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BUSINESS MAINTENANCE AND CONTINUED PERFORMANCE AGREEMENTBUSINESS MAINTENANCE & CONTINUED PERFORMANCE AGREEMENT INSTRUMENT TRANSFORMERS, INC. Clearwater Mail to: City of Clearwater Attn: Economic Development Director 112 S. Osceola Ave Clearwater, FL 33756 BUSINESS MAINTENANCE AND CONTINUED PERFORMANCE AGREEMENT THIS AGREEMENT is entered into this V"' "' day ofja-rdi 2014 by and between City of Clearwater, Florida, a municipal corporation of the State of Florida (the "City ") whose mailing address is 112 South Osceola Avenue, Clearwater, Florida 33756 and Instrument Transformers, Inc. ( "the Company "), a Florida corporation, 1925 Calumet Street, Clearwater, Florida 33765 whose mailing address is 1907 Calumet Street, Clearwater, Florida 33765. WITNESSETH WHEREAS, Article VII, Section 3, of the Constitution of the State of Florida and Section 196.1995, Florida Statutes, provide that the City may grant Economic Development Ad Valorem Tax Exemptions (EDAVTE) to New Businesses and Expansions of Existing Businesses, as defined in Section 196.012 (15)(16), Florida Statutes, by ordinance provided that the electors of the City, voting on the question in a referendum, authorize the City to adopt such ordinances; and WHEREAS, On November 6, 2012, City of Clearwater voters approved the referendum, authorizing the City Council of the City of Clearwater (the "Council ") to grant EDAVTEs pursuant to state law; and WHEREAS, the Council recognizes that it is a function of local government to promote economic development within its jurisdiction by providing financial incentives to encourage new businesses to relocate within its jurisdiction and existing businesses to expand creating employment opportunities and the utilization of local resources that will benefit the entire community; and WHEREAS, Chapter 29, Article VII of the Code of Ordinances City of Clearwater (the "Code ") sets forth the process and procedures for implementing the EDAVTE program; and, WHEREAS, Pursuant to Section 29.204 of the Code, Instrument Transformers, Inc. submitted an application to the City requesting an EDAVTE for seventy -five percent (75 %) of the assessed value of the qualifying improvements to real property and qualifying tangible personal property specified in its application for a period of ten (10) years, commencing with Tax Year 2014 ( "the Company Application "); and, WHEREAS, on December 19, 2013, in recognition of the economic stimulus Instrument Transformers, Inc. would provide to the community if it expanded its business, invested approximately forty -nine million dollars ($49,000,000.00), and added 143 new jobs in the City paying an average annual wage of at least forty -two thousand dollars ($42,000), the Council authorized an EDAVTE of seventy -five percent (75 %) of the assessed value of the net increase in qualifying improvements to real property and qualifying tangible personal property as set forth in the Company Application, to facilitate the expansion of its business ( "Instrument [GM13 -9216- 033/138606/1] 1 Transformers, Inc. Ad Valorem Tax Exemption ") for a period of ten (10) tax years, commencing with Tax Year 2014 through Tax Year 2023; and, WHEREAS, Pursuant to Ordinance No. 8436 -13, Instrument Transformers, Inc. agrees to satisfy the continued performance conditions set forth in the Company Application. NOW THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, hereby acknowledged by the parties, Instrument Transformers, Inc. and City agree as follows: 1. Incorporation. The recitals set forth above are incorporated herein in their entirety. 2. Ad Valorem Tax Exemption. Pursuant to Ordinance No. 8524 -13, City shall provide an EDAVTE of seventy -five percent (75 %) of the assessed value of the net increase in qualifying improvements to real property and qualifying tangible personal property as set forth in the Company Application to facilitate the expansion of its business ( "Instrument Transformers, Inc., Ad Valorem Tax Exemption ") for a period of ten (10) tax years, commencing with Tax Year 2014 through Tax Year 2023. 3. Business Maintenance and Continued Performance Conditions Requirement. Pursuant to Ordinance No. 8436 -13, Instrument Transformers, Inc. shall enter into an agreement with the City satisfying the Business Maintenance and Continued Performance Conditions as set forth in the Company Application as follows: a. Commencement of Operations: i. Instrument Transformers, Inc. currently conducts business at 1907 Calumet Street, Clearwater, Florida 33765, also known as 1925 Calumet Street, Clearwater, Florida 33765. b. Annual Report: Evidence of satisfaction of information in the Company Application dated November 4, 2013, and the Attachment Form DR -418 must be provided in the Annual Report to the Economic Development and Housing Department on or before March 1St of each year for which the Exemption is granted. The Company shall also timely comply with all filings required pursuant to F.S. s.196.011. c. Real Property Project Description: i. Instrument Transformers, Inc. shall add approximately 212,000 square feet of new construction with some demolition of an existing facility which will yield net new construction of approximately 197,000 square feet with