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91-08 OrdinanceRECORD OF ORDINANCES Ordinance No. 91-08 CERTAIN INCENTIVES FOR THE PURPOSES OF RETAINING AND EXPANDING DAVE THOMAS FOUNDATION FOR ADOPTION AND ITS OPERATIONS AND WORKFORCE WITHIN THE CITY OF DUBLIN AND AUTHORIZING THE EXECUTION OF AN ECONOMIC DEVELOPMENT AGREEMENT AN ORDINANCE AUTHORIZING THE PROVISION OF Passed . 20 i 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 and retail development and provide for the creation of employment opportunities within the City; and WHEREAS, Dave Thomas Foundation for Adoption is desirous of retaining and expanding its operations and workforce within the City in consideration for the provision by the City of an economic development incentive; and WHEREAS, this Council has determined to offer an economic development incentive, the terns 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 Dave Thomas Foundation for Adoption to retain and expand its operations and workforce within the City, to retain jobs and employment opportunities and 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, this Council finds that it is in the best interest of the City to provide those economic development incentives to induce Dave Thomas Foundation for Adoption to retain and potentially expand its operations and workforce within the City and to provide for the execution and delivery of that Economic Development Agreement with Dave Thomas Foundation for Adoption. 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 Dave Thomas Foundation For Adoption, in the form presently on file with the Clerk of Council, providing for, among other things, the provision of incentives to the Dave Thomas Foundation for Adoption in consideration for the Dave Thomas Foundation for Adoption's agreement to retain its operations and workforce within the City, 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 and Director of Finance. The City Manager and Director of Finance, for and in the name of this City, are hereby authorized to execute that Economic Development Agreement, provided further that the approval of changes thereto by those officials, and their character as not being substantially adverse to the City, shall be evidenced conclusively by their execution thereof. This Council further authorizes the City Manager and the Director of Finance, 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 of Council, the Director of Law, the Director of Finance, or other appropriate :rs of the City to prepare and sign all agreements and instruments and to take any actions as maybe appropriate to implement this Ordinance. ~._, RECORD OF ORDINANCES Ordinance Nn. 91-OS Page 2 Passed 20 Section 3. This Council finds and determines that all formal actions of this Council concerning and relating to the passage of this Ordinance were taken in an open meeting of this Council and that all deliberations of this Council that resulted in those formal actions were in meetings open to the public in compliance with the law. Section 4. This Ordinance shall be in full force and effect on the earliest date permitted by law. Mayor -Presiding Officer Attest: .~~ Clerk of Council Passed: ~~~, ~ , 2008 Effective: `L. , 200 CITY fIF Dl'BLIV Office of the City Manager 5200 Emerald Parkway • Dublin, OH 43017 Phone: 614-410-4400 • Fax: 614-410-4490 To: Members of the Dublin City Council From: Marsha Grigsby, Interim City Manager ~'~~ <i~.~ry, Date: November 13, 2008 Memo Initiated by: Dana McDaniel, Deputy City Manager/Director of Economic Development Re: Ordinance 91-08, Dave Thomas Foundation for Adoption EDA Summary Staff has been in discussions with the Dave Thomas Foundation for Adoption. It was brought to Staff s attention that the Foundation was considering the possibility of relocating its operations and associated workforce outside of the City of Dublin. The City is proud to have the Dave Thomas Foundation for Adoption as part of its community and appreciates the quality workforce and jobs it provides within the Ciry of Dublin. Therefore, Staff presents to Council Ordinance 91-08 and an associated Economic Development Agreement (EDA) for the purpose of offering an incentive to the Dave Thomas Foundation for Adoption to retain and potentially expand operations and workforce within the City of Dublin. The Dace Thomas Foundation for Adoption was founded in Dublin and has been located on Tuller Road. They currently have eleven (11) employees with an annual payroll of $802,000. They desire to increase staff to thirteen (13) employees with an annual payroll of at least $1,190,000 by 2013. The EDA offers cone-time Incentive Grant of $7,500 to retain Dave Thomas Foundation for Adoption's operations and workforce in the City for a period of at ]east five years. The Foundation has executed a &ve (5) year lease at 525 Metro Place North with an option to renew for two (2) renewable terms of five (5) years each. Recommendation Staff recommends Council approve Ordinance 91-08 at the second reading/public hearing on December 8, 2008. ECONOMIC DEVELOPMENT AGREEMENT THIS ECONOMIC DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into this day of , 2008, 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 Dave Thomas Foundation for Adoption (the "Company" and collectively with the City, the "Parties"), an Ohio non-profit 501(c)(3) public charity with its main office to be located at 525 Metro Place North, Suite 220, Dublin, Ohio 43017, 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 provide for the retention and creation of employment opportunities within the City; and WHEREAS, the Company desires to locate its workforce and operations at offices at 525 Metro Place North, Suite 220, Dublin, Ohio 43017 and retain and potentially expand a workforce of approximately eleven (11) fulltime employees to fourteen (14) employees over the next five years within the City of Dublin; and WHEREAS, pursuant to Ordinance No.91-08 passed December 8, 2008 (the "Ordinance"), the City has determined to offer an economic development incentive described herein to induce the Company to retain its operations and workforce within the City, to create jobs and employment opportunities and 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 an incentive to induce the Company to retain its operations and expand its workforce within the City. NOW THEREFORE, the City and the Company covenant, agree and obligate themselves as follows: Section 1. The Company's Agreement to Retain Current Workforce at its Current Facility and Potentially Create