Ordinance 30-23RECORD OF ORDINANCES
Dayton Legal Blank, Inc. Form No. 30043
Ordinance No. 30-23 Passed , 20
AN ORDINANCE AUTHORIZING THE PROVISION OF
CERTAIN INCENTIVES TO KALMBACH FEEDS, INC. TO
INDUCE IT TO LEASE A FACILITY TO CREATE 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. 56-19 adopted on October 19, 2019,
the City desires to encourage commercial office development and create and
preserve jobs and employment opportunities within the City; and
WHEREAS, Kalmbach Feeds, Inc. (the “Company’) recently performed a
comprehensive examination of its workforce needs, and based on the results of this
examination, and induced by and in reliance on the economic development
incentives provided in the proposed Economic Development Agreement (as
described below), the Company is desirous of leasing a facility to create an office
and its associated operations and workforce, all within the City; and
WHEREAS, this Council has determined that it is necessary and appropriate and
in the best interests of the City to provide for certain economic development
incentives to the Company, as described in the proposed Economic Development
Agreement; and
WHEREAS, this Council has determined to offer the economic development
incentives, the terms of which are set forth in a substantially final form of Economic
Development Agreement presently on file in the office of the Clerk of Council, to
induce the Company to lease a facility to create an office and its associated
Operations and workforce, all within the City, which will result in the creation of new
jobs and employment opportunities, thereby improving the economic welfare of the
people of the State of Ohio and the City, all as authorized in Article VIII, Section 13
of the Ohio Constitution;
NOW, THEREFORE, 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 incentives in
consideration for the Company's agreement to lease a facility for the creation of an
office and its associated operations and workforce, all within the City, which will
result in the creation of new jobs and employment opportunities, is hereby approved
and authorized with changes therein not inconsistent with this Ordinance and not
substantially adverse to this City and which shall be approved by the City Manager.
The City Manager, for and in the name of this City, is hereby authorized to execute
that Economic Development Agreement, provided further that the approval of
changes thereto by that official, and their character as not being substantially
adverse to the City, shall be evidenced conclusively by the execution thereof. This
Council further authorizes the City Manager, for and in the name of the City, to
execute any amendments to the Economic Development Agreement, which
amendments are not inconsistent with this Ordinance and not substantially adverse
to this City.
RECORD OF ORDINANCES
Dayton Legal Blank, Inc. Form No. 30043
30-23
Ordinance No.
Page 2
Passed __, 20
121.22 of the Revised Code.
permitted by law.
Attest:
Passed:
Effective: August Z¥__, 2023
Sil 2A], 2023
Section 2. This Council further hereby authorizes and directs the City Manager,
the Director of Law, the Director of Finance, the Clerk of Council, or other
appropriate officers of the City to prepare and sign all agreements and instruments
and to take any other actions as may be appropriate to implement this Ordinance.
Section 3. This Council finds and determines that all formal actions of this Council
and any of its committees concerning and relating to the passage of this Ordinance
were taken in open meetings of this Council or committees, and that all deliberations
of this Council and any of its committees that resulted in those formal actions were
in meetings open to the public, all in compliance with the law including Section
Section 4. This Ordinance shall be in full force and effect on the earliest date
To: Members of Dublin City Council
From: Megan O’Callaghan, City Manager
Date: August 8, 2023
Initiated By: Jenna Goehring, Economic Development Administrator
Re: Ordinance 30-23 Economic Development Agreement with Kalmbach Feeds, Inc.
Background
Kalmbach Feeds, Inc. is an animal nutrition business. Currently headquartered in Upper Sandusky,
Ohio, the company was founded in 1963. Kalmbach Feeds has become the regional leader within
the animal nutrition industry. Kalmbach Feeds utilizes cutting-edge technology and proprietary
processes to deliver safe, innovative products with stringent ingredient testing, computer
automated systems, patented technologies, dedicated manufacturing facilities, and in-house
nutrition specialists. Kalmbach Feeds, Inc. is considering leasing a 1,800-3,600 SF facility in the
City of Dublin.
The Economic Development Agreement proposed is a three-year payroll performance withholding
incentive of up to $16,500 as a result of a 20% incentive factor. The performance incentive is
contingent upon Kalmbach Feeds providing documentation of an executed minimum five year lease
of a facility within Dublin commencing by October 31, 2023, receiving an occupancy permit and
occupying the facility by December 31, 2023. Should the company commit to a seven year lease
term, two additional years will be added to the payroll performance withholding incentive and the
cap will be increased to $32,500. The City is also proposing an $8,000 location grant to offset moving
and fit-up costs.
The project expects to create 18 new jobs based in Dublin by December 31, 2028. These jobs will
include marketing, finance, and logistics roles for the company. The project is anticipated to bring
approximately $150,000 in net withholdings through 2028.
