Ordinance 073-18RECORD OF ORDINANCES
Dayton Legal Blank, Inc.
Ordinance No. 73-18 Passed
Form No. 30043
20
AN ORDINANCE AUTHORIZING THE PROVISION OF CERTAIN
INCENTIVES TO OHIOHEALTH CORPORATION TO INDUCE IT
TO LEASE OR PURCHASE A FACILITY TO RETAIN AND
EXPAND ITS NON -CLINICAL OFFICE AND ITS ASSOCIATED
NON -CLINICAL 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 6, 2004, the City desires to encourage commercial office development and create
and preserve jobs and employment opportunities within the City; and
WHEREAS, OhioHealth Corporation (the "Companyrecently 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 or purchasing a facility to retain and expand its non -
clinical office and its associated non -clinical 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 lease or purchase a facility to retain and expand its non -clinical office and its associated
non -clinical 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,T EREFORE, 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 or purchase a facility for the retention and
expansion of its non -clinical office and its associated non -clinical 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.
Dayton Legal Blank, Inc.
Ordinance No.
RECORD OF ORDINANCES
73-18
Form No. 30043
Passed Page 2 of 2 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 all be in full force and effect on the earliest date permitted
by law.
Sign¢:
yor - PrqtidincTOfiicer
Attest:
Clerk of Council
Passed: 2018)
Effective: , 2018
Office of the City Manager
5200 Emerald Parkways Dublin, OH 43017.1090
City of Dublin Phone; 614-410.4400 s Fax; 614-410.4490
memo
To; Members of Dublin City Council
From: Dana L, McDaniel, City Mana
Date: October 30, 2018
Initiated By: Colleen Gilger, Economic Development Director
Re: Ordinance 73-18 - Economic Development Agreement with Ohio Health
Background
In 2005, the City of Dublin provided incentives for the attraction of OhioHealth's Revenue Cycle
Office consisting of 300+J- full time employees, Since the execution of that Economic Development
Agreement, OhioHealth has grown exponentially, both in Dublin and the Columbus Region.
Not only did the organization locate the 300+1• office -related jobs, but it has constructed and
operates Dublin Methodist Hospital (currently under expansion) and has added hundreds of jobs,
both in the patient -care and non -clinical sides of its business, Between 2008 and 2018, OhioHealth
increased the number of jobs in Dublin from roughly 900 employees to more than 1,700, The
company is now the second largest employer in the City of Dublin,
Economic Development staff has been in discussions with OhioHealth regarding the future of its
non -clinical jobs in Dublin, as multiple office lease terms are ending in the next 12 to 24 months,
The company is hopeful in planning a consolidation of multiple leases and office uses into one
location, and OhioHealth would prefer to own a building, Jointly, we have identified a location that
meets OhioHealth's future growth needs,
Revisions since First Reading on October 22, 2018
Some terms in the Economic Development Agreement (EDA) have been modified since
the introduction of this Ordinance on October 22, 2018, The changes are outlined below,
and are reflected in the attached redlined Economic Development Agreement,
a Because the facility selected will need time to be renovated during a significant portion of
2019, the job and payroll growth figures have been extended from all occurring in 2019 to
instead occurring gradually from 2020 through 2024,
o The original EDA proposal included an 11 -year Performance Incentive (2019-2029) on a
sliding scale from 20% to 17% over time, capped annually at $400,000, This has been
updated, The sliding scale now more broadly ranges from 20% to 15% over the term, The
annual cap payments were reduced in Years 1-4 to $375,000, and remain at $400,000 for
Years 5-11, The company would still be required to reach non -clinical job payroll growth
targets annually to receive these payments,
Memo re, Ordinance 73-18 - Ohio Health EDA
October 30, 2018
Page 2 of 2
o Additionally, the City proposes a onetime $600,000 Retention Grant tied to the acquisition
of a minimum 100,000 -square -foot facility in Dublin and receiving occupancy in 2019, This
amount did not change,
c The proposed $60,000 Technology Grant has been removed. Ohio Health will pay the costs
to connect the new facility into the Dublink network
o The originally proposed package representing $6.05 million has been renegotiated to $4.9
million.