Jobs; Execution of Lease. The Company presently employs eleven (11) full time employees at its site located at 525 Metro Place North, Suite 220, Dublin, Ohio 43017 (the "Company Facility"). The aggregate annual payroll of those employees is approximately $802,000. For consideration of the economic development incentive to be provided by the City herein, the Company agrees that it will retain its current workforce of eleven (11) fulltime employees at the Company Facility for a period of at least five (5) years. The Company agrees to make its best efforts to expand its workforce at the Company Facility to at least fourteen (14) by 2013. The Company intends to create such additional jobs and that the total estimated payroll for all of its employees in the City by the year 2013 could equal or exceed $1,190,000. The Company hereby agrees to execute a lease for its occupation and use of the Company Facility through at least December 31, 2013. Once the renewal or extension of such lease is completed, the Company agrees to provide written evidence of such renewal or extension to the City which shall be in a form which is reasonably acceptable to the City. The Company agrees that the City shall not be required to make any payment under this Agreement until such written evidence of such new or extended lease has been delivered to and accepted by the City. Section 2. City Agreement to Provide Incentive. (a) Incentive Payment to the Company. In consideration for the Company's agreement to retain existing operations, workforce and associated payroll within the City and with the intention to expand operations, workforce and associated payroll as outlined in Section 1 the City agrees to make a one time payment to the Company, solely from non-tax revenues, in the amount of $7,500 (the "Incentive Pcryrnent"), payable within thirty days of the date of this Agreement provided that the Company has delivered evidence to the City of the renewal or extension of its lease as also provided in Section 1. (b) Method of Payment. The payment to be paid to the Company, as provided for 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. (c) City's Obligation to Make Payments Not Debt; Payments Limited to Non-Tax 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 non-tax 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 non-tax revenues. For purpose of this Agreement, "nontcrx 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 unposed 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; and (viii) rental income which is deposited in the City's General Fund; and (ix) gifts and donations. -2- 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 the successors or assigns of the Parties. (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) Entire Agreement. This Agreement embodies the entire agreement and understanding of the Parties relating to the subject matter herein and therein and may not be amended, waived or discharged except in an instrument in writing executed by the Parties. (f) Events of Default and Remedies. Except as otherwise provided in this Agreement, in the event of any default in or breach of this Agreement, or any of its terms or conditions, by any Party hereto, such defaulting Party shall, upon written notice from any non-defaulting Party, proceed immediately to cure or remedy such default or breach, and, in any event, within thirty (30) days after receipt of such notice. In the event such default or breach is of such nature that it cannot be cured or remedied within said thirty (30) day period, then in such event the defaulting Party shall upon written notice from any non-defaulting Party commence its actions to cure or remedy said breach within said thirty (30) day period, and proceed diligently thereafter to cure or remedy said breach. In case such action is not taken or not diligently pursued, or the default or breach shall not be cured or remedied within a reasonable time, the aggrieved non-defaulting Party may institute such proceedings as may be necessary or desirable in its opinion to cure and remedy such default or breach, including, but not limited to, proceedings to compel specific performance by the defaulting Party. (g) 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. (h) 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 City or the Company other than in his or her official capacity, and neither the members of the legislative body of the City nor any official executing this Agreement shall be liable personally under this Agreement or be subject to any personal liability or accountability by reason of the execution thereof or by reason of the covenants, obligations or agreements of the City and the Company contained in this Agreement. -3- (i) Governing mow. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio or applicable federal law. 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. (j) Legal AuthoritX. 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. (k) Limit on Liability. Notwithstanding any clause or provision of this Agreement to the contrary, in no event shall City or the Company be liable to each other for punitive, special, consequential, or indirect damages of any type and regardless of whether such damages are claimed under contract, tort (including negligence and strict liability) or any other theory of law. (1) 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 ifhand-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 5844 Shier Rings Road Dublin, Ohio 43416-7295 Attention: Economic Development Director (ii) the Company at: Dave Thomas Foundation for Adoption 525 Metro Place North, Suite 224 Dublin, Ohio 43417 Attention: Rita Soronen 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. (m) 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. -4- (n) 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, rnade, entered into or taken in the manner and to the full extent pet-~nitted by law. (o) Survival of Representations and Warranties. All representations and warranties of the Parties in this Agreement shall survive the execution and delivery of this Agreement. 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 aboj~e. CITY OF DUBLIN, OHIO By: Printed: Marsha I. Grigsby Title: Interim City Mana,~er Approved as to Form: By: Printed: Stephen J. Smith Title: Director of Law Dave Thomas Foundation for Adoption By: -s- 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 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: .2008 Marsha I. Grigsby Interim City Manager/Director of Finance Cite of Dublin, Ohio -6-