Recommendation
Staff recommends Council passage of Ordinance 30-23 on August 28th, 2023.
Office of the City Manager
5555 Perimeter Drive • Dublin, OH 43016
Phone: 614-410-4400 Memo
1096778828\1\AMERICAS – 07-21-2023
ECONOMIC DEVELOPMENT AGREEMENT
THIS ECONOMIC DEVELOPMENT AGREEMENT (the “Agreement”) is made and entered into this
_____ day of __________, 2023 (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 KALMBACH FEEDS, INC., an Ohio
for profit 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. 56-19 adopted on October 19, 2019, 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 lease a facility to create an office and its associated
operations and workforce, all within the City; and
WHEREAS, pursuant to Ordinance No. 30-23 passed on August 28, 2023, the City has
determined to offer the economic development incentives described herein to induce the Company
to lease a facility for the creation of an office and its associated operations and workforce, all within
the City, which will result in the creation of new jobs and employment opportunities to improve the
economic welfare of the people of the State of Ohio and the City, all as authorized in Article VIII,
Section 13 of the Ohio Constitution; and
WHEREAS, the City and the Company have determined to enter into this Agreement to
provide these incentives in order to induce the Company to lease a facility to create an office and
its associated 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 agree and obligate themselves as follows:
Section 1. Company’s Agreement to Lease a Facility to Create an Office and its
Associated Operations and Workforce Within the City.
(a) Employees and Withholding. In consideration for the economic development
incentives to be provided by the City herein, the Company agrees that it will lease a facility which
will be of sufficient size to create an office (the “Facility”) and its associated operations and
workforce, all within the City, and all consistent with the terms of this Agreement. The Company
expects to create eighteen (18) new employee positions within the City by December 31, 2028. The
total estimated payroll withholdings for the new employee positions is estimated to be approximately
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One Hundred Fifty Thousand Dollars ($150,000) from the period January 1, 2024 through December
31, 2028.
(b) Lease of Facility. The Company agrees that the City’s obligations to remit the
payments 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 the Company’s lease of
the Facility within the City for a minimum term of five (5) years (the “Lease Agreement”) which term
shall commence no later than October 31, 2023, which will accommodate the creation of an office
and its associated operations and workforce, (ii) the City issuing to the Company (which issuance will
not be unreasonably delayed, conditioned or withheld) a certificate of occupancy (the “Certificate of
Occupancy”) for the Facility, (iii) the Company occupying the Facility and (iv) 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 deliver the executed Lease
Agreement, receive the Certificate of Occupancy or occupy the Facility within the respective periods
set forth in Sections 3(s)(i), 3(s)(ii) and 3(s)(iii), (A) this Agreement will terminate without such
failure constituting a breach by the Company, (B) the City’s obligation to remit the Location Incentive
Payment, any Annual Incentive Payments or any Bonus Annual Incentive Payments will be
terminated and (C) 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 lease the Facility for the
creation of an office and its associated operations and workforce, and to 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) Location Incentive.
(i) Location Incentive Payment to the Company. The Company agrees to lease
the Facility to create an office and its associated operations and workforce within the City. In
consideration of the Company’s agreement to lease the Facility for the creation of an office
and its associated operations and workforce, and creation of new jobs and employment
opportunities within the City, and subject to the Company’s compliance with the requirements
set forth in Section 2(d), the City agrees to provide to the Company a location incentive
payment (the “Location Incentive Payment”) in the amount of Eight Thousand Dollars
($8,000), payable to the Company no later than sixty (60) days following the date on which
the City shall have determined that all of the following conditions shall have been satisfied:
(A) the Company shall have executed the Lease Agreement and provided a photocopy of that
executed Lease Agreement to the City, (B) the City shall have issued a Certificate of
Occupancy for the Facility (which issuance will not be unreasonably conditioned, delayed or
withheld by the City) and (C) the Company shall have occupied the Facility; provided that in
no event shall the Location Incentive Payment be made by the City to the Company prior to
January 31, 2024.
(ii) Forfeiture of Right to Receive Location Incentive Payment. The Company
agrees and acknowledges that the Location Incentive Payment provided for in Section 2(b)(i)
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is being made by the City to the Company in consideration for the Company’s agreement to
lease the Facility to create an office and its associated operations and workforce, and to create
new jobs and employment opportunities, all within the City. The Company further agrees
that if the requirements of Section 2(b)(i) are not satisfied, the City shall not be obligated to
remit the Location Incentive Payment to the Company as required by this Section 2(b).
(c) Workforce Creation Incentive.
