Ordinance 008-16RECORD OF ORDINANCES
Dayton Legal Blank, Inc. Form No. 30043
Ordinance No. 08-16 Passed , 20
AN ORDINANCE AUTHORIZING THE PROVISION OF CERTAIN
INCENTIVES TO SMIYHS MEDICAL ASD, INC. TO INDUCE IT
TO RETAIN AN OFFICE AND ITS ASSOCIATED OPERATIONS
AND WORKFORCE WITHIN THE CITY, AND AUT1!�ORIZING 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 Flo. 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, Smiths Medical ASD, Inc. (the "Company recently performed a
comprehensive examination of its workforce needs, and eased on the results of this
examination, and induced by and in reliance on the economic development incentive
provided in the proposed Economic Development Agreement (as described below), the
Company is desirous of leasing a facility within the City to retain an office and its
associated operations and workforce within the City; and
WHEREAS, this Council has determined that it is necessary and appropriate and in the
best interests of the City to provide for an economic development incentive to the
Company, as described in the proposed Economic Development Agreement; and
WHEREAS, this Council has determined to offer the economic development incentive,
the terms of which are set forth in a substantially final form of Lconomic Development
Agreement presently on file in the office of the Clerk of Council, to induce the Company
to lease a facility and retain an office and its associated operations and workforce, all
within the City, which will result in the retention of 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, THE EFORE, 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 an economic development incentive in consideration for
the Company's agreement to lease a facility within the City for the retention of an office
and its associated operations and workforce within the City, which will result in the
retention of 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
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
Dayton Legal Blank, Inc.
Ordinance No.
Mwe
RECORD OF ORDINANCES
Form No. 30043
Passed Page 2 of 2 20
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
Clerk of Council
Passed: -.0 �dA 2016
Effective: ,Wn 140'z1j.--n 2016
Office of the Cl*ty Manager
1210 Emerald Parkway* Dublin, OH 43017-1090
ityof Dublin Phone: 614-410-4400 # Fax.- 614-410-4490
Cit
06-771A N
EAL�
To: Dublin City Council
(c_
From,,, Dana L. McDaniel, City Mana V
Date: February 18, 2016
Initiated By: Jeremiah Gracia, Economic Development Administrator
Re: Ordinance 08-16 - Economic Development Agreement with Smiths Medical Shared
Services
Staff has been in discussions with Smiths Medical's shared service office located in the Metro Office
District regarding its lease renewal options, some of which were outside the City of Dublin. The
company has been at its current location since 2005 and leases just under 34,000 square feet,
This office serves as the company's primary accounting and shared service center.
This economic development retention grant provides a one-time $30,000 retention grant payment
to the company. This grant is provided in consideration of the companys retention of 131 jobs and
$154,000 in annual payroll withholdings. The company must also execute a lease agreement
through at least 2021.
The City estimates it will net approximately $771,000 in total income tax withholdings over thd
term of this agreement.
7t
Staff recommends Council passage of Ordinance 08-16 at the second reading/public hearing on
March 7, 2016. Please contact Jeremiah Gracia with any questions.
ECONOMIC DEVELOPMENT AGREEMENT
THIS ECONOMIC DEVELOPMENT AGREEMENT (the Agreement') is made and entered into this
day of , 2016 (the Effective Date "), 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 SMITHS MEDICAL ASD, 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 retain an office and associated operations and workforce
within the City; and
WHEREAS, pursuant to Ordinance No. -16 passed on , 2016 (the
"Ordinance "), the City has determined to offer the economic development incentive described herein
to induce the Company to lease afacility within the City for the retention of an office and associated
operations and workforce within the City, which will result in the retention of existing 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 this incentive in order to induce the Company to lease a facility and retain 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 Retain Its Operations and
Workforce Within the Citv. In consideration for the economic development incentive to be provided
by the City herein, the Company agrees that it will lease a facility within the City for the retention of
an office and associated operations and workforce within the City, all consistent with the terms of
this Agreement. The Company expects to retain One Hundred Thirty -One (131) existing employee
positions in the City. The total estimated payroll withholdings for the existing employee positions is
estimated to be One Hundred Fifty -Four Thousand and 00 /100 Dollars ($154,000.00) over the term
of this Agreement. The Company agrees that the City's obligation to remit payment pursuant to
Section 2 of this Agreement shall be contingent upon the Company delivering to the City a fully
executed copy of an agreement evidencing the Company's lease of a facility within the City for a
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minimum term of five (5) years (from 2016 through 2021) (the "Lease "); provided, however, and
notwithstanding any provision herein to the contrary, if the Company shall, after having acted in good
faith, fail to execute a Lease within the period set forth in subsection 3(r)(i), (i) this Agreement will
terminate without such failure constituting a breach by the Company, (ii) the City's obligation to remit
the Retention Incentive will be terminated and (iii) the Company will owe no penalties to the City as
a result of such failure.
Section 2. Citv Agreement to Provide Incentive.
(a) General. In consideration for the Company's agreement to execute the Lease for the
retention of an office and associated operations and workforce within the City, the City agrees to
provide an economic development incentive to the Company in accordance with this Section.
(b) Retention Incentive.
(i) Incentive Pavment to the Company. The Company agrees to execute the
Lease for the retention of an office and associated operations and workforce within the City.
In consideration of the Company's agreement to execute the Lease and to retain that office
and retain employment opportunities within the City, the City agrees to provide to the
Company a Retention Incentive (the Retention Incentive ") in the amount of Thirty Thousand
and 00 /100 Dollars ($30,000.00), payable to the Company within thirty (30) days following
the occurrence of (A) the Company's execution of the Lease and provision to the City of
documentation in support thereof and (B) the occupancy of the space described in the Lease
to retain the Company's office and associated operations and workforce within the City in a
manner consistent with this Agreement.
(ii) Forfeiture of Right to Receive Incentive Payment The Company agrees and
acknowledges that the Retention Incentive provided for in subsection 2(b)(i) is being made
by the City to the Company in consideration for the Company's agreement to execute the
Lease and retain an office and associated operations and workforce within the City and to
retain 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
Retention Incentive to the Company as required by this subsection 2(b).
(c) Method of Payment. The payment 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 Payment Not Debt: Payment Limited to Nontax Revenues.
Notwithstanding anything to the contrary herein, the obligation of the City pursuant to this
Agreement shall not be a general obligation debt or bonded indebtedness, or apledge 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 nontax revenues and on a subordinated basis to the payment of debt
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service charges as may hereafter be payable on securities of the City which are payable from the
City's nontax 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 nontax 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) 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 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.
(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
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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 Liabilitv. 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
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 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 avalid and binding obligation of
the Parties, enforceable in accordance with its terms.
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(1) Limit on Liabilitv. 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: Smiths Medical ASD, 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.
(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
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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) Term of Agreement. This Agreement shall become effective as of the Effective Date
and shall continue until the earlier of (i) the One Hundred Eightieth (180"') day following the Effective
Date provided that on that day the Company shall have theretofore failed to satisfy the requirements
of subsections 2(b)(i)(A) and 2(b)(i)(B) or (ii) the day on which the Retention Incentive is received
by the Company.
(s) 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)
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IN WITNESS 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.
Approved as to Form:
C
Printed: Jennifer Readler
Title: Assistant Director of Law
CITY OF DUBLIN, OHIO
Printed: Dana L. McDaniel
Title: City Manager
SMITHS MEDICAL ASD, INC.
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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 2016 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: .2016
Angel L. Mumma
Director of Finance
City of Dublin, Ohio
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