Recommendation
Staff recommends approval of Ordinance 73-18 including the revised version of the EDA agreement
at the second reading/public hearing on November 5, 2018. The anticipated growth of the
OhioHealth network within and outside of Dublin will likely have a positive influence on the continued
growth of its non -clinical support operations located within Dublin, Please contact Colleen Gilger with
any questions,
Office of the City Manager
5200 Emerald parkway • Dublin, OH 43017-1090
�� U III Phone; 614.410-4400 •Fax; 614.410-4490 Memo
To: Members of Dublin City Council
From: Dana L. McDaniel, City Manage i'�,
Date: October 15, 2018
Initiated By: Colleen Gilger, Economic Development Director
Re: Ordinance 73-18 - Economic Development Agreement with OhioHealth
Background
In 2005, the City of Dublin provided incentives for the attraction of OhioHealth's Revenue Cycle
Off ce consisting of 300+/- full time employees. Since the execution of that Economic Development
Agreement, OhioHealth has grown exponentially, both in Dublin and the Columbus Region,
Not only did the organization locate the 300+/- office -related jobs, but it has constructed and
operates Dublin Methodist Hospital (currently under expansion) and has added hundreds of jobs,
both in the patient -care and non -clinical sides of its business, Between 2008 and 2018, OhioHealth
increased the number of jobs in Dublin from roughly 900 employees to more than 1700, The
company is now the second largest employer in the City of Dublin,
Economic Development staff has been in discussions with OhioHealth regarding the future of its
non -clinical jobs in Dublin, as multiple office lease terms are ending in the next 12 to 24 months,
The company is hopeful in planning a consolidation of multiple leases and office uses into one
location, and OhioHealth would prefer to own a building. Jointly, we have identified a location that
meets OhioHealth's future growth needs,
The Economic Development Agreement proposed by the City of Dublin includes an 11 -year
Performance Incentive (2019-2029) on a sliding scale from 20% to 17% over time, capped
annually at $400,000. The company would be required to reach non -clinical job payroll growth
targets annually to receive these payments, Additionally, the City proposes a one-time $600,000
Retention Grant tied to the acquisition of a minimum 100,000 -square -foot facility in Dublin and
receiving occupancy in 2019, and in order to assist the company in connecting a new location to
Dublink, the City proposes a $50,000 Technology Grant to assist in their IT renovations and
buildout.
The total package offered represents $5°05 million, The City expects to net approximately $17.8
million over the term,
Recommendation
Staff recommends approval of Ordinance 73-18 at the second reading/public hearing at the
November 5, 2018 City Council meeting, The anticipated growth of the OhioHealth network within
and outside of Dublin will likely have a positive influence on the continued growth of its non-clinica
support operations located within Dublin, Please contact Colleen Gilger 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, and OHIoHEALTH CORPORATION, an
Ohio nonprofit 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 either lease or purchase afacility to retain and expand its
non -clinical office and its associated non -clinical operations and workforce, all within the City; and
WHEREAS, pursuant to Ordinance No. -18 passed on , 2018 (the
"Ordinance"), the City has determined to offer the economic development incentives described
herein to induce the Company to lease or purchase a facility for the retention and expansion of the
Company's non -clinical office and its associated non -clinical 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 lease or purchase afacility to retain and
expand its non -clinical office and its associated non -clinical operations and workforce, all within the
City;
Now THEREFORE, in consideration of the foregoing, the promises contained herein, and other
good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the
City and the Company covenant, agree and obligate themselves as follows:
Section 1. Company's Agreement to Lease or Purchase a Facility to Retain and Expand
its Non -Clinical Office and its Associated Non -Clinical Operations and Workforce Within the City.