(i) Calculation of Actual Payroll Withholding Taxes. On or before March 15 of
each of the years 2025 through 2027, and provided the requirements of Section 2(c)(vi) are
satisfied, also on or before March 15 in each of the years 2028 and 2029, the City shall
calculate the Net Payroll Withholding (as defined below). For purposes of that calculation,
the Company acknowledges and agrees that for each calculation, the total amount of actual
payroll withholding taxes shall be determined based solely upon t he amount of payroll
withholding tax payments actually received by the City from the Company during the then
preceding calendar year. For purposes of this Section 2,
“Employees” shall include only those individuals employed by the Company
and subject to withholding for the City’s municipal income tax, and
“Net Payroll Withholdings” shall mean the result of (A) the actual payroll
withholding taxes received by the City during the then preceding calendar year from
all Employees minus (B) the municipal income tax refunds paid by the City to
Employees during the then preceding calendar year in respect of income earned as an
Employee.
(ii) 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.
(iii) Employer Identification Number. T he Company’s Federal Employer
Identification Numbers are as follows:
Company Name Federal Employer Identification
Number
Kalmbach Feeds, Inc 31-1162375
Kalmbach Swine Management 34-1879948
BIS Logistics LLC 87-3164987
The Company agrees that if any of the Federal Employer Identification Numbers change 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. S ubject to the Company’s
compliance with the requirements set forth in Section 2(d), if the Net Payroll Withholdings
equal or exceed the Target Withholdings (as defined in Section 2(c)(v)) for that preceding
calendar year, the City shall, on or before April 15 of the then current calendar year, pay to
the Company, solely from nontax revenues (as defined in Section 2(f)), an amount equal to
the product of (A) the Net Payroll Withholdings for that preceding calendar year multiplied
by (B) twenty percent (20%) (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 Section
2(c) to remit an Annual Incentive Payment or a Bonus Annual Incentive Payment to the
Company in excess of the Annual Cap (as defined in Section 2(c)(v)) in any calendar year,
and (2) the aggregate amount of all Annual Incentive Payments remitted pursuant to this
Section 2(c) by the City to the Company shall not exceed Sixteen Thousand Five Hundred
Dollars ($16,500), and if the requirements of Section 2(c)(vi) are satisfied, the sum of all
Annual Incentive Payments and Bonus Annual Incentive Payments remitted pursuant to this
Section 2(c) by the City to the Company shall not exceed Thirty-Two Thousand Five Hundred
Dollars ($32,500).
(v) Target Withholdings and Annual Cap. The Target Withholdings and the
Annual Cap for each of the calendar years 2024 through 2028 shall be as follows:
Calendar Year Target Withholdings Annual Cap
2024 $20,000 $4,500
2025 25,000 5,500
2026 30,000 6,500
2027(1) 35,000 7,500
2028(1) 40,000 8,500
(1) The Bonus Annual Incentive Payments in respect of calendar years 2027 and 2028 are also subject
to Section 2(c)(vi).
(vi) Bonus Annual Incentive Payments and Related Annual Cap. The City agrees
that if the Lease Agreement provides for a lease term of at least seven (7) years (rather than
five (5) years), then the Company shall be eligible to receive an Annual Incentive Payment (a
“Bonus Annual Incentive Payment”) in respect of calendar years 2027 and 2028 which will
be calculated at the same time and in the same manner as described in Section 2(c)(iv) and
paid in accordance with this Section 2; provided that any such Bonus Annual Incentive
Payment shall be subject to an Annual Cap (as defined in Section 2(c)(v)) in such calendar
year.
(vii) Forfeiture of Right to Receive Annual Incentive Payments. The Company
agrees and acknowledges that the Annual Incentive Payments and the Bonus Annual Incentive
Payment s provided for in Section 2(c) are being made by the City to the Company in
consideration for the Company’s agreement to lease the Facility and create an office and its
associated operations and workforce, and to create new jobs and employment opportunities,
all within the City. The Company further agrees that if the Target Withholdings requirement
is not met for any given calendar year as set forth in Section 2(c)(v), the City shall not be
obligated to make an Annual Incentive Payment or a Bonus Annual Incentive Payment to the
Company for the calendar year in respect of which the Target Withholdings requirement was
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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
a Bonus Annual Incentive Payment 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) Filings and Payment.
(A) Direct Filings and Payments. The Company agrees that it shall timely
(1) file all municipal income tax returns directly with the City and (2) remit all
municipal income tax payments directly to the City, each as required by the Dublin
City Code. Notwithstanding the prohibitions in Sections 2(d)(i)(B) and (C) below,
the Company may utilize the services of an accounting firm to provide for such filings
and/or payments, provided that any such filing and/or payment is not combined with
a filing and/or payment relating to any other taxpayer.
