Ordinance 27-11RECORD OF ORDINANCES
Blank, Inc.
Ordinance No. 27 -11
Passed
20
AN ORDINANCE AUTHORIZING THE PROVISION OF CERTAIN
INCENTIVES TO NETSMART TECHNOLOGIES, INC. TO INDUCE
IT TO RETAIN AN OFFICE AND ASSOCIATED OPERATIONS AND
WORKFORCE 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 provide
for the retention and creation of employment opportunities within the City; and
WHEREAS, Netsmart Technologies, 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 within the City to retain an office and
associated operations and workforce 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 a facility within the City and retain an office and
associated operations and workforce within the City, which will result in the creation of
new jobs and the retention of existing jobs, 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, —7-- 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 a facility within the City for the retention of an
office and associated operations and workforce within the City, which will result in the
creation of new jobs and the retention of existing jobs, 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.
RECORD OF ORDINANCES
Blank. Inc.
Ordinance No. 27 -11 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 shall be in full force and effect on the earliest date
permitted by law.
Signed:
� r
Mayor - resi ling Officer
Attest:
Clerk of Council
Passed: ;3 2011
Effective: oZoZ 2011
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CITY OF DUBLIN_
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017 -1090
Phone: 614 - 410 -4400 • Fax: 614- 410 -4490
Memo
To: Dublin City Council Members
From: Marsha Grigsby, City Manager `Ag---
Date: May 5, 2011
Initiated By: Colleen Gilger, Economic Development Administrator
Summary
Re: Ordinance 27 -11- Economic Development Agreement with Netsmart
Technologies
Staff has been in discussions with Netsmart Technologies regarding the possible expansion of the
company's office and workforce. The company, which is located at 570 Metro Place North in
Dublin, has explored relocation and expansion opportunities throughout Central Ohio and other
states.
Netsmart Technologies, Inc. is a supplier of software solutions to health and human services
providers and payers nationwide. Netsmart is a combination of its former Creative -Socio Medics
subsidiary and several strategic acquisitions, including CMHC Systems (founded in Dublin,
Ohio), ContinuedLearning, Addiction Management Systems, QS Technologies and Therapist
Helper. The company serves as the trusted partner for more than 18,000 customers, including
individual private practices, small group providers, community health centers, counties and more
than 35 state systems. The company is headquartered in New York and employs over 400 people
nationwide.
The Economic Development Agreement proposed to Netsmart includes a four -year, 10%
Performance Incentive on withholdings collected, which is capped at $100,000 for the term of the
agreement, in consideration of the company retaining 104 jobs, creating 99 jobs in Dublin by the
end of 2015, and signing a five -year lease extension. The company would have to reach
predetermined annual withholdings targets to qualify for performance incentives.
Additionally, the company is eligible to receive a $30,000 Retention Grant payment for a three -
year lease extension beyond the initial five -year term. A second $30,000 Retention Grant is
available for a second three -year lease extension. Staff estimates the City would pay Netsmart
approximately $150,823 and net approximately $2,729,000 in withholdings over the agreement
term, should the company grow according to expectations and extend leases within Dublin for a
full 11 -year period.
Recommendation
Staff recommends Council approval of Ordinance 27 -11 at the second reading/public hearing on
May 23, 2011. Please contact Colleen Gilger with any questions you may have.
ECONOMIC DEVELOPMENT AGREEMENT
THIS ECONOMIC DEVELOPMENT AGREEMENT (the `Agreement") is made and entered into
this day of , 2011, 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 NETSMART TECHNOLOGIES, INC. (the
"Company" and together with the City, the `Parries "), a Delaware corporation, 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, 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 retain an office and associated operations and
workforce within the City; and
WHEREAS, pursuant to Ordinance No. -11 passed on , 2011 (the
"Ordinance "), the City has determined to offer the economic development incentives described
herein to induce the Company to lease a facility within the City for the retention of an office and
associated operations and workforce within the City, which will result in the creation of new jobs
and the retention of existing jobs 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 within the City and
retain its operations and workforce within the City;
Now THEREFORE, the City and the Company covenant, agree and obligate themselves as
follows:
Section 1. Company's Agreement to Lease a Facility and Retain Its Operations an d
Workforce Within the City In consideration for the economic development incentives to be
provided by the City herein, the Company agrees that it will lease a facility within the City for the
retention of an office and associated operations and workforce within the City, all consistent with
the terms of this Agreement. The Company expects to create ninety -nine (99) new employee
positions within the City by December 31, 2013. The average annual wage of these employees is
estimated to be Fifty -Nine Thousand Six Hundred Ninety -Three Dollars ($59,693), with total
estimated payroll withholdings of approximately One Hundred Eighteen Thousand One Hundred
Ninety -Two Dollars ($118,192) over the term of this Agreement. The Company also expects to
retain one hundred four (104) existing employee positions within the City. The average annual
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wage of these employees is estimated to be Fifty -Nine Thousand Six Hundred Seven Dollars
($59,607), with total estimated payroll withholdings of approximately One Hundred Twenty -One
Thousand Nine Hundred Two Dollars ($121,902) over the term of this Agreement. The Company
agrees that the City's obligations to remit payments pursuant to Section 2 of this Agreement shall be
contingent upon (a) the Company delivering to the City a fully executed copy of an agreement
evidencing the Company's lease of a facility within the City for a period of at least five (5) years
and (b) the Company's satisfaction of the Actual Withholdings requirements in Section 2.