(a) In consideration for the economic development incentives to be provided by the City
herein, the Company agrees that it will lease or purchase a Facility (as defined in subsection 1(b))
within the City to retain and expand its non -clinical office and its associated non -clinical operations
and workforce, all within the City, all consistent with the terms of this Agreement. The Company
SPB #0I0 -8679-5192v3: I0-24-2018
expects to retain approximately One Thousand Three Hundred Seven (1,307) existing, Non -Clinical
Employee positions within the City. The Company also expects to create Two Hundred (200) new,
Non -Clinical Employee positions within the City by December 31, 2024. The total estimated payroll
withholdings for the retained and new employee positions is estimated to be Twenty -Two Million
Seven Hundred Thousand Dollars ($22,700,000) over the term of this Agreement.
(b) For purposes of this Agreement, the Facility" shall (i) be a building located within
the City, (ii) include at least 100,000 square feet of usable space, (iii) be the situs of employment for
Non -Clinical Employees of the Company and (iv) be the subject facility of either the Lease
Agreement or the Purchase Agreement (as each is defined below). For purposes of this Agreement,
a "Non -Clinical Employee" shall be an individual who is employed by the Company or its
subsidiaries or affiliates and has no responsibility for the direct treatment of patients or the direct
provision of patient care.
(c) The Company agrees that the City's obligations to remit payments pursuant to Section
2 of this Agreement shall be contingent upon (i) no later than 5:00 p.m. (ET) on Wednesday, January
2, 2019 the Company shall have delivered to the City either a photocopy of (A) a fully executed
agreement evidencing the Company's lease of a Facility for a minimum term of Fifteen (15) years
which shall also include an option to purchase a minimum 100,000 usable square -foot facility within
the City prior to July 1, 2024 (the "Lease Agreemem") or (B) such documentation which reasonably
demonstrates to the City that the Company has purchased the Facility (the `Purchase Agreement"),
which in either case will accommodate the retention and expansion of the Company's non -clinical
associated operations and workforce, (ii) the Company assuming occupancy of the Facility no later
than December 31, 2019 and (iii) 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 deliver either the Lease Agreement or the Purchase Agreement
within the period set forth in this subsection and subsection 5(s)(i), (iv) this Agreement will terminate
without such failure constituting a breach by the Company, (v) the City's obligation to remit the
Retention Incentive Payment, any Annual Incentive Payments or any Bonus Annual Incentive
Payments will be terminated and (vi) the Company will owe no penalties to the City as a result of
such failure.
Section 2. Citv's Agreement to Provide Incentives.
(a) General. In consideration for the Company's agreement to lease or purchase the
Facility and retain and expand its non -clinical 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) Retention Incentive.
(i) Retention Incentive Pavment to the Company. The Company agrees to lease
or purchase the Facility and to retain and expand its non -clinical office and its associated non -
clinical operations and workforce, all within the City. In consideration of the Company's
agreement to lease or purchase the Facility and to retain and expand that non -clinical office
and retain and create employment opportunities within the City, and subject to the Company's
SPB #0I0 -8679-5192v3: 10-24-2018 - 2 -
compliance with the requirements set forth in subsection 2(d), the City agrees to provide to
the Company a retention incentive payment (the Retention Incentive Payment") in the
amount of Six Hundred Thousand and 00/100 Dollars ($600,000.00), payable to the Company
no later than thirty (30) days following the occurrence of (A) the Company's satisfaction of
the requirement in either subsection l(c)(i)(A) or subsection 1(c)(i)(B) and (B) the Company's
satisfaction of the requirement in subsection l(c)(ii).
(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 the Company in consideration for the Company's
agreement to lease or purchase the Facility and retain and expand its non -clinical office and
its associated non -clinical operations and workforce, and to retain and create 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 Payment to the Company as required by this subsection 2(b).
(c) Workforce Creation Incentive.
(i) Calculation of Actual Pavroll Withholding Taxes. On or before March 15 of
each of the years 2020 through 2025, and provided the requirements of subsection 2(c)(vii)
are satisfied, also on or before March 15 of each of the years 2026 through 2030, 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
further acknowledges and agrees that any amount received by the City in respect of any
calendar year, but following the conclusion of that calendar year, will not be considered in the
total amount of actual payroll withholding taxes for that calendar year. The City reserves in
its sole discretion the right to waive this limitation.
