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Ordinance 069-18Dayton Legal Blank, Inc. Ordinance No. RECORD OF ORDINANCES Form No. 30043 69-18 Passed , 20 AN ORDINANCE AUTHORIZING THE PROVISION OF A CERTAIN INCENTIVE TO JOHNSON CONTROLS TO INDUCE IT TO LEASE 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 "Strategjl7 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, Johnson Controls Fire Protection LP and Johnson Controls Security Solutions LLC (collectively referred to herein as the "CompanVy 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 incentive provided in the proposed Economic DeVE�lopment Agreement (as described below), the Company is desirous of leasing 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 target 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 a certain economic development incentive to the Company, as described in the proposed Economic Development Agreement; and WHEREAS, this Council has determined to offer an economic development incentive, 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 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-RDEFORE, 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 a certain economic development incentive in consideration for the Company's agreement to lease 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 thE�ir 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. Davton Leeal Blank. Inc. Ordinance No. 060* RECORD OF ORDINANCES Form No. 30043 Page2of2 Passed . 20 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 open to the public, all in compliance with the law including Section 121.22 of the Revised Code. Section 4 This Ordinance shall a e in full force and effect on the earliest date permitted by law Sicu�ed: yor - Presidi fkttest: � Clerk of Council Passed: 6A4o-� , 2018 l Effective: t% � ' � � , 2018 Tom. Members of Dublin City Council From,,m Dana L. McDaniel, City Mana; e - Date,* October 4, 2018 ke: Ordinance 69-18 Economic Development Agreement with Johnson Controls. Staff has been in discussions with Johnson Controls about the consolidation and expansion of their Central Ohio office locations. The company plans to consolidate offices located in Dublin and Westerville from their Fire/Security/ and HVAC businesses. Johnson Controls is a global diversified technology and industry leader serving a wide range of customers in more than 150 countries. It is on the Fortune Global 500 list (#272) and is publicly traded on the New Stock Exchange (JCI). The new location will serve as its central training facility ?.eadquarters. The incentive payment also requires the company to execute a new lease of at least five (5) years for an office location within the Dublin corporation limits. The incentive payment is only tied to retaining Dublin based employees and does not incentivize the relocation of employees from Westerville to Dublin. Stai� recommends Council passage of Ordinance 69-18 at the second reading/public hearing on - October 22, 2018. Please contact Jeremiah Gracia with any questions. ECONOMIC DEVELOPMENT AGREEMENT THIS ECONOMIC DEVELOPMENT AGREEMENT (the Agreement') is made and entered into this day of , 2018 (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, JOHNSON CONTROLS FIRE PROTECTION LP, a Delaware limited partnership ("Johnson Controls Fire Protection") and JOHNSON CONTROLS SECURITY SOLUTIONS LLC, a Delaware limited liability company ("Johnson Controls Security Solutions" and together with Johnson Controls Fire Protection, the "Company" and the Company 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 incentive provided in this Agreement, the Company desires to lease a facility to retain and expand an office and its associated operations and workforce, all within the City; and WHEREAS, pursuant to Ordinance No. 48 passed on , 2018, the City has determined to offer the economic development incentive described herein to induce the Company to lease 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 that incentive in order to induce the Company to lease a facility 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. Company's Agreement to Lease a Facility to Retain and Expand an Office and its Associated Operations and Workforce Within the Citv. (a) In consideration for the economic development incentive to be provided by the City herein, Johnson Controls Fire Protection and Johnson Controls Security Solutions each agree that either or both of such Parties will lease afacility which is located within the City to retain and expand an office and its associated operations and workforce, all within the City, and all consistent with the SPB #0I0 -8671-6227v4: 09-27-2018 terms of this Agreement. The Company expects to retain One Hundred Forty (140) existing employee positions within the City. The annual estimated payroll withholdings for those retained employee positions is estimated to be One Hundred Sixty -Six Thousand and 00/100 Dollars ($166,000.00). The Company also expects to create Seventy -Five (75) new employee positions within the