Section 2. City Agreement to Provide Incentives
(a) General In consideration for the Company's agreement to lease afacility within the
City for the retention of an office and associated operations and workforce within the City, the City
agrees to provide economic development incentives to the Company in accordance with this
Section.
(b) Location Incentives
(i) Location Incentive One - Payment to the Company The City agrees that if
the Company commits, at the conclusion of the initial five (5) year lease term referenced in
Section 1 (which commitment is expected to occur between June — December 2016), to
extend such existing lease, or commit to be located at another location within the City, for a
minimum additional term of three (3) years (with a term of approximately 2017 through
2020), the City will, within ninety (90) days of the Company delivering to the City a fully
executed copy of an agreement evidencing the Company's irrevocable commitment to
remain in the City for at least three (3) additional years, remit a payment to the Company in
the amount of Thirty Thousand and 00 /100 Dollars ($30,000.00).
(i) Location Incentive Two - Payment to the Compan y The City agrees that if
the Company commits, at the conclusion of the thee (3) year additional term referenced in
subsection 2(b)(i) (which commitment is expected to occur between June — December
2019), to extend such additional term, or commit to be located at another location within the
City, for an additional minimum term of three (3) years (with a term of approximately 2020
through 2022), the City will, within ninety (90) days of the Company delivering to the City a
fully executed copy of an agreement evidencing the Company's irrevocable commitment to
remain in the City for an additional minimum term of three (3) years, remit a payment to the
Company in the amount of Thirty Thousand and 00 /100 Dollars ($30,000.00).
(iii) Forfeiture of Right to Receive Incentive Payments The Company agrees
and acknowledges that the Location Incentives provided for in subsection 2(b) are being
made by the City to the Company in consideration for the Company's agreement to commit
to one or more extensions of the initial lease within the City for the retention of an office
and associated operations and workforce within the City and to create additional
employment opportunities and retain existing employment opportunities, all within the City.
The Company further agrees that if the requirements of respective subsections 2(b)(i) and
2(b)(ii) are not satisfied, the City shall not be obligated to remit the respective Location
Incentives to the Company as required by this subsection 2(b).
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(c) Workforce Creation Incentive
(i) Calculation of Actual Pavroll Withholding Taxes On or before March 15 of
each of the years 2013 through 2016, the City shall calculate the actual payroll withholding
taxes collected and received during the preceding calendar year and in respect of that
preceding calendar year by the City from all Employees (as defined below). For purposes of
that calculation, the Company acknowledges and agrees that the total amount of actual
payroll withholding taxes in respect of any calendar year shall be determined based solely
upon the amount of payroll withholding tax payments actually received by the City from the
Company during that calendar year. The Company agrees that the determination of whether
to include in such calculation any amount received by the City in respect of any calendar
year but following the conclusion of that calendar year, shall be solely within the discretion
of the City. For purposes of this Section 2, `Employees" shall include only those individuals
employed by the Company and working within the City.
(ii) Information Relating to Employees The Company agrees that, in
accordance with the Dublin City Code, the annual payroll reconciliation and related W -2
forms relating to its Employees will be provided to the City prior to February 28 of each
calendar year.
(iii) Incentive Payments to the Company If the actual payroll withholding taxes
collected and received by the City 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 "), meet or exceed the Target Withholdings (as defined in
subsection 2(c)(iv)) for that preceding calendar year, the City shall, on or before April 15 of
the then current calendar year, pay to the Company, solely from nontax revenues (as defined
in subsection 2(e)), an amount equal to the product of (A) an amount equal to the Actual
Withholdings, multiplied by (B) ten percent (10 %) (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)(iv)) 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 One Hundred Thousand
and 00 /100 Dollars ($100,000.00).
(iv) Target Withholdings and Annual Cap The Target Withholdings and Annual
Cap for each of the calendar years 2012 through 2015 shall be:
Calendar Year Target Withholdings Annual Cap
2012 $ 183,980 $ 25,000
2013 224,397 25,000
2014 246,232 25,000
2015 253,619 25,000
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(v) Forfeiture of Right to Receive Workforce Creation Incentive Payment The
Company agrees and acknowledges that 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 execute a lease within the City for the retention of an office and
associated operations and workforce within the City and to create additional employment
opportunities and retain existing 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)(iv), the City shall not be obligated to
make an Annual Incentive Payment to the Company for the calendar year in respect of
which the Target Withholdings requirement was not satisfied. Failure to meet the Target
Withholdings requirement in respect of any one calendar year does not prohibit the
Company from receiving an Annual Incentive Payment for any subsequent calendar year in
respect of which the Target Withholdings requirement is satisfied.
(d) 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.
(e) 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, "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.
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(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.
(i) Governing Law 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
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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.
0) 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.
(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 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
5800 Shier Rings Road
Dublin, Ohio 43016 -7295
Attention: Economic Development Director
(ii) the Company at: Netsmart Technologies, Inc.
Dublin, Ohio 4301
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.
(m) 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
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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.
(n) 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.
(o) 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.
(p) Survival of Representations and Warranties All representations and warranties of
the Parties in this Agreement shall survive the execution and delivery 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
Printed: Marsha I. Grigsbv
Title: Citv Manager
Approved as to Form:
C
Printed: Stephen J. Smith
Title: Director of Law
NETSMART TECHNOLOGIES, INC.
Printed:
Title:
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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
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: .2011
Director of Finance
City of Dublin, Ohio
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