Ordinance 30-11RECORD OF ORDINANCES
Ordinance No
30 -11 passed 1 20_
AN ORDINANCE AUTHORIZING THE PROVISION
OF CERTAIN INCENTIVES TO PAIN CARE
SPECIALISTS, LLC TO INDUCE IT TO LOCATE A
MAIN 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, Pain Care Specialists, LLC (the "Compan)") 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 acquiring a facility within the City to locate a main 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 acquire a facility within the City and locate a main office and
associated operations and workforce within the City, which will result in the creation of
new 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, THE ORE, BE IT ORDAINED by the Council of the City of Dublin, State
of Ohio, _ I 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 acquire a facility within the City for the location of a
main office and associated operations and workforce within the City, which will result
in the creation of new 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
Ordinance No. 30 -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:
Q in .,
Attest:
Clerk of Council
Passed: 13 2011
Effective: 2011
CITY OF DUBLIN.
Office of the Citv Manager
5200 Emerald Parkway • Dublin, OH 43017 -1090
Phone: 614 - 410 -4400 • Fax: 614- 410 -4490
To: Dublin City Council
From: Marsha I. Grigsby, City Manager
Date: May 19, 2011
Initiated By: Colleen Gilger, Economic Development Manager
Re: Ordinance 30 -11- Economic Development Agreement with Pain Care Specialists, LLC
Summary
Staff has been in discussions with Pain Care Specialists regarding the possible location and
consolidation of the company's two medical practice facilities in Hilliard and Westerville. The
company has explored facility acquisition, new facility construction, and consolidation opportunities
throughout the northern portion of Central Ohio. The specific project under consideration would
involve the company acquiring a facility and consolidating its practice and workforce into Dublin.
Pain Care Specialists is a group of physicians with more than 45 years of combined experience in the
specialty of Interventional Pain Management. Its doctors have been providing care to people with
chronic cancer and non- cancer pain in Ohio and neighboring states since 1979. The practice is
comprehensive in the treatment of various chronic pain conditions. It is the only Pain Management
Center in Central Ohio that is accredited by The Accreditation Association for Ambulatory Health Care,
Inc-
The Economic Development Agreement proposed by Economic Development to Pain Care Specialist
includes a S 15,000 Location Grant payable upon proof of ownership and occupancy permit of a Dublin
facility, and a five -year, 20 percent Performance Incentive on withholdings collected, which is capped
at S 125,000 for the term of the agreement, in consideration of the company creating 34 jobs in Dublin
by the end of 2014. The company would have to reach predetermined annual withholdings targets to
qualify for performance incentives. Additionally, if the company meets all five of the annual targets, it
automatically qualifies for a sixth year performance payment of S25,000. The overall agreement cap
payment for the Pain Care Specialists incentive is S165,000 and the City expects to net approximately
$525,000 in withholdings over the agreement term should the company grow according to expectations
and meet all associated targets outlined in the agreement.
Recommendation
Staff recommends Council passage of Ordinance 30 -11 at the second reading/public hearing on June
13, 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 PAIN CARE SPECIALISTS, LLC (the "Company"
and together with the City, the `Parties "), an Ohio limited liability company, 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 locate a main office and associated operations and
workforce within the City; and
WHEREAS, pursuant to Ordinance No. 30 -11 passed on , 2011 (the
"Ordinance "), the City has determined to offer the economic development incentives described
herein to induce the Company to acquire a facility within the City (the "New Facility") for the
location of a main office and associated operations and workforce within the City, which will result
in the creation of new 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 acquire the New Facility within the
City and locate 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 Acquire a Facility and Locate Its Operations and
Workforce Within the City In consideration for the economic development incentives to be
provided by the City herein, the Company agrees that it will acquire the New Facility within the
City for the location of an office and associated operations and workforce within the City, all
consistent with the terms of this Agreement. The Company expects to create thirty -four (34) new
employee positions within the City by December 31, 2014. The total estimated payroll
withholdings of those employees is estimated to be approximately Five Hundred Thirty -One
Thousand and 00 /100 Dollars ($531,000.00) overthe term of this Agreement.
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Section 2. Citv Agreement to Provide Incentives
(a) General In consideration for the Company's agreement to acquire the New Facility
within the City for the location of a main 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 Incentive
(i) Incentive Pavment to the Company The Company agrees to acquire the
New Facility within the City for the location of a main office and associated operations and
workforce within the City. In consideration of the Company's agreement to locate that
office and create additional employment opportunities within the City, the City agrees to
provide to the Company a Location Incentive (the "Location Incentive ") in the aggregate
amount of Fifteen Thousand and 00 /100 Dollars ($15,000.00), payable to the Company
within thirty (30) days following the delivery to the (1) City of documentation
demonstrating ownership by the Company (or an affiliated entity) of the New Facility and
(2) Company of an occupancy permit for the New Facility, the delivery of which, the City
agrees to not unreasonably withhold, condition or delay.
(ii) Forfeiture of Right to Receive Incentive Payments The Company agrees
and acknowledges that the Location Incentive provided for in subsection 2(b) is being made
by the City to the Company in consideration for the Company's agreement to acquire the
New Facility within the City for the location of a main office and associated operations and
workforce within the City and to create additional 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 Location Incentive 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 2012 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
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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) 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 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 Twenty -Five
Thousand and 00 /100 Dollars ($125,000.00) and if the requirements of subsection 2(c)(v)
are satisfied, 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 Fifty
Thousand and 00 /100 Dollars ($150,000.00).
(iv) Target Withholdings and Annual Cap The Target Withholdings and Annual
Cap for each of the calendar years 2011 through 2015 shall be:
Calendar Year
Target Withholdings
Annual Cap
201,
$ 73,657
$ 25,000
2012
111,322
25,000
2013
112,724
25,000
2014
115,542
25,000
2015
118,431
25,000
(1) Target Withholdings for 2011 will be prorated and this chart assumes aMay 1, 2011 move -in date.
(v) Bonus Annual Incentive Payment and Related Annual Cap If the aggregate
of the Company's Actual Withholdings for calendar years 2011 through 2015 meet or
exceed the aggregate of the Target Withholdings for calendar years 2011 through 2015, then
the Company shall be eligible to receive a Bonus Annual Incentive Payment in respect of
calendar year 2016 which will be calculated and paid in accordance with this Section 2,
provided that such Bonus Annual Incentive Payment shall be subject to an Annual Cap in
the amount of Twenty -Five Thousand and 00 /100 Dollars ($25,000.00).
(vi) 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 acquire the New Facility within the City for the location of amain
office and associated operations and workforce within the City and to create additional
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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. Subject to subsection 2(b)(v), failure to meet the Target Withholdings requirement
in respect of any one calendar year does not prohibit the Company from receiving the Bonus
Annual Incentive Payment described in subsection 2(b)(v).
(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.
(b) Binding Effect The provisions of this Agreement shall be binding upon the
successors or assigns of the Parties.
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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) 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
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.
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(j) 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: Pain Care Specialists, LLC
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
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.
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(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 o(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
MM
Printed: Marshal. Grigsbv
Title: Citv Manager
Approved as to Form:
C
Printed: Stephen J. Smith
Title: Director of Law
PAIN CARE SPECIALISTS, LLC
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
during Fiscal Year 2011 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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