Ordinance 036-17RECORD OF ORDINANCES
Dayton Legal Blank, Inc.
Form No. 30043
Ordinance No. 36-17 Passed , 20
AN ORDINANCE AUTHORIZING THE PROVISION OF CERTAIr�
INCENTIVES TO BRIAN K. DORNER, M.D., INC. TO INDUCE IT
TO PURCHASE A FACILITY TO RETAIN AND EXPAND AN
OFFICE AND ITS ASSOCIATED OPERATIONS AND
WORKFORCE, ALL 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
0, 2004, the City desires to encourage commercial office development and create and
preserve jobs and employment opportunities within the City; and
WHEREAS, Brian K. Dorner, M.D., 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 propo -sed Economic Development Agreement (as described below), the
Company is desirous of purchasing a facility to retain and expand an office and its
associated operations and workforce, all 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 purchase a facility to retain and expand an office and its associated operations and
workforce, all within the City, which will result in the retention of existing and 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, TH 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 certain economic development incentives in consideration
for the Company's agreement to purchase a facility for the retention and expansion of an
office and its associated operations and workforce, all within the City, which will result in
the retention of existing and 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 taken
Dayton Legal Blank, Inc.
Ordinance No. 36 -17
RECORD OF ORDINANCES
Form No. 30043
Passed Page 2 of 2 , 20
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 Ordina e shall be in full force and effect on the earliest date permitted
by law.
14
Sig
Attest:
loe
Clerk of Council
Passed:
Effective:
2017
2017
VUU11H Office of the City Manager
6200 Emerald Parkway s Dublin, OH 430 17 -iQ90
Phone; 614- 410-4400 o Fax; 614 - 410 -449Q
To. Members of Dublin City Council
From Dana L, McDaniel, City Mana
Date. May 18, 2Q17
Initiated By, Colleen Gilger, Director of Economic Development
Kyle Kridler, Economic Development Administrator
Re. Ordinance 36 -17 - Economic Development Agreement with Donner Plastic Surgery
Background
Economic Development staff has been in discussions with Brian K, Darner, M,D,, Inc. (Darner
Plastic Surgery} about the relocation and expansion of their corporate headquarters and media!
facility within Dublin The company has outgrown its current leased location in Dublin, and has
been conducting a competitive real estate search in Columbus. They are considering the
acquisition of a property as their campany and customer base continues to grow.
Donner Plastic Surgery (formerly Capital City Cosmetic Surgery &Skin Health Center) is a local
cosmetic plastic surgery practice, which provides surgical and non - surgical procedures and has a
fully accredited operating room for surgery. Dr, Donner is board certified by the American Board of
Plastic Surgery and was voted "Best Plastic Surgeon in Columbus"
" by Readers' Choice Awards and
one of America`s Top Plastic Surgeons "'among other honors and distinctions, They were founded
in Dublin in 2Q04 and, due to their success, need new space to accommodate their growing,
regional business.
The project would result in the retention of 13 existing employees in Dublin and the addition of 23
new employees by the end of 2Q21, The campany would be required to acquire a prope�y within
the Ciry of Dublin for the agreement to take effect,
The Economic Development Agreement proposed by the City of Dublin to Donner Plastic Surgery is
a four -year, l2 °/a Performance Incentive on withholdings collected for all employees (2Q18.2Q21),
that is capped at $21,800 far the term of the agreement, Inconsideration, Donner Plastic Surgery
agrees to add 23 new jobs in Dublin by the end of 2Q2L The company must purchase a property
in Dublin and reach predetermined annual withholdings targets to qualify far these performance
incentives,
The City expects to net approximately $147,94Q over the four -year term,
Recommendation
Staff recommends Council passage of Ordinance 36 -17 at the second readingJpubiic hearing on
June 12, 2U17. Please contact Kyle Kridler with any questions you may have,
ECONOMIC DEVELOPMENT AGREEMENT
THIS ECONOMIC DEVELOPMENT AGREEMENT (the Agreement') is made and entered into this
day of , 2017 (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 BRIAN K. DORNER, M.D., INC.,
an Ohio 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 purchase a facility to retain and expand an office and its
associated operations and workforce, all within the City; and
WHEREAS, pursuant to Ordinance No. -17 passed on , 2017 (the
"Ordinance "), the City has determined to offer the economic development incentives described
herein to induce the Company to purchase a facility for the retention and expansion of an office and
its associated operations and workforce, all within the City, which will result in the retention of
existing and 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 purchase afacility to retain and expand
an office and its associated operations and workforce, all within the City;
Now THEREFORE, the City and the Company covenant, agree and obligate themselves as
follows:
Section 1. Companv's Agreement to Purchase a Facilitv to Retain and Expand an Office
and its Associated Operations and Workforce Within the Citv.