an anticipated date of completion of March, 2015; [GM 13 -9216- 033/13 8606/ 1 ] 2 d. Tangible Personal Property and Real Property Capital Investment: i. Instrument Transformers, Inc. shall purchase or lease new manufacturing machinery and equipment. The anticipated date of purchase or lease is in the calendar year 2014. The estimated budget amount is $20.6 million; ii. Instrument Transformers, Inc. will expand and construct its building facility approximately between January, 2014, and March, 2015, with $25.4 million estimated construction budget; iii. Together, Instrument Transformers, Inc. shall invest approximately $46.0 million in capital, excluding land acquisition, as part of its expansion; e. New Jobs: i. Instrument Transformers, Inc. represents that as of November 4, 2013, the company employs 436 current full -time employees at its City of Clearwater facility and shall create 143 new jobs The Company will add 143 new jobs by December 31, 2015. f. Wages: i. Instrument Transformers, Inc. represents that the average annual wage of all new jobs shall together be no less than $42,000. g. Sales Factor /Current Sales: i. Instrument Transformers, Inc. represents that for 2013 the sales factor inside the Tampa -St. Petersburg - Clearwater, FL Metropolitan Statistical Area (MSA) was 0.75% and the sales factor outside the MSA was 99.25 %. h. Other Council Considerations for Exemption Determination: i. Instrument Transformers, Inc. shall strive to use local suppliers, where available; ii. Instrument Transformers, Inc. shall strive to hire employees located within City of Clearwater; iii. Instrument Transformers, Inc. shall strive continue to provide training opportunities for new and existing employees; iv. Instrument Transformers, Inc. shall continue to strive to be innovative in nature and offer new products /services when possible. 4. Ordinance No. 8524 -13 Requirements. Instrument Transformers, Inc. shall abide by all other requirements as defined in Ordinance No. 8524 -13. 5. Council Revocation. [GM 13- 9216 - 033/138606/1 ] 3 a. If Instrument Transformers, Inc. fails to satisfy the Business Maintenance and Continued Performance Conditions set forth in Section 3 of this Agreement, the Council may, upon 30 days written notice to Instrument Transformers, Inc., adopt an ordinance revoking or amending the ad valorem tax exemption as Council deems appropriate. b. Upon Revocation or Amendment, the Council shall immediately notify the Pinellas County Property Appraiser; c. If it is determined that for any year within the Exemption Period, Instrument Transformers, Inc. was not entitled to receive such Exemption, Instrument Transformers, Inc. may be subject to the taxes exempted in that year as a result of such failure plus annual interest at the maximum rate allowed by law; d. Nothing herein shall prohibit Instrument Transformers, Inc. from reapplying for an ad valorem tax exemption pursuant to State law. 6. Assignment. Except as hereinafter provided, neither this Agreement nor any rights, privileges, or claims created by this Agreement may be transferred by Instrument Transformers, Inc. without the prior written approval of the City, which approval will not be unreasonably withheld, conditioned or delayed; provided that Instrument Transformers, Inc. may assign this Agreement to any affiliate that assumes in writing all of Instrument Transformers, Inc. obligations under this Agreement and provides written notice of the assignment to the City within thirty (30) days after such assignment. Any attempted assignment in breach of this Agreement shall be void. 7. Controlling Law. This Agreement is entered into pursuant to the laws of the State of Florida, and shall be construed and enforced thereunder. In the event of litigation for any alleged breach of this Agreement, exclusive jurisdiction and venue for such litigation shall be in the Circuit Court of the Sixth Judicial District, in and for City of Clearwater, Florida, or the United States District Court for the Middle District of Florida, Tampa Division. In the event of any litigation concerning this Agreement, the parties waive all rights to a jury trial. 8. Notice. Any notices required under this Agreement shall be in writing and be addressed to the parties as shown below. Notices shall be delivered by certified or registered first class mail or by commercial courier service, and shall be deemed to have been given or made as of the date received. Instrument Transformers, Inc. Contact Lester McDaniel 1907 Calumet Street Senior Controller Clearwater, Florida 33765 727 - 298 -2033 [GM 13- 9216 -033/ 13 8606/ 1 ] 4 9. Force Majeure. Notwithstanding anything contained in the Act or this Agreement to the contrary, and subject to the terms of this Section, Instrument Transformers, Inc. failure to perform its obligations under this Agreement, other than with respect to the payment of money or the giving of any notice required hereunder, shall not be a default, and no disqualification shall occur as a result thereof, if any such failure or delay is due in whole in part to acts of God; acts of public enemy; war; riot; sabotage; blockage; embargo; failure or inability to secure materials, supplies or labor through ordinary sources by reason of shortages or priority; labor