City. The annual estimated payroll withholdings for those newly created employee positions is estimated to be One Hundred Twenty Thousand and 00/100 Dollars ($120,000.00). (b) The Company agrees that the City's obligations to remit a payment pursuant to Section 2 of this Agreement shall be contingent upon (i) the Company delivering to the City a photocopy of a fully executed agreement evidencing either Johnson Controls Fire Protection's or Johnson Controls Security Solution's (or both collectively) lease of a facility within the City for a minimum term of five (5) years (the "Lease Agreement'), which will accommodate the retention and expansion of the Company's associated operations and workforce 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 execute the Lease Agreement within the period set forth in subsection 3(s)(i), (iii) this Agreement will terminate without such failure constituting a breach by the Company, (iv) the City's obligation to remit the Retention Incentive Payment 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 Incentive. (a) General. In consideration for either Johnson Controls Fire Protection's or Johnson Controls Security Solution's (or both collectively) agreement to lease 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 an economic development incentive to the Company in accordance with this Section. (b) Retention Incentive. (i) Retention Incentive Payment to the Company. The Company agrees to lease a facility and to retain and expand an office and its associated operations and workforce, all within the City. In consideration either Johnson Controls Fire Protection's or Johnson Controls Security Solution's (or both collectively) agreement to lease a facility and to retain and expand that office and retain and create employment opportunities within the City, and subjectto the Company's compliance with the requirements set forth in this subsection 2(b)(i) and subsection 2(c), the City agrees to provide to the Company a retention incentive payment (the Retention Incentive Payment') in the amount of Thirty -Three Thousand Five Hundred and 00/100 Dollars ($33,500.00), payable to Johnson Controls Fire Protection no later than thirty (30) days following the occurrence of: (A) either Johnson Controls Fire Protection's or Johnson Controls Security Solution's (or both collectively) lease of afacility within the City and provision to the City of a photocopy of the Lease Agreement, SPB #0I0 -8671-6227v4: 09-27-2018 - 2 - (B) issuance by the City of a certificate of occupancy for that leased facility (which issuance will not be unreasonably conditioned, delayed or withheld by the City), and (C) determination by the City that the actual payroll withholding taxes collected and received during calendar year 2018 and in respect of that calendar year by the City from all Employees (as defined below) was at least equal to One Hundred Sixty -Six Thousand and 00/100 Dollars ($166,000.00). For purposes of this subsection 2(b)(i)(C), `Employees" shall include only those individuals employed by the Company and working within the City. (ii) Forfeiture of Right to Receive Retention Incentive Payment. The Company agrees and acknowledges that the Retention Incentive Payment provided for in subsection 2(b)(i) is being made by the City to Johnson Controls Fire Protection in consideration for either Johnson Controls Fire Protection's or Johnson Controls Security Solution's (or both collectively) agreement to lease a facility and retain and expand an office and its associated operations and workforce, and to retain existing and create new jobs and employment opportunities, all within the City. The Company further agrees that if the requirements of subsections 2(b)(i) and 2(c) are not satisfied, the City shall not be obligated to remit the Retention Incentive Payment to Johnson Controls Fire Protection as required by this subsection 2(b). (c) Filing of Municipal Income Tax Returns and Remission of Related Taxes. (i) The Company agrees that it shall timely (A) file directly with the City all municipal income tax returns and (B) remit directly to the City all municipal income tax payments, each as required by the Dublin City Code. While Ohio law currently permits the Company to file its municipal income tax returns and remit its municipal income tax payments directly through the Ohio Business Gateway, the Company acknowledges that if in respect of tax year 2018, or tax year 2019 provided that at the time this Agreement is still in effect, the Company either (C) files a related municipal income tax return or (D) remits a related municipal income tax payment, in either case directly with the Ohio Business Gateway instead of the City, then notwithstanding subsection 2(c)(ii), the Company shall forfeit its right to receive and the City shall not be obligated to remit the Retention Incentive Payment which the City might otherwise be required to pay pursuant to subsection 2(b)(i). (ii) Not earlier than fifteen (15) days preceding the date on which the City is required to make the