(ii) Employees. For purposes of this Section 2, `Employees" shall include only
those Non -Clinical Employees (as defined in subsection 1(b)) of the Company whose situs of
employment is at (A) the Facility or (B) any other facility located within the City.
(iii) Information Relating to Employees. 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 of each calendar year.
(iv) 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.
SPB #0I0 -8679-5192v3: 10-24-2018 - 3 -
(v) Annual Incentive Payments to the Company. Subject to the Company's
compliance with the requirements set forth in subsection 2(d), ifthe 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)(vi)) 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(f)), an amount equal to the product
of (A) the Actual Withholdings for that preceding calendar year multiplied by (B) the
Incentive Factor for that calendar year (as defined in subsection 2(c)(vi)) (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)(vi)) 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 Two Million
ThreeHundred Thousand and 00/100 Dollars ($2,300,000$999), and if the
requirements of subsection 2(c)(vii) are satisfied, the sum of all Annual Incentive Payments
and Bonus Annual Incentive Payments remitted pursuant to this subsection 2(c) by the City
to the Company shall not exceed Four Million Three&ew Hundred Thousand and 00/100
Dollars ($4,300,000$4499 999).
(vi) Target Withholdings, Incentive Factor and Annual Can. The Target
Withholdings, Incentive Factor and Annual Cap for each of the calendar years 2019 through
2029 shall be as follows:
Calendar Year
Target Withholdings
Incentive Factor
2019
$4$ 1.617.568
20%
2020
',90r 02,9791.719.919
20
2021
1,940,937- 1.824.318
1924
2022
',^�4 1.939.804
1924
2023
2,019,35i 2.039.420
184-9
2024
2,/1[�Qo 2.080.208
1841
2025(l)
^ ' ^�S 2.121.813
1843
2026(l)
2z42,95 1 2.164.249
174-8
2027(l)
2,'�S 2.207.534
17
2028(l)
2,^^� 2.251.684
164-7
2029(l)
2,274-117 2.296.718
154-7
Payments in respect of calendar years 2025 through 2029 are
also subject to subsection 2(c)(vii).
Annual Cap
$499375,000
499375,000
494375,000
444375,000
400,000
400,000
400,000
400,000
400,000
400,000
400,000
(vii) Bonus Annual Incentive Payments to the Company. The City agrees that if
the Company provides to the City on or before July 1, 2024 such documentation which
reasonably demonstrates to the City that the Company has purchased the Facility or another
facility that meets the requirements of the Facility as set forth in subsection 1(b), then the
Company shall be eligible to receive an Annual Incentive Payment (each a Bonus Annual
Incentive Payment") in respect of each of the calendar years 2025 through 2029 which will
sPB #010-8679-5192v3: 10-24-2018 - 4 -
be calculated at the same time and in the same manner as described in subsection 2(c)(v) and
paid in accordance with this Section 2; provided that each Bonus Annual Incentive Payment
shall be subject to an Annual Cap (as defined in subsection 2(c)(vi)) in each such calendar
year.
(viii) Forfeiture of Right to Receive Annual Incentive Payments and Bonus Annual
Incentive Pavments. The Company agrees and acknowledges that the Annual Incentive
Payments and the Bonus 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 lease or
purchase the Facility and retain and expand its non -clinical 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 Target Withholdings requirement is
not met for any given calendar year as set forth in subsection 2(c)(vi), the City shall not be
obligated to make an Annual Incentive Payment or Bonus Annual Incentive Payments (as the
case may be) 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 or Bonus Annual Incentive Payments (as the case may be) for
any subsequent calendar year in respect of which the Target Withholdings requirement is
satisfied.