(a) In consideration for the economic development incentives to be provided by the City
herein, the Company agrees that it will purchase a facility to retain and expand an office and its
associated operations and workforce, all within the City, all consistent with the terms of this
Agreement. The Company expects to retain thirteen (13) existing employee positions to the City.
The Company also expects to create twenty -three (23) new employee positions within the City by
December 31, 2021. The total estimated payroll withholdings for the retained and new employee
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positions is estimated to be One Hundred Sixty -Nine Thousand Seven Hundred Forty and 00 /100
Dollars ($169,740.00) over the term of this Agreement.
(b) The Company agrees thatthe City's obligations to remit payments pursuantto Section
2 of this Agreement shall be contingent upon (i) the City issuing to the Company (which issuance will
not be unreasonably withheld, delayed or conditioned) a certificate of occupancy (the "Certificate of
Occupancy") for the renovation of the facility to be purchased and (ii) such other conditions as are set
forth in Section 2; provided, however, and notwithstanding any provision herein to the contrary, if the
Company shall, after having acted in good faith, fail to receive the Certificate of Occupancy within
the period set forth in subsection 3(r)(i), (iii) this Agreement will terminate without such failure
constituting a breach by the Company, (iv) the City's obligation to remit any Annual Incentive
Payments will be terminated and (v) the Company will owe no penalties to the City as a result of such
failure.
Section 2. City's Agreement to Provide Incentives.
(a) General. In consideration for the Company's agreement to purchase a facility and
retain and expand its associated operations and workforce, and to retain existing and create new jobs
and employment opportunities, all within the City, the City agrees to provide economic development
incentives to the Company in accordance with this Section.
(b) Workforce Creation Incentive.
(i) Calculation of Actual Payroll Withholding Taxes. On or before March 15 of
each of the years 2019 through 2022, 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
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 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 Federal Employer
Identification Number is . The Company agrees that if the Federal 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 Federal Employer Identification
Number, within thirty (30) days of the occurrence of such change.
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(iv) Annual Incentive Payments to the Company. If the actual payroll withholding
taxes collected and received by the City pursuant to subsection 2(b)(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(b)(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) the Actual Withholdings for that preceding calendar year multiplied by (B) twelve
percent (12 %) (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(b) to
remit an Annual Incentive Payment to the Company in excess of the Annual Cap (as defined
in subsection 2(b)(v)) in any calendar year, and (2) the aggregate amount of all Annual
Incentive Payments remitted pursuant to this subsection 2(b) by the City to the Company shall
not exceed Twenty -One Thousand Eight Hundred and 00 /100 Dollars ($21,800.00).
(v) Target Withholdings and Annual Can. The Target Withholdings and Annual
Cap for each of the calendar years 2018 through 2021 shall be as follows:
Calendar Year Target Withholdings Annual Cap
2018 $33,840 $4,400
2019 40,940 5,300
2020 44,160 5,700
2021 50,800 6,400
(vi) Forfeiture of Right to Receive Workforce Creation Incentive Payment. The
Company agrees and acknowledges that the 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 purchase a facility to retain and expand an office and its associated
operations and workforce, and to retain and create 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 2(b)(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.
(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 Nontax
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
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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
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
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(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.
(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 City or Company 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 the 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, 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: Brian K. Domer, M.D., Inc.
, Ohio 43
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 Three Hundred Sixtieth (360'') day following the Effective
Date provided that as of that day the Company shall have theretofore failed to satisfy the requirements
of subsection l(b)(i) or (ii) the day on which the final Annual Incentive Payment which the City is
obligated to pay hereunder 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 D. Readler
Title: Director of Law
CITY OF DUBLIN, OHIO
Printed: Dana L. McDaniel
Title: City Manager
BRIAN K. DORNER, M.D., 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 2017 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: .2017
Angel L. Mumma
Director of Finance
City of Dublin, Ohio
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