Retention Incentive Payment to Johnson Controls Fire Protection, the City shall determine whether the Company is in full compliance with its obligation to remit municipal income taxes to the City pursuant to the Dublin City Code. If the City reasonably determines that the Company is not in full compliance, the City shall not be obligated to make the Retention Incentive Payment on the required payment date and will promptly provide written notification of such determination to the Company. If within sixty (60) days following the date of the City's written notification the City receives a payment from the Company which the City reasonably determines will cause the Company to be in full compliance with its municipal income tax obligations pursuant to the Dublin City Code (including any SPB #010-8671-6227v4: 09-27-2018 - 3 - applicable interest and penalties), the City will within fifteen (15) days of receipt of such payment remit to Johnson Controls Fire Protection the Retention Incentive Payment. If, however, the Company fails to timely remit sufficient payment to the City in accordance with the preceding sentence, the City may in its sole discretion determine that the City's obligation to remit the Retention Incentive Payment is voided and that such Retention Incentive Payment will not be made, and will promptly provide written notification to the Company of such determination. (d) Other Matters Relating to Municipal Income Taxes. (i) The Company agrees that, in accordance with the City's codified ordinances, as may hereafter be amended from time to time (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, 2019. (ii) Johnson Control Fire Protection's Federal Employer Identification Number is 58-2608861 and Johnson Control Security Solution's Federal Employer Identification Number is 58-1814102. The Company agrees that if either 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. (e) Method of Payment. The payment to be paid to Johnson Controls Fire Protection as provided in this Section 2 shall be made by the City to Johnson Controls Fire Protection by electronic funds transfer or by such other manner as is mutually agreed to by the City and Johnson Controls Fire Protection. (f) City's Obligation to Make Payment Not Debt: Payments 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 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 payment 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 SPB #0I0 -8671-6227v4: 09-27-2018 - 4 - 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 incentive described in this Agreement. If any representative of the Company has knowingly made a false statement to the City to obtain the incentive 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 SPB #0I0 -8671-6227v4: 09-27-2018 - 5 - 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. (1) Limit on Liability. 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: SPB #0I0 -8671-6227v4: 09-27-2018 - 6 - (i) the City at: City of Dublin, Ohio 5800 Shier Rings Road Dublin, Ohio 43016-7295 Attention: Economic Development Director (ii) the Company at: Johnson Controls Fire Protection LP , 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) Reporting Requirements. The Company acknowledges that it is hereby advised by the City that certain accounting reporting requirements may obligate the City to treat and report payments remitted hereunder to the Company as atax abatement. Notwithstanding any such reporting requirements, the Company acknowledges and agrees that the Company is not entitled hereunder to an abatement or exemption of any tax obligation that would otherwise be payable pursuant to the Dublin City Code. (q) Severability. If any provision of this Agreement, or any covenant, obligation or agreement contained herein is determined by a courtto 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. (r) Survival of Representations and Warranties. All representations and warranties of the Parties in this Agreement shall survive the execution and delivery of this Agreement. SPB #010-8671-6227v4: 09-27-2018 - 7 - (s) Term of Agreement. This Agreement shall become effective as of the Effective Date and shall continue until the earlier of (i) the Two Hundred Seventieth (270"') 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 Retention Incentive Payment which the City is obligated to pay hereunder is received by Johnson Controls Fire Protection. (t) 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 #010-8671-6227v4: 09-27-2018 - 8- 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 asto Form: C Printed: Jennifer D. Readler Title: Director of Law CITY OF DUBLIN, OHIO MM Printed: Dana L. McDaniel Title: City Manager .JOHNSON CONTROLS FIRE PROTECTION LP Title: .JOHNSON CONTROLS SECURITY SOLUTIONS LLC MM Printed: Title: SPB #0I0 -8671-6227v4: 09-27-2018 - 9 - 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 2018 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: .2018 Angel L. Mumma Director of Finance City of Dublin, Ohio SPB #010-8671-6227v4: 09-27-2018 - 10-