(d) 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
any of the tax years 2019 through 2024 (inclusive), and if the requirements of subsection
2(c)(vii) are satisfied, in respect of any of the tax years 2025 through 2029 (inclusive), 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(d)(ii), the Company shall forfeit its right to
receive and the City shall not be obligated to remit any payment which the City might
otherwise be required to pay pursuant to subsections 2(b)(i), 2(c)(v) or 2(c)(vii) (each
applicable payment being referred to as a `Required Payment') in respect ofthat tax year.
(ii) Not earlier than fifteen (15) days preceding the date on which the City is
required to make a Required Payment to the Company, 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 Required 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
SPB #0I0 -8679-5192v3: 10-24-2018 - 5 -
pursuant to the Dublin City Code (including any applicable interest and penalties), the City
will within fifteen (15) days of receipt of such payment remit to the Company the Required
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 such Required Payment is voided and that such Required Payment
will not be made, and will promptly provide written notification to the Company of such
determination.
(e) 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.
(f) 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
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. Access to Dublink. The City and the Company heretofore entered into an
Indefeasible Right to Use, dated October 24th , 2005 (the "2005 IRU') which generally
provided to the Company exclusive access to four (4) optical fibers through the City's Dublink
system. The City and the Company heretofore entered into an addendum to the Indefeasible Right to
Use, dated October 24, 2014, which generally provided to the Company exclusive access to two (2)
additional optical fibers through the City's Dublink system. The City hereby agrees to continue to
provide to the Company exclusive access to six (6) optical fibers through the City's Dublink system.
SPB #010-8679-5192v3: 10-24-2018 - 6 -
PFOA4dO P.@ fflptl r IIWA4.,..,......i . i@44 ..f,.
tl.....,,tfgHe4i .....ftl.. i,.t...,.i .�Ae ff, ei+. The City agrees
that the Company shall continue to have exclusive access to those six (6) optical fibers until the earlier
of (a) January 1, 2034 or (b) the date on which the City reasonably determines that (i) the Facility is
no longer occupied primarily by Non-Clinical Employees of the Company as described in the
Agreement or (ii) the Company's Actual Withholdings of Non-Clinical Employees in respect of any
calendar year are less than the Target Withholdings for that same calendar year, as outlined in Section
2(b)(vi).
Section 4. Existing Economic Development Agreement. This City and the Company
heretofore entered into an Economic Development Agreement, dated August 15, 2005 (the "2005
Agreemenf') which generally provided that the City would (a) remit certain income tax withholdings
based incentive payments to the Company and (b) provide the Company with exclusive access to four
(4) of the City's optical fibers through the Dublink system. The City and the Company agree that the
Company shall, to the extent that it complies with the applicable provisions of the 2005 Agreement,
be entitled to receive an incentive payment in respect of calendar year 2018 (in accordance with
Section 2(d) of the 2005 Agreement). The City and the Company further agree that except for the
respective obligations and rights of the City and the Company relative to the payment described in
the preceding sentence, the 2005 Agreement is hereby superseded by this Agreement and will be of
no further force and effect following the Effective Date.
Section 5. 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
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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 (including the
2005 Agreement in the manner provided in Section 4) 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
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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 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: OhioHealth Corporation
, 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.
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(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.
(s) Term of Agreement. This Agreement shall become effective as of the Effective Date
and shall continue until the earlier of (i) 5:01 p.m. (ET) on Wednesday, January 2, 2019 provided that
as of that time the Company shall have theretofore failed to satisfy the requirements of subsection
1(c)(i), (ii) January 1, 2020 provided that as of that time the Company shall have theretofore failed to
satisfy the requirements of subsection 1(c)(ii) or (iii) the day on which the final Annual Incentive
Payment or Bonus Annual Incentive Payment (as the case may be) which the City is obligated to pay
hereunder is received by the Company.
(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.
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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 asto Form:
C
Printed: Jennifer D. Readler
Title: Director of Law
CITY OF DUBLIN, OHIO
MM
Printed: Dana L. McDaniel
Title: City Manager
OHIOHEALTH CORPORATION
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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 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
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