for each of the calendar years 2015 through 2018 shall be: Calendar Year Target Withholdings Annual Cau 2015 $ 166,000 $ 17,000 2016 174,000 18,000 2017 182,000 19,000 2018 190,000 20,000 (vi) Forfeiture of Right to Receive Workforce Creation Incentive Payment The Company agrees and acknowledges that Annual Incentive Payments provided for in subsection 2(c) are being made by the City to the Company in consideration for the Company's agreement to execute the Initial Lease Agreement for the location of an office and associated operations and workforce within the City and to create new jobs and employment opportunities, all within the City. The Company further agrees that if the Target Withholdings requirement is not met for any given calendar year as set forth in subsection SPB #915249v1: 11 -03 -2014 - 3 - 2(c)(v), the City shall not be obligated to make an Annual Incentive Payment to the Company for the calendar year in respect of which the Target Withholdings requirement was not satisfied. Failure to satisfy 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. (d) Method of Payrnent 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. (e) 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 moneys 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) investment 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; (viii) rental income which is deposited in the City's General Fund; and (ix) gifts and donations. Section 3. Miscellaneous. (a) Assi ngnment 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 and inure to the benefit of the Parties and their respective successors and permitted assigns. (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. SPB #925249v1: 11 -03 -2014 -4- (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) Economic Development Assistance Certification The Company has made no false statements to the City in the process of obtaining approval of the incentives described in this Agreement. If any representative of the Company has knowingly made a false statement to the City to obtain the incentives described in this Agreement, the Company shall be required to immediately return all benefits received under this Agreement pursuant Ohio Revised Code Section 9.66(C)(2) and shall be ineligible for any future economic development assistance from the State, any State agency or a political subdivision pursuant to Ohio Revised Code Section 9.66(C)(1). The Company acknowledges that any person who provides a false statement to secure economic development assistance may be guilty of falsification, a misdemeanor of the first degree, pursuant to Ohio Revised Code Section 2921.13(F)(1), which is punishable by a fine of not more than $1,000 and/or a term of imprisonment of not more than six months (f) Entire Agreement This Agreement constitutes the entire Agreement between the Parties on the subject matter hereof and supersedes all prior negotiations, agreements and understandings, both written and oral, between the Parties with respect to such subject matter. This Agreement may not be amended, waived or discharged except in an instrument in writing executed by the Parties. (g) 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 such proceedings as may be 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. (h) 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. (i) 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 agreement 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 SPB #925249v1: 11 -03 -2014 -5- 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. 0) Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio without regard to its principles of conflicts of laws. 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. (k) Legal Authori ty . 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. (1) 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. (m) 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 if hand - 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 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: Exact Holding North America, Inc. Dublin, Ohio 4301_ Attention: 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. SPB #925249v1: 11 -03 -2014 -6- (n) No Waiver No right or remedy herein conferred upon or reserved to any Party is intended to be exclusive of any other right or remedy, and each and every right or remedy shall be cumulative and in addition to any other right or remedy given hereunder, or now or hereafter legally existing upon the occurrence of any event of default hereunder. The failure of any Party to insist at any time upon the strict observance or performance of any of the provisions of this Agreement or to exercise any right or remedy as provided in this Agreement shall not impair any such right or remedy or be construed as a waiver or relinquishment thereof. Every right and remedy given by this Agreement to the Parties hereto may be exercised from time to time and as often as may be deemed expedient by the parties hereto, as the case may be. (o) Recitals The Parties acknowledge and agree that the facts and circumstances as described in the Recitals hereto are an integral part of this Agreement and as such are incorporated herein by reference. (p) 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. (q) Survival of Representations and Warranties All representations and warranties of the Parties in this Agreement shall survive the execution and delivery of this Agreement. (r) Third Party Beneficiaries Nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. (REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURE PAGE FOLLOWS) SPB #925249v1: 11 -03 -2014 -7- IN WrrNEss WHEREOF, the City and the Company have caused this Agreement to be executed in their respective names by their duly authorized representatives, all as of the date first written above. CITY OF DUBLIN, OHIO i Printed: Marsha I. Grigsby Title: City Manager Approved as to Form: By: Printed: Stephen J. Smith Title: Director of Law EXACT HOLDING NORTH AMERICA, INC. Printed: Title: SPB #925249v1: 11 -03 -2014 -8- FISCAL OFFICER'S CERTIFICATE 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 during Fiscal Year 2014 have been appropriated lawfully for that purpose, and are in the Treasury of the City or in the process of collection to the credit of an appropriate fund, free from any previous encumbrances. This Certificate is given in compliance with Sections 5705.41 and 5705.44, Ohio Revised Code. Dated: , 2014 Angel L. Mumma Director of Finance City of Dublin, Ohio SPB #925249v1: 11 -03 -2014 -9-