(B) Ohio Business Gateway. 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 2024 through 2026 (inclusive), and provided
the requirements of Section 2(c)(vi) are satisfied, also in respect of tax years 2027
and 2028, the Company either (1) files a related municipal income tax return or (2)
remits a related municipal income tax payment, in either case directly with the Ohio
Business Gateway instead of the City, then notwithstanding Section 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 Section
2(c)(iv) (each applicable payment being referred to as a “Required Payment”) in
respect of that tax year.
(C) Professional Employer Organizations. T he Company further
acknowledges that if in respect of any of the tax years 2024 through 2026 (inclusive),
and provided the requirements of Section 2(c)(vi) are satisfied, also in respect of
tax years 2027 and 2028, the Company engages a professional employer organization
to provide for the (1) filing of the Company’s municipal income tax return or (2)
remission of the Company’s municipal income tax payment, then notwithstanding
Section 2(d)(ii), the Company shall forfeit its right to receive and the City shall not be
obligated to remit any Required Payment in respect of that tax year.
(ii) City’s Determination of Company’s Compliance. 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
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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 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. 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.
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(c) Captions. The captions and headings in this Agreement are for convenience only and
in no way define, limit or describe the scope or intent of any provisions or sections of this Agreement.
(d) Day for Performance. Wherever herein there is a day or time period established for
performance and such day or the expiration of such time period is a Saturday, Sunday or legal holiday,
then such time for performance shall be automatically extended to the next business day.
(e) Economic Development Assistance Certification. The Company has made no false
statements to the City in the process of obtaining approval of the incentives described in this
Agreement. If any representative of the Company has knowingly made a false statement to the City
to obtain the incentives described in this Agreement, the Company shall be required to immediately
return all benefits received under this Agreement pursuant Ohio Revised Code Section 9.66(C)(2)
and shall be ineligible for any future economic development assistance from the State, any State
agency or a political subdivision pursuant to Ohio Revised Code Section 9.66(C)(1). The Company
acknowledges that any person who provides a false statement to secure economic development
assistance may be guilty of falsification, a misdemeanor of the first degree, pursuant to Ohio Revised
Code Section 2921.13(F)(1), which is punishable by a fine of not more than $1,000 and/or a term of
imprisonment of not more than six months.
(f) Entire Agreement. This Agreement constitutes the entire Agreement between the
Parties on the subject matter hereof and supersedes all prior negotiations, agreements and
understandings, both written and oral, between the Parties with respect to such subject matter. This
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 Liability. All covenants, obligations and
agreements of the Parties contained in this Agreement shall be effective to the extent authorized and
permitted by applicable law. No such covenant, obligation or agreement shall be deemed to be a
covenant, obligation or agreement of any present or future member, officer, agent or employee of the
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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.
(j) 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 a valid and binding obligation of
the Parties, enforceable in accordance with its terms.
(l) 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, or to such other address as the recipient shall have previously
notified the sender of in writing, and shall be deemed received upon actual receipt, unless sent by
certified mail, in which event such notice shall be deemed to have been received when the return
receipt is signed or refused. For purposes of this Agreement, notices shall be addressed to:
(i) the City at: City of Dublin, Ohio
5200 Emerald Parkway
Dublin, Ohio 43017
Attention: Economic Development Director
(ii) the Company at: Kalmbach Feeds, Inc.
7148 State Highway 199
Upper Sandusky, OH 43351
Attention: Jeff R. Siefker
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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 a tax 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 court to be invalid or unenforceable, that determination
shall not affect any other provision, covenant, obligation or agreement, each of which shall be
construed and enforced as if the invalid or unenforceable portion were not contained herein. That
invalidity or unenforceability shall not affect any valid and enforceable application thereof, and each
such provision, covenant, obligation or agreement shall be deemed to be effective, operative, made,
entered into or taken in the manner and to the full extent permitted by law.
(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) October 31, 2023, provided that as of that date the Company shall have theretofore
failed to satisfy the requirements of Section 1(b)(i) (i.e., deliver the executed Lease Agreement
to the City),
(ii) November 30, 202 3, provided that as of that date the Company shall have
theretofore failed to satisfy the requirements of Section 1(b)(ii) (i.e., receive the Certificate of
Occupancy for the Facility),
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1096778828\1\AMERICAS – 07-21-2023
(iii) December 31, 2023, provided that as of that date the Company shall have
theretofore failed to satisfy the requirements of Section 1(b)(iii) (i.e., occupy the Facility) or
(iv) the date 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.
(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.
CITY OF DUBLIN, OHIO
By:
Printed: Megan D. O’Callaghan
Title: City Manager
Approved as to Form:
By:
Printed: Jennifer D. Readler
Title: Director of Law
KALMBACH FEEDS, INC.
By:
Printed:
Title:
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1096778828\1\AMERICAS – 07-21-2023
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 2023 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: ____________, 2023
Matthew L. Stiffler
Director of Finance
City of Dublin, Ohio