strikes, lockouts or other labor or industrial disturbance (whether or not on the part of agents or employees of either party hereto engaged in renovation or construction at the Facility); civil disturbance; terrorist act; fire, flood, windstorm, hurricane, earthquake or other casualty; any law, order, regulation or other action of any governing authority; any action, inaction, order, ruling, moratorium, regulation, statute, condition or other decision of any governmental agency having jurisdiction over any portion of the Facility, over the renovation or construction anticipated to occur thereon or over any uses thereof, or by delays in inspections or in issuing approvals by private parties or permits by governmental agencies; discovery of hazardous or toxic materials; failure of the Internet; failure of power, telecommunication, data connectivity or other services to be delivered to the Facility by any third party including any local utility provider; delays caused by any dispute resolution process; or any cause whatsoever beyond the reasonable control (excluding financial inability) of the party whose performance is required hereunder, or any of its contractors or other representatives, whether or not similar to any of the causes hereinabove stated. 10. Conflicting Law; Severability. If a Conflicting Law is enacted after the Effective Date, then the City and Instrument Transformers, Inc. shall meet and confer in good faith for a period of no less than thirty (30) and no more than ninety (90) days to seek to effectuate an amendment to this Agreement providing the City and Instrument Transformers, Inc. with the rights and remedies intended to be provided herein. Nothing herein shall preclude either the City or Instrument Transformers, Inc. from challenging the validity of any Conflicting Law. Each provision in this Agreement is severable. If any such provision is determined to be invalid or illegal, the validity and enforceability of the remainder of this Agreement shall be unaffected. If the Economic Development Ad Valorem Tax Exemption, or any portion thereof, is deemed by a court of competent jurisdiction to be ultra vices or not authorized by the laws or Constitution of the State of Florida, then the City shall use reasonable efforts to provide equivalent incentives to Instrument Transformers, Inc. as allowed by law. 11. Term. The term of this Agreement shall commence on the date of last signatory hereto (the "Effective Date ") and, unless sooner terminated, shall continue in force through December 31, 2023. 12. Amendments. This Agreement shall not be changed except by written instrument signed by all the parties. [GM13- 9216 - 033/138606/1 ] 5 13. Binding Effect and Effectiveness; Representations and Warranties. a. Subject to the specific provisions of this Agreement, this Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties and their respective successors and assigns, notwithstanding changes in corporate or other governance. b. Instrument Transformers, Inc. represents and warrants to the City that as of the date hereof and throughout the term of this Agreement: i. Instrument Transformers, Inc. is a for profit corporation, duly organized under the laws of the State of Florida, maintains a place of business within the State of Florida, and is validly existing and is doing business in the State of Florida as Instrument Transformers, Inc. ii. Instrument Transformers, Inc. has the power and authority to own its properties and assets and to carry on its business as now being conducted and has the power and authority to execute and perform this Agreement; iii. This Agreement (a) is the lawful, valid and binding agreement of Instrument Transformers, Inc. in its corporate name enforceable against Instrument Transformers, Inc. in accordance with its terms; (b) does not violate any order of any court or other agency of government binding on Instrument Transformers, Inc., the charter documents of Instruments Transformers, Inc. or any provision of any indenture, agreement or other instrument to which Instrument Transformers, Inc. is a party; and (c) does not conflict with, result in a breach of, or constitute an event of default, or an event which, with notice or lapse of time, or both, would constitute an event of default, under any material indenture, agreement or other instrument to which Instrument Transformers, Inc. in its corporate name is a party; iv. Instrument Transformers, Inc. has not received written notice of any action having been filed against Instrument Transformers, Inc. that challenges the validity of this Agreement or Instrument Transformers, Inc. right and power to enter into and perform this Agreement; and 14. Effective Date. This Agreement shall be effective on the date of the last signatory hereto. [GM13- 9216 - 033/138606/1] 6 IN WITNESS WHEREOF, the City and Instrument Transformers, Inc. have executed the Agreement as of the date first above written. WITNESSES: h nun() 4 .1\1(0 yO. a4 (Signature) 44116 (AO 5eJooI (Print Name) Approved as to form: Pamela K. in City Attorney Instrument Tr By: Title: Date: sformers, Inc. ames Koepsell General Manager CITY OF CLEARWATER, FLORIDA By: W 2 A,vw . Attest: William B. Horne II City Manager caulk Q Q Rosemarie Call City Clerk [GM13- 9216 - 033/